The High Court has ordered David Walshe and Waterford Trans Freight Storage & Warehousing Limited to give up possession of a house at 2 Manor Walk, Rosehill, Kilkenny, by 31 October 2024, unless a further stay is granted. Mr Justice Kennedy found that the registered owner had a strong case that the defendants were trespassers and that Walshe had not shown an arguable basis for his adverse possession claim. The order is interlocutory: it does not finally determine the claims or defences at trial.
Adrian Fox bought the property from Everyday Finance DAC for €170,000 in August 2023 and became its registered owner. The sale terms disclosed that the house was occupied. Fox sought orders restraining trespass and requiring the occupants to hand over possession while the proceedings continue. He discontinued the case against Caroline O’Grady. The judgment records that the occupants had not identified themselves in correspondence; the court considered Walshe the author or instigator of that correspondence.
Walshe said the property was his home and relied mainly on a claim that he had occupied it long enough to acquire title by adverse possession. His accounts differed on when he moved in: an earlier affidavit said 2013, while later material asserted 2011. The judge held that Walshe had not adequately explained the discrepancy or supplied supporting evidence, despite being given further opportunity after the injunction hearing. The court also considered a 2016 High Court order requiring Walshe to give up the property, which it found had not been set aside. It concluded that the adverse possession claim was not an arguable basis to resist the present application. That conclusion was for the interim application, not a final determination of any separate claim.
The judge applied the higher test for interlocutory relief because the application sought mandatory orders that could effectively decide the dispute in practice. He also assessed proportionality and the balance of justice, including the impact of eviction from a dwelling. He found those considerations favoured Fox, noting the strength of his registered title, the absence of a demonstrated lawful right to occupy, and the earlier possession order. Although the court accepted that leaving would adversely affect Walshe and considered family circumstances raised with it, it found alternative accommodation appeared available.
The injunction also applies to the company, which the evidence indicated had operated from the property and used it as its registered office when proceedings began. It does not presently apply to the “persons unknown” named as a defendant. The order is stayed until 31 October to allow Walshe time to make arrangements and pursue pending applications. The court said any extension would require detailed evidence and should not be assumed. It left open the possibility of Walshe pursuing his section 49 application and seeking damages under Fox’s undertaking if ultimately successful. Costs submissions were invited by 9 September 2024, with replies by 16 September.