The Court of Appeal has refused Bernard (otherwise Ben) Gilroy’s appeal against High Court injunctions obtained by Start Mortgages DAC, leaving the restrictions in place pending trial of the lender’s action. The orders restrain Gilroy from attempting to arrest specified people associated with the lender and its legal team, publishing information about their home addresses or property, giving legal advice or assistance relating to Start Mortgages, and publishing allegations that the lender or its lawyers are perpetrating fraud. He was also ordered to remove online material published since 24 October 2019 that referred to the lender.
The appeal concerned interlocutory relief, not a trial of the lender’s claims or a determination that fraud had occurred. The Court of Appeal said the High Court had no evidence before it to support Gilroy’s fraud allegations: he did not file a replying affidavit, despite being offered the opportunity. The appeal court said it therefore could not treat his bare assertions as evidence of truth or justification.
The dispute arose after Gilroy took original title documents from Start Mortgages’ offices during an inspection meeting in May 2019. The lender sought their return and injunctions after correspondence in which Gilroy threatened to publish documents and home addresses and to arrest people associated with the lender. He later posted videos and material online, including calls to organise a group to carry out arrests and instructions about resisting possession claims. The judgment records that a separate High Court order in 2018 had permanently restrained him from advising or assisting others in litigation in a representative capacity.
On the claimed power to arrest, the appeal court held that section 4 of the Criminal Law Act 1997 governed the issue. It said a person other than a garda may make an arrest only within the statutory conditions, including reasonable cause to suspect that the person would otherwise evade arrest by a garda. The court found no evidence that any garda intended to arrest the people Gilroy had threatened, or that the statutory conditions for his proposed arrests were met. It upheld the High Court’s decision to restrain him.
The court also upheld the restrictions on legal assistance and publication. It found the High Court was entitled to regard Gilroy’s instructional videos and draft documents as assistance relating to the lender. It concluded that, given the serious allegations, the lack of evidence supporting them and the risk of harm to the named groups, the High Court had acted within its discretion in granting the injunctions. The appeal court rejected Gilroy’s complaints about the short notice of the hearing, noting he declined an opportunity to seek an adjournment to file an affidavit.
The Court of Appeal refused the appeal in full. Its provisional view was that the respondent should receive the costs of the appeal, subject to any application on costs.