The Court of Appeal has rejected Charles McGuinness’s appeal against the striking out of his trespass proceedings against Kevin McGarry over entry to a property at 4 College Street, Cavan.
In a judgment delivered on 16 February 2023, Ms Justice Costello said the High Court had acted fairly and within its discretion when it struck out the case. The appeal court held that the validity of the mortgage and the receiver’s appointment could not be determined without the bank and receiver as defendants. It also held that the receiver’s role as a third party in McGarry’s claim did not make him a defendant to McGuinness’s claim.
The dispute followed McGarry taking possession of the property and changing its locks on 4 March 2019. McGarry’s defence said he had acted on the receiver’s instructions. The property was then let to a tenant. McGuinness claimed the entry was trespass and argued that a court order was required before possession could be taken. He also disputed the validity of the 2003 mortgage and the receiver’s appointment.
At the High Court hearing in April 2022, the judge explained that McGuinness could not obtain findings about the mortgage or appointment without suing the bank and receiver. McGuinness declined to adjourn at that point to consider adding them as co-defendants, and said he would proceed on the argument that a court order was required. The judge concluded that even this issue could not properly be decided without the receiver, and struck out the proceedings against McGarry in their entirety.
On appeal, McGuinness argued that the receiver was already before the court as a third party and would be bound by any judgment. The Court of Appeal rejected that submission: third-party proceedings created a legal dispute between McGarry and the receiver, not between McGuinness and the receiver. It said the receiver could only become a defendant to McGuinness’s claim if McGuinness joined him in that capacity.
The appeal court also rejected the fair-trial challenge, finding that McGuinness had been given an opportunity to address the problem and had made a deliberate choice not to sue the bank or receiver, which the judgment said was to avoid potential costs. His later request to adjourn came only after the High Court had ruled to strike out the case.
The appeal was rejected. The court’s provisional view was that McGarry should receive the costs of the appeal, while allowing McGuinness ten days to request a short hearing to argue for a different costs order. The judgment did not determine the merits of any new proceedings McGuinness might bring.