The Court of Appeal has dismissed Donal McNeela’s appeal against procedural directions made by the High Court in a dispute over properties in Dublin and Waterford. The court said the appeal was substantially moot and reserved all outstanding issues to the High Court.
The appeal concerned an order made on 8 October 2020, when the High Court directed McNeela to file a replying affidavit by 22 October and adjourned a receiver’s application for interlocutory injunctions to 28 October, with costs reserved. The Court of Appeal said the High Court judge had full jurisdiction to deal with the motion on 8 October. It found no basis to set aside or otherwise interfere with that order.
The receiver, Tom O’Brien, had been appointed by Everyday Finance DAC in February 2020 under mortgage deeds covering properties at 85 and 86 Amiens Street, Dublin 1, and Units 120 to 124 at Waterford Industrial Estate. The proceedings sought injunctions to prevent McNeela and a co-defendant, Martin Meehan, from interfering with the receiver’s functions, as well as orders relating to possession. The High Court struck out the case against Meehan on 8 October 2020, with no order as to costs.
McNeela argued that the High Court lacked jurisdiction because the plenary summons had not been served before the receiver obtained leave to issue a notice of motion or before the later directions. The Court of Appeal acknowledged that the initial papers sent on 4 August omitted the summons. It found, however, that a copy was sent under cover of a letter dated 11 August and delivered by registered post on 12 August. McNeela had acknowledged receiving it. The court found he had identified no tangible prejudice from the omission and delay.
The judgment explained that the rules did not require the summons to be served before the receiver’s ex parte application for leave. It also left questions about the sufficiency of service, including any application to have service declared sufficient, for the High Court to assess in the substantive proceedings.
The appeal was confined to the 8 October order. Directions made on 28 October were later vacated on 6 November, and the interlocutory motion remained before the High Court. The Court of Appeal said the order under appeal had been superseded and a decision on it could have no practical effect on the live proceedings. It dismissed the appeal, ordered costs against McNeela, and said those costs should, so far as possible, be borne by his share of the net receivership proceeds rather than Meehan’s interests. Either party could seek a different costs order by notifying the court within five days of the judgment.