The High Court has refused to stay interlocutory orders requiring Noel and Una Rogers to vacate a property held by Start Mortgages DAC, which the court described as mortgagee-in-possession. Ms Justice Butler gave her ruling on 8 February 2022, dealing with the form of the orders, costs and Una Rogers’s applications to pause them pending trial or appeal.
The orders followed an earlier judgment granting the plaintiff interlocutory relief in proceedings alleging that the defendants returned to the property and took up occupation after eviction. The court’s ruling concerns the orders consequential to that judgment; it does not determine the full action or the proposed appeal.
Noel Rogers did not attend the earlier hearing and was not represented. He had told the registrar he was unwell and supplied a medical certificate, but did not seek an adjournment. The court was told that the defendants had separated and that Una Rogers and the children were living at the property. The judge accepted the plaintiff’s concern that Noel Rogers might return if no order were made against him, given the earlier re-entry. She directed that he be served with the order and allowed him one month from its perfection to apply, on notice, including to have the orders against him set aside.
The judge ordered Una Rogers to pay the plaintiff’s costs of the injunction application, with those costs reserved until the trial court’s final determination. She also allowed her the costs of one of two motions seeking extra time to file a replying affidavit. The judge said the motion was reasonable given Una Rogers’s illness with Covid-19, public-health restrictions and the plaintiff’s solicitor not replying to a request for consent. The motions were moot by the time of the hearing and were not decided on their merits.
Una Rogers sought a stay pending trial and, alternatively, pending an appeal. The judge refused both. She said staying the orders until trial would undo the purpose of the interlocutory relief already granted. On appeal, she accepted that the argument about the legal status and lifespan of a possession order could be arguable, but found no material change to the balance of justice previously assessed.
The judge cited the undisputed evidence that the defendants owed more than €700,000, that a possession order had been obtained in 2008, and that only €5,000 had been paid towards the debt since 2012. She also referred to the eviction on 10 March 2020 and the defendants’ return that day. These were matters considered in the stay ruling, not a final determination of the underlying proceedings. The order refusing a stay leaves the interlocutory orders in effect while the action and any appeal remain unresolved.