FFrench -O'Carroll v Permanent TSB PLC (formerly known as Irish Life and Permanent PLC) & ors [2017] IEHC 851 (09 November 2017)

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> FFrench -O'Carroll v Permanent TSB PLC (formerly known as Irish Life and Permanent PLC) & ors [2017] IEHC 851 (09 November 2017) URL: http://www.bailii.org/ie/cases/IEHC/2017/2017_IEHC_851.html Cite as: [2017] IEHC 851

PERMANENT TSB PLC (FORMERLY KNOWN AS IRISH LIFE AND PERMANENT PLC),

EX TEMPORE JUDGMENT of Mr. Justice Tony O’Connor delivered on the 9th day of

1. These proceedings came before me on 25th and 26th October, 2017, by way of a notice

of motion issued on 13th February, 2017, on behalf of the fourth and fifth named

defendants (“these defendants”) seeking specific interlocutory orders arising from their

2. An order by consent was made on 26th October, 2017, changing the name of the fourth

3. Following the opening of the application Mr. Brady SC, for the plaintiff/respondent,

explained what he considers a killer point to the claim of these defendants to take

possession, lease and/or sell premises at the rear of 55 Fitzwilliam Square, previously

rented out to a restaurant (“the Fitzwilliam premises”). Mr. Brady prepared written legal

submissions overnight on 25th October, 2017, in reply to the submissions of Mr. Fanning

SC, for these defendants. This morning, Mr. Brady enlightened me further in relation to a

few authorities which he will rely upon at trial including those of Laffoy J. in EBS v.

Gillespie [2012] IEHC 243 (unreported, High Court, 21st June, 2012), and GE Capital

Woodchester Home Loans Ltd v. Reade and Another (No 1) [2012] IEHC 363 (unreported,

4. Although it might comfort the plaintiff for this Court to give an initial view in support of

Mr. Brady’s strident position, it is clear that such a view cannot be definitive because:-

(a) This application only involves ascertaining whether there is a prima facie or

(b) Any view of the Court will be confined to a consideration of the alleged

demand letter of 2nd December, 2010, (nearly seven years ago) to the

plaintiff from the first named defendant in the proceedings. The Court should

not engage in delivering advice or judgments supportive of one side or

another in advance of a full trial. It only considers whether there is a fair

issue or serious issue to be tried. There are procedures for seeking an order

directing the trial of a preliminary issue of fact or law. The Court in making

this comment is not encouraging such an application but is merely explaining

an application to this Court for determination as between the plaintiff and the

5. Without dwelling much further on this aspect, I stress that there is little if any opposition

now by these defendants to the striking out of the applications for interlocutory orders set

out at paras. 2-6 inclusive of the notice of motion because they relate to the Fitzwilliam

(i) the contents of the letter from the solicitors for these defendants to the

plaintiff’s solicitors dated 8th November, 2017, as directed to be furnished by

(ii) the fact that the fifth named defendant (“the receiver”) has been and

remains in possession of the Fitzwilliam premises with no threat from the

plaintiff despite the claim which the plaintiff will make at a plenary hearing;

(iii) the welcome attitude of counsel for these defendants to the Court’s

suggestion that it need not embark on determining whether it has a view

which supports the submissions made by Mr. Brady on the law relating to the

(iv) the undertaking given on behalf of these defendants, that neither of these

defendants will dispose, whether by sale or otherwise, of the Fitzwilliam

6. Again, the Court appreciates the candour of counsel that the receiver can be taken to be

lawfully appointed to these properties, at least for the purpose of this application. Certain

advices will be given to the plaintiff I am told following a consideration of a judgment

delivered by Baker J. notwithstanding the delivery of the amended statement of claim on

1st November, 2017, in accordance with my order of 26th October, 2017. The amended

statement of claim indicates that the validity of the appointment of the fifth named

7. The essential issue is the balance of convenience, whether one or other party will be able

to pay the other the damages which arise if they lose at the plenary trial. The

maintenance of the status quo is also relevant. The plaintiff, in accordance with my

order, swore an affidavit giving details about the tenancies and vacancies in the premises

8. These defendants have given an undertaking to the Court to pay the plaintiff such

damages as may be assessed if required and no question arises about their ability to

discharge same. The plaintiff, on the other hand, admits to having recovered rent and

refers to maintenance and other costs. Although the plaintiff has had a business

relationship with the tenants and is familiar with the property, I agree with counsel for

these defendants that they will be obliged to perform their statutory and contractual

duties to maintain and look after the property whether through professional estate

management agents or whoever. It was agreed that whatever rents will be collected and

received by the receiver will be placed in an account from which disbursements can be

made for maintenance. The plaintiff does not dispute his multimillion euro debt and does

not appear to be in a secure position to repay rents. It is a fair proposal for the receiver

to maintain and look after the Longwood Avenue property while collecting rents to be

placed in an account for ease of transparency. The Court, therefore, grants an

interlocutory injunction in the terms of paras. 2 and 3 of the notice of motion as set out in

the letter of 8th November, 2017, from the solicitors for these defendants confined to the

properties described in the second schedule to the amended statement of claim delivered

9. The plaintiff has furnished an affidavit with exhibits in compliance with my earlier order

and rather than make a general order for records to be discovered, I encourage the

parties to limit the amount of discovery and work by the orders and directions which I will

make now in an effort to allocate a trial date in January or February 2018.

(i) an order directing the plaintiff to deliver his reply and defence to the counterclaim

by 22nd November, 2017, and copy same to each of the solicitors on record for the

(ii) an order requiring the plaintiff to issue a motion returnable for 23rd November,

2017, and serve with at least five days’ clear notice seeking directions for:-

(a) the delivery of defences by the other defendants within a specific timeframe

(b) the delivery of replies to the defences to the amended statement of claim;

sought by each and all of the plaintiff and the defendants by a date which I

(d) the exchange of estimates of legal fees and outlays which will be incurred by

the parties from 23rd November, 2017, to the end of a plenary trial.

11. This latter direction arises from my concern that the legal costs of so many parties at a

plenary hearing will be disproportionate to the claims for damages which will be pursued

ultimately. In this regard, I mentioned earlier the welcome candour of Mr. Brady

concerning the merit of relying on the claim in the amended statement of claim relating to

12. On 18th December, 2018, Ní Raifeartaigh J. delivered judgment ([2018] IEHC 794) in

which she determined questions posed in a case stated concerning the entitlement to

appoint a receiver.

Result: Limited interlocutory injunction granted to counter claimants with directions for expedited hearing.

High Court of Ireland Decisions