The High Court has dismissed an appeal by John Duffy against a Circuit Court injunction restraining him from trespassing on property repossessed by Irish Life and Permanent plc. It also dismissed a motion to consolidate related High Court proceedings with the Circuit Court case.
The dispute began with an ejectment action based on an allegedly defaulted mortgage held by the defendants, John and Kathleen Duffy. The Circuit Court made a possession order on 10 May 2004. An execution order followed on 31 May 2005, but the bank did not then execute it. Instead, the order was renewed about six times, most recently on 20 November 2013. The bank took possession on 18 November 2014. The judgment says the first defendant later re-entered the premises, after which the bank sought an injunction. The Circuit Court granted it on 26 April 2017.
Duffy argued that the 2013 renewal was invalid because it was made without notice to him, and that the bank therefore could not obtain an injunction. Related High Court proceedings, brought by the defendants and another family member, alleged that execution of the possession order was wrongful and amounted to trespass. They sought damages and an injunction. The judgment does not determine those allegations.
Justice Noonan said the Circuit Court rules permitted renewal of an execution order in the Circuit Court office “at any time” while the underlying judgment remained in force. He distinguished the Circuit Court rule from the Superior Courts rule, which expressly requires renewal during the continuance of the renewed order. The Circuit Court rule, he said, contains no equivalent restriction. The original execution order had been made within six years of the possession judgment, so the rules did not require a court application on notice for the renewal.
The judge found no merit in the challenge to the renewal made on 20 November 2013. He also said that a challenge alleging the order was made without jurisdiction should be brought by judicial review to quash it, rather than by an indirect attack on an order valid on its face.
The appeal was dismissed, leaving the Circuit Court injunction in place. The consolidation motion necessarily failed as a result. The judgment does not resolve the separate trespass and damages claims.