The Court of Appeal has refused Ben Gilroy’s application to pause a High Court order requiring the defendants to give KBC Bank possession of a property at 37 Hamlet Avenue, Balbriggan, and restraining interference with the bank’s possession.
The application concerned only a stay pending Mr Gilroy’s appeal against the High Court order of 15 March 2018. The Court of Appeal did not decide the underlying plenary claim for possession. It held that Mr Gilroy had shown no arguable ground of appeal and that, in any event, the balance of justice favoured refusing a stay.
The judgment records that the bank had obtained a Circuit Court possession order in 2016, which Gordon Smith did not appeal. The bank said Smith had mortgaged the property to secure loan facilities. As of 27 February 2018, arrears were €87,865.69 and the total outstanding balance was €274,887.70.
According to affidavits described in the judgment, a sheriff’s attempt to execute the order on 26 February 2018 was obstructed, though possession was taken. The bank alleged that Smith, Linda Hussey and others later retook possession, and that Mr Gilroy encouraged people to do so. Mr Gilroy denied some allegations, including that he filmed the confrontation and posted it to Facebook. These were reported allegations and denials, not findings made on the stay application.
The bank then brought plenary proceedings and sought interim and interlocutory injunctions. On 15 March, the High Court granted interlocutory relief requiring the named defendants to deliver up possession and restraining them, and people with notice, from obstructing the bank or trespassing. Mr Gilroy appealed that order and sought a stay.
He argued, among other things, that the Circuit Court order was void and that the sheriff’s entry breached the constitutional protection for a dwelling. The Court of Appeal said Mr Gilroy could defend the claims made against him personally, but could not advance potential rights belonging to Smith or Hussey. It also noted there was no evidence before it that Smith had been present when the Circuit Court order was made or had a defence with him.
The court said Mr Gilroy did not own or reside at the property and had not shown that his own constitutional rights were affected. It therefore found he lacked standing to rely on the proposed third-party rights as grounds of appeal. The court added that the bank would otherwise remain unable to enforce the Circuit Court possession order, and that Mr Gilroy had not shown he could compensate the bank for losses if a stay were granted. The application was refused.