The High Court has ordered Eileen Daly to pay Allied Irish Banks plc’s costs arising from her intervention in the bank’s possession proceedings, while limiting the stay on possession to 28 days and, if she appeals in time, until the appeal’s first return date.
Mr Justice Garrett Simons delivered the ruling on 26 March 2021. It addressed the final orders following his 22 March supplementary judgment, which held that Daly, described as the reputed lessee, had no right to possession of the mortgaged property as against the bank. The judge said the possession order made on 27 April 2020 was therefore effective against her. The judgment noted that the position between Daly and Richard Finbarr Fitzgerald was different, but did not affect the bank’s rights.
The judge said Daly’s intended appeal appeared weak, referring to Court of Appeal comments in Kennedy v O’Kelly. He stressed those comments were not definitive and that he was not predicting the appeal’s ultimate result. The 28-day stay would run from perfection of the order, allowing time to consider and bring an appeal within the prescribed period. If an appeal was lodged in time, the stay on possession would continue only until its first return date. Daly could then ask the Court of Appeal for a longer stay. The judge cited both the perceived weakness of the appeal and the delay since the April 2020 possession order in declining to grant an open-ended stay.
On costs, the judge applied the default position for a party who has been entirely successful. He said Daly had raised and lost arguments that the bank consented to or acquiesced in a lease created in 2002, and that the Residential Tenancies Act 2004 protected her. Her intervention required written submissions and a hearing on 15 March 2021. The judge rejected the argument that she could not face a costs order because she was not a party: she had been formally made a notice party and allowed to be heard. The order covers applications and costs since her intervention, including reserved costs, submissions, affidavits, hearings and the transcript of a digital audio recording. Execution of the costs order is stayed pending determination of any appeal.
The judgment also said Daly could arrange with the bank to collect personal effects from the property within 28 days. The judge understood the person then occupying the premises to be there under a caretaker’s licence, and said that person had no particular rights to weigh in the stay decision. Either side was given liberty to apply on four working days’ notice if difficulty arose with the order.