The High Court has granted Start Mortgages an interlocutory injunction requiring Noel Rogers and Una Rogers to leave a property in Coravilla, Bailieborough, while the lender’s trespass proceedings continue.
In a judgment delivered on 2 November 2021, Ms Justice Butler found that the defendants had not shown a credible, substantial basis for arguing that their eviction on 10 March 2020 was invalid. The ruling concerns interim relief only; the lender’s plenary claim, including its claim for damages for trespass, remains to be determined.
The dispute arose from a mortgage loan of €404,585 drawn down in 2006 and secured on the property. The High Court made an order for possession in 2008. After seeking further leave in 2018, the lender obtained an order of possession from the court’s Central Office in July 2019. That order was executed by the County Cavan under-sheriff in March 2020.
The second defendant argued that the 2018 order granting leave to issue execution had expired before the eviction, making the subsequent steps invalid. She also argued that the lender’s proceedings were out of time because they began more than 12 years after the 2008 possession order.
The judge rejected those arguments at the interlocutory stage. She said the 2018 order authorised the lender to take the step of obtaining an order of possession; it did not itself authorise an eviction. The separate order issued in July 2019 was an execution order in its own right and could be acted on for one year. The judge also held that the current proceedings were based on alleged trespass after the 2020 execution, rather than enforcement of the 2008 judgment, so the 12-year limitation period did not bar them.
The second defendant said she and her husband returned to the property about half an hour after the eviction. She relied on an alleged conversation in which an agent supposedly told her husband they could return, and said a lock had been left on a pathway. The judge found the account unpersuasive, noting that she had been told she was being evicted and given a letter explaining that belongings could be collected by arrangement. The first defendant did not appear at the hearing or swear an affidavit supporting her account.
The court considered the application prohibitory in nature, restraining an ongoing trespass, but said the defendants’ arguments would not meet even the higher threshold for a mandatory injunction. It found that the balance of convenience favoured the lender, including because no undertaking as to damages had been offered and there was no basis to conclude the defendants could meet a damages order. The injunction was granted pending final determination of the proceedings.