Irish Court of Appeal

APPROVED                                                                   NO REDACTIONS REQUIRED

         

                                                                                               

         

THE COURT OF APPEAL

 

Neutral Citation Number [2025] IECA 65

Record Number: 2024/256

High Court Record Number: 2015/8625P

 

Allen J.

O'Moore J.

McDonald J.

 

 

 

BETWEEN/

 

STRATEGIC LAND INVESTMENTS LIMITED

PLAINTIFF/RESPONDENT

 

-AND-

 

KENNY GALWAY LIMITED

 

DEFENDANT/APPELLANT

 

 

 

 

JUDGMENT of Mr. Justice McDonald delivered on 20^th March 2025

Introduction

1.             This is an appeal by the defendant/appellant from an interlocutory order made by the High Court on 9^th October 2024 (on foot of an earlier judgment delivered on 22^nd July 2024) which, by its terms, restrains the appellant from trespassing on certain property of the plaintiff/respondent. There is also an appeal from a decision of the High Court judge refusing to re-open his judgment when additional evidence came to light after the delivery of the judgment which the appellant contends the respondent ought to have placed before the High Court prior to the hearing of the application in May 2024.

2.             For the reasons discussed in more detail below, I have come to the conclusion that the restraining order made by the High Court should be set aside. In summary, I have come to that conclusion for two reasons. In the first place, I am of opinion that the evidence placed by the respondent before the High Court was materially misleading in circumstances where it suggested that, absent an injunction, a sale of land might be frustrated. The true position was that, by the time the application came before the High Court for hearing, the lands in question had, in fact been disposed of. The transaction in question had closed six months prior to the hearing before the High Court but, notwithstanding that highly significant fact, the respondent, in pursuing its application for an interlocutory injunction, continued to rely on the existing evidence highlighting a concern that a sale might be frustrated and did not disclose the true position either to the High Court or to the appellant. Secondly, I am of the view that the balance of justice weighs against the grant of an injunction. This follows from two factors. The first is that the main premise for seeking the injunction had fallen away. The sale that had been of such concern to the respondent had completed. The second factor is that, in pursuing the application for interlocutory relief, the respondent had shown no urgency and, in parallel with that application, had taken no steps to progress these proceedings.

3.             Before addressing the issues which arise on the appeal, it is necessary to describe the backdrop to the application for the interlocutory injunction. As the record number suggests, these proceedings were commenced as long ago as 2015. The plenary summons was issued on 27^th October 2015. Almost four years passed before a statement of claim was delivered on 26^th September 2019. In the statement of claim, it was alleged that, since 2012, the appellant had trespassed on the respondent's lands comprised in Folio GY38141F County Galway by "driving over the said lands with motor vehicles and parking motor vehicles upon it and the Defendant has taken possession of the said lands".

4.             Prior to the delivery of the statement of claim, the appellant had brought an application to dismiss the proceedings for want of prosecution. That application was issued in January 2019 and was ultimately struck out by consent in December 2019 with an order for costs in favour of the appellant. Nothing further appears to have happened in the proceedings until a new firm of solicitors came on record for the plaintiff on 27^th February 2023. Not long afterwards, that firm sent a letter to the appellant on 16^th March 2023 in which it was stated that the proceedings had been "stayed when your client vacated the occupation of our client's lands...". That suggestion was not subsequently pursued in the evidence and must be discounted for the purposes of this appeal. There is simply no evidence that the proceedings were stayed by agreement between the parties but it is the case that, until the letter of 16^th March 2023, nothing had happened in the proceedings since the order of 2^nd December 2019. The letter then continued:

"We have recently been advised by our client that your client has recommenced such trespass, traversing our clients said lands with motor vehicles and parking them thereon.

We hereby formally call upon your client to desist from such Trespass, remove all vehicles and materials from the lands the subject matter of the proceedings within 10 days from the date hereof, failing which the proceedings shall be re-entered and brought before the court without further notice, to seek an interlocutory injunction against your client, together with an order for costs of the said Motion." (emphasis added)

5.             The only property identified in the letter was the land comprised in Folio GY38141F. Notwithstanding the warning that an application for an interlocutory injunction would be brought if the alleged trespass did not cease, no such application was brought until almost three months later. In the meantime, no response had been received by the respondent's solicitors to their letter. However, on 10th May 2023, the solicitors for the appellant wrote to estate agents in Galway (who appear to have been acting for the respondent in relation to the intended sale described below) to complain that the agents were advertising property for sale which appeared to "include lands to which our client is entitled."

6.             The application for the interlocutory injunction subsequently issued on 12th June 2023. The motion sought two orders, the first was an order seeking leave to amend the statement of claim to assert a claim not solely in relation to Folio GY318141F but also Folios GY60589F and GY25809. The second relief sought was an injunction to restrain the appellant from trespassing on any of the lands comprised in those three folios. No application was made for "short service"  of the motion or for an early return date. Instead, the motion was given a return date of 12th July 2023.

The property in issue

7.             Before I describe the motion in any detail, it may be helpful to describe the property in issue. On the basis of the respondent's case, the lands in issue form part of the common areas of a small business park known as City North Business Park near Ballybrit racecourse on the outskirts of Galway city. The business park is situated on the Tuam Road. There are currently two businesses operating there, namely the appellant and An Post. The appellant operates a car sales premises which the appellant holds under a 999 year lease dated 12 June 2003 granted by the respondent's predecessor in title, Kenny Business Parks Ltd. Its premises face north west towards the Tuam Road but without direct vehicular access to it. The larger premises of An Post lie immediately behind and to the south east of the car sales business.

8.             In order to access both premises from the Tuam Road, it is necessary to follow an internal  estate road which opens onto the Tuam Road some distance to the south west of both premises. That estate road runs parallel to the Tuam Road until it reaches the appellant's premises when it makes a sharp turn to the right and to the south east to allow access to An Post's premises. There are currently no other businesses situated along the estate road (much of which appears to traverse Folio GY38141F). Until it turns to the right and to the south east, the estate road is separated from the Tuam Road by a grassed area which is partly contained within Folio GY60598F and partly within Folio GY25809. The grassed area runs in a south west to north east orientation and it varies in width. For present purposes, it should be noted that the grassed area is wide enough to allow cars or other motor vehicles to be parked on it but it plainly was not designed for that purpose. The grassed area is divided by a stone wall which creates two relatively long and narrow strips of land when shown on a plan or map. These were very helpfully delineated on a map at appendix F to a report prepared by John Hanahoe (an engineer engaged by the respondent) where they are described as Strip B and Strip C (and that description was also used in the judgment of the High Court judge). Strip B runs along much of the length of the estate road until the turn to the right described above. For much of its length, it is separated from the Tuam Road by Strip C (which runs along the Tuam Road itself) but as one approaches the appellant's premises, Strip C comes to an end and accordingly, for part of its length, Strip B is bounded both by the Tuam Road to the north west and the estate road to the south east. Strip B comes to an end at the boundary to Folio GY3814F immediately to the south west of the north western boundary of the appellant's premises close to the point where the estate road takes a turn to the right and the south east. However, there is an area of ground to the north east of Strip B that continues along the Tuam Road, to one side, and along the north western boundary of the appellant's premises, on the other side, until it reaches the north eastern boundary of Folio GY38141F (which is also the boundary of the business park). It is this area of ground which separates the appellant's premises from the Tuam Road. It is also the area of ground that was the sole subject of the action for trespass when these proceedings were commenced in 2015. It is shown on the engineer's map as Strip A and is so described in the judgment of the High Court.

The affidavit grounding the application for an interlocutory injunction

9.             Having described the relevant features of the business park, I now return to the application brought by the respondent in June 2023. The motion which I have already described was grounded on an affidavit of Mr. Brian McHugh, a director of the respondent, which was sworn on 9th June 2023. In the context of an application for an interlocutory injunction, it is a remarkably terse affidavit running to no more than two pages. The affidavit did not exhibit any documents establishing the respondent's ownership of the lands in issue. It did not describe the nature of those lands. It simply referred to the lands by reference to the relevant folio numbers. It did not reveal that the lands form part of a business park or that the appellant had an established business there. No case was made that the lands in issue form part of the common areas of the business park. The affidavit did not exhibit the lease under which the appellant holds its interest in its own premises which, incidentally, contains a covenant not to place goods for sale in any of the common areas of the business park. That covenant was not invoked by the respondent during the course of the application for the interlocutory injunction. Even more remarkably, the affidavit did not identify the acts of trespass alleged against the appellant. Mr. McHugh merely referred to the fact that the proceedings had been instituted to restrain the appellant from trespass on the lands contained in Folio GY38141F. He claimed in rather vague terms that "subsequently, the Defendants did for the most part resile from such trespass". He then suggested that the alleged trespass had recommenced but he did not identify precisely when this is alleged to have occurred. Consistent with the respondent's solicitors' letter of almost three months earlier, he merely said in para. 3 that the defendant had "in recent times" recommenced trespass not only on Folio GY38141F but also on the adjoining lands comprised in Folios 60598F and 25809. While Mr. McHugh did not describe the nature of the latter lands, it subsequently emerged in the evidence that the complaint arises in respect of the grassed areas which I have described earlier as Strips B and C.

10.         In his affidavit, Mr. McHugh referred in passing to a sale of property but without identifying the nature or extent of the property or providing any information in relation to the progress of the proposed sale. He merely noted that, although no response was received to the respondent's solicitors' letter of 16th March 2023, the letter from the appellants' solicitors of 10th May 2023 (mentioned in para. 5 above) had been received by BV Real Estate, auctioneers "engaged ... for the sale of the said lands" and he exhibited the letter. Mr. McHugh also said very little about the damage to which the respondent would be exposed if an interlocutory injunction was not granted. All he said was that the activities of the appellant (which were nowhere described in the affidavit) "are calculated to unlawfully interfere with and frustrate the sale process of the lands and will have an injurious affection (sic) on the market value" and that "the unlawful action of the Defendant could, in the event of a successful agreement for sale, either abort or indefinitely delay the closure of said sale". That was the only basis on which Mr. McHugh suggested that the respondent would suffer irreparable harm if the injunction sought was not granted.

11.         One further feature of Mr. McHugh's affidavit should be noted. He exhibited a copy of the proposed amended statement of claim which was now intended to address not only the pre-existing claim in respect of Folio GY38141F (i.e. Strip A) but also the claim in respect of Folios GY60598F and GY25809. In the draft, the paragraph quoted in para. 3 above has been struck through and replaced by a paragraph in the following terms:

"Since 2012 the Defendant, its servants or agents without the consent of the Plaintiff have trespassed upon the Plaintiff's said lands ... which are comprised in the said Folios 38141 60598 and 25809 ..." (emphasis added)

12.         That plea should be kept in mind in considering the issues addressed further below. The plea very clearly suggests that the alleged trespass has been ongoing since 2012 not only in respect of Strip A but also Strips B and C.

13.         Before proceeding further, a number of observations arise on foot of Mr. McHugh's affidavit:

(a)        First, an application for an interlocutory injunction is a very serious step to take. It is an application asking the Court to intervene and make an order regulating the commercial or other conduct of the parties before the Court is in any position to reach a conclusion as to which of the parties is right and which is wrong in relation to the dispute the subject matter of the proceedings. For that reason, the evidential basis for any such application needs to be put forward with an appropriate level of detail so that the Court can understand and assess the implications of any order, if granted. In this context, I have already highlighted some of the inadequacies in Mr. McHugh's affidavit which was clearly insufficient to give the Court any understanding of the relevant facts and circumstances against which the respondent's application fell to be assessed.

(b)        Second, the evidence must be sufficient to address the two key elements for the grant of an interlocutory injunction namely whether the party seeking the injunction has established a fair issue to be tried (or, where mandatory relief is sought, whether the applicant for the injunction has shown that it has a strong case to make) and whether the balance of justice lies in favour of the grant or refusal of the injunction. For the reasons described above, Mr. McHugh's affidavit plainly failed to do this. The only matter that was (very briefly) addressed was the balance of justice in so far as he referred to the potential that a sale of land might be put in jeopardy in the event that an interlocutory injunction was not granted.

(c)        Third, an application for an injunction is only justifiable in circumstances where there is an urgent need for the Court to intervene to regulate the conduct of the parties in advance of the trial. An applicant for an injunction must therefore act with all due expedition and, if any significant time has elapsed since the facts forming the basis for the application first arose, the applicant for the injunction should be in a position to explain the apparent delay. This means that, in any application for an interlocutory injunction, the applicant should identify when the facts giving rise to the application first came to the applicant's attention. The Court is entitled to expect that this will be set out with an appropriate level of precision. It is manifestly insufficient to say, as the respondent did here, that the activity sought to be restrained arose "in recent times". This is especially so in circumstances where this was said in an affidavit sworn in June 2023 when a similarly vague assertion had been made in a warning letter sent three months previously.

The progress of the application seeking an interlocutory injunction

14.         When the application for the interlocutory injunction came before the court in July 2023 it was adjourned to 11^th October, 2023 to enable a replying affidavit to be sworn on behalf of the appellant and a response to that to be sworn on behalf of the respondent.  It appears to have been agreed that the appellant could have until 14^th September, 2023 to deliver its replying affidavit and that the respondent would have a period of three weeks thereafter in which to deliver its response.  In the meantime, on 14^th July, 2023, although no order had yet been made giving the respondent leave to deliver an amended statement of claim, the appellant, very helpfully, delivered a full defence and counterclaim to the amended statement of claim in which it maintains that it has either acquired title by adverse possession or that it has, through long user acquired an easement over Strip A and also over the grassed areas in Strips B and C allowing it to display its vehicles there.  Declarations to that effect are sought in the counterclaim. 

15.         On 14^th September, 2023, Mr. Brian Kenny swore an affidavit on behalf of the appellant in response to Mr. McHugh's affidavit.  Much of the affidavit is concerned with Strip A.  For the purposes of this judgment, it is unnecessary to address that element of Mr. Kenny's evidence in any detail.  Although the respondent pursued an application for an interlocutory injunction in respect of Strip A in addition to Strips B and C, that element of its application was refused by the High Court judge and there is no cross-appeal.  It should, however, be noted that, in para. 9 of his affidavit, Mr. Kenny stated that the appellant had been in sole occupation of Strip A since "in or about 2003", had laid tarmacadam over it and used it to park cars in front of its showroom. He also claimed that the appellant had been solely responsible for its upkeep and maintenance.

16.         Mr. Kenny then addressed Strips B and C as follows in paras. 10 - 11 of his affidavit: 

"10.     In addition to the occupying and using that strip of land, the Defendant has been in sole occupation and used the lands contained in Folios 60598F and 25809 of the register of freeholders for the County of Galway since 2003 onwards. I beg to refer to copies of Folios 60598F and 25809 together with screenshots as downloaded from the Land Registry and upon which marked with the letters and "BK2"  I have signed my name prior the swearing hereof. I beg to refer to certified copies of the said folios and filed plans when produced.

11.       As can be seen therefrom, these strips of land are to the west of Folio 38141F. These strips of land have been used and maintained by the Defendant to park and display cars beside the road approaching the Defendant's show room."

17.         In paragraph 12 of his affidavit, Mr. Kenny stated that the predecessor in title to the respondent, Kenny Business Parks Ltd. wrote to the appellant in April 2003 and May 2004 taking issue regarding the appellant's use of the "lands which the Plaintiff now seeks to restrain the Defendant from using".  In paragraph 13 of his affidavit, Mr. Kenny confirmed that, notwithstanding the contents of those letters, the appellant "... continued to use the lands to the exclusion of all others and the Plaintiffs predecessor failed to take any steps to stop the Defendant from using the lands."

18.         The letter of April 2003 (to which Mr. Kenny refers) is in very general terms.  However, the letter of 18^th May, 2004 from Kenny Business Parks Ltd. is in more detail and is of some importance for present purposes. 

"Re: Estate Management Issues City Business Park

Dear Sir,

We refer to the above and advise that:

1.                  You are continuing to park unauthorised on developed green areas not in your control along the entrance road into the development. 

This is resulting in long term difficulties in access for grass cutting purposes with the resultant meadow effect that will have to be mowed initially with strimmers and then cut.  Please arrange to cut the grass at your expense without delay as it is compromising the appearance of the development for us all.  In addition there are considerable tyre marks/damage along the green area with the resulting cost of rotovation and resodding for which we expect you to reimburse us for in full or to carry out the works yourself under our Architects supervision.

...You are also using many of the footpaths of the Estate to park your cars in an unauthorised fashion despite previous written reminders and we will be holding you liable for all damage to same to date which are compromising our bonding position. ..." (emphasis added).

19.         The letter was signed by Michael Pender, a director of Kenny Business Parks Ltd.  It is clear from the description of the parking described in the letter that the parking complained of was on the grassed areas along the entrance road into the development (i.e. the estate road described in para. 8 above).  At minimum, it appears likely that this must be a reference to Strip B which lies along the entrance road to the development.  It may also refer to Strip C. While Strip C is on the Tuam Road side of the grassed area, its south western tip adjoins the entrance to the business park.  Importantly, the reference to the grassed area cannot refer to Strip A as it does not adjoin the entrance road to the development.

20.         In his affidavit, Mr. Kenny drew attention to the previous history of the proceedings and noted that the respondent was only registered as owner of the three Folios in issue on 15^th October, 2018.  He then addressed the suggestion made by Mr. McHugh in para. 3 of his grounding affidavit that the appellant had ceased occupying the lands after the proceedings were issued.  He said that this was incorrect and he said that the appellant had continued to use the lands after the commencement of the proceedings "as it had done since 2003".  In support of that contention, he exhibited three screenshots from Google Maps Street View which he said show "photographs of the lands from June 2017, July 2019 and October 2022".  These show a number of cars parked on the grassed area on the north western side of the estate road in 2017.  However, the photograph suggests that there were only two vehicles parked on the grassed area at that point.  While there are other vehicles parked further away, it is difficult to determine whether they are parked on a grassed area or on the appellant's premises.  The photograph from 2019 shows a similar scene.  The photograph from 2022 shows more vehicles parked on the grassy bank alongside the estate road.  In para. 18 of his affidavit, Mr. Kenny says that the cars and vans shown in these photographs are parked on the grassed areas contained in Folios 60598F and 25809. 

21.         In the course of the hearing of the appeal, counsel for the respondent criticised the evidence produced by Mr. Kenny and suggested that it fell far short of establishing the claim to adverse possession and also fell short of establishing that the appellant had acquired an easement permitting parking on the lands in issue. He maintained that Mr. Kenny has provided no detailed evidence as to the nature, extent or duration of the parking on the grassed areas.  While there is some force in that suggestion by counsel for the respondent, the material does show that cars of the appellant were being displayed on the grassed areas to some extent in 2017, 2019 and 2022.  It therefore identifies some level of user of the grassed areas for this purpose and it also identifies that it was done openly and that, contrary to the suggestion made by Mr. McHugh, the activity was not of recent origin.

22.         With regard to the balance of justice, Mr. Kenny said that the appellant is unaware of whether the respondent had proceeded with the proposed sale. As it transpired, that was a significant averment. As will be seen, no response to that averment was made by Mr. McHugh notwithstanding that it has since become known that, four days following the swearing of Mr. McHugh's affidavit, a contract was executed by the respondent with a company called Sheils Motorpark Ltd. ("Sheils") for the grant to Sheils of a 999 year Lease over another part of the business park. Given the emphasis placed by Mr. McHugh in his affidavit of June 2023 on the risk that the sale would be frustrated, one would expect that the issue would be addressed by Mr. McHugh in any response to Mr. Kenny's affidavit.

23.           On the other hand, it is a striking feature of Mr. Kenny's affidavit that he said nothing at all about the likely impact which the injunction might have on the business of the appellant.  Thus, although the affidavit of Mr. Kenny provides significantly more detail about the surrounding facts and circumstances than had been provided by Mr. McHugh in his grounding affidavit, many of the criticisms I have previously raised in relation to Mr. McHugh's affidavit apply equally to it.  In order for the Court to form a view as to the balance of justice, it is critically important that both parties would address on affidavit the implications for them of the making or refusal of the order sought. 

24.         In reply to Mr. Kenny's affidavit, Mr. McHugh swore an affidavit on 5^th October, 2022.  In that affidavit he exhibited a helpful report from an engineer which describes the lands in more detail and provides some helpful plans and some photographs including a number of photographs taken by a drone on 3^rd and 11^th August, 2023.   Those photographs show many cars on display in the appellant's premises on 3^rd August 2023.  They also show extensive parking of vehicles on Strip A on that day. The photographs show scant evidence of any parking on Strips B on that day.  However, there is a photograph at page 11 of Appendix H to the engineer's report which shows what appear to be two vehicles parked on Strip B on that date immediately next to a sign which also appears on the same strip of land advertising the business of the appellant.  There is also more extensive parking shown on  Strip C on 3^rd August 2023 which the engineer identified was during Galway Race Week 2023. The photograph appears to show at least seven vehicles displayed on Strip C at that time, all of which are clearly identified as Peugeot vehicles with that name emblazoned on their sides.  There is also a drone photograph at p. 15 of the same Appendix which shows at least three vehicles parked on Strip B on 11^th August, 2023 but there are no vehicles displayed on Strip C at that time.

25.         Much of Mr. McHugh's affidavit is directed towards Strip A.  For that reason I do not believe that it is necessary to review it in any detail.  However, a number of points should be noted in that context. First, Mr. McHugh suggested that it was not until early 2010 that appellant began to use Strip A for the purpose of the parking of cars and he exhibited letters of complaint from Galway City Council dating from that time in which the City Council complained that the appellant had gone outside the development for which planning permission had been granted and had installed a hard surface area on land outside the development site on which it was parking motor vehicles. This would appear to have been a reference to Strip A. There was no complaint made in the Council's correspondence about the parking of vehicles on the grassed areas. Nor was the parking of cars on the grassed areas addressed in any of the replying correspondence from Tobin Consulting Engineers ("Tobin") who were acting for the appellant at that time. Mr. McHugh also exhibited a letter dated 20^th April 2010 from Tobin to the Council which undermined what had been said by Mr. Kenny in so far as it said that: "All display vehicles are contained within the ... site boundary". The letter also said that: "The stoned area to the front of our client's site is part of the overall business park ... and not within our client's ownership."

26.         In his affidavit, Mr. McHugh addressed Strips B and C in the following terms at paras. 8 and 9 of his affidavit: -

"8.       Paragraph 10 of Mr. Kennys affidavit boldly states, that the Defendant occupied and used the lands contained in Folio's 60598F and 25809 since 2003 onwards.  I say that it has been in relatively recent times that the Defendant resorted to trespassing and placing motor vehicles on these lands in ('Folios GY60598F and GY25809) for sale which was a major factor in prompting the revival of the within proceedings.

9.         I further state that the Defendant did in or about 2015 make application under Section 49 of the Land Act 1965 seeking an order granting Adverse possession to it over a portion of the Plaintiff's land which was confined to folio GY38141F.  In this regard I beg to refer to a copy letter from Martin J. Kearns & Company Solicitors dated the 21^st day of February 2017 then and now acting for the Defendant addressed to Mathesons Solicitors in Dublin who acted on behalf of the Charge Holders thereover namely ...  advising that the section 49 application is on hold." (emphasis added).

27.         Thus, two points were made by Mr. McHugh in relation to Strips B and C.  First, he contended that the appellant's use of the lands had only occurred "in relatively recent times"(whatever that means).  The second point he made was that the appellant had never made a claim under s. 49 of the Registration of Title Act 1964 (which he incorrectly refers to as the Land Act 1965) in respect of Strips B and C on the basis that the appellant had acquired title to those strips by adverse possession.  The sole claim was made in respect of Strip A. Under s. 49 of the 1964 Act, a person who claims title to land on the basis of adverse possession may apply to the Property Registration Authority ("the PRA") to be registered as owner of that land.

28.         In addition to these two points, the respondent also relied upon the fact that the complaints of Galway City Council had been limited to the use made by the appellant of Strip A and that Tobin had assured the Council in April 2010 that all display vehicles were contained within the site boundary of the appellant's premises.

29.         As noted above, Mr. McHugh did not address the averment made in Mr. Kenny's affidavit that the appellant was unaware whether the respondent had proceeded with the proposed sale. As discussed below, a contract was in fact executed within four days after the swearing of Mr. McHugh's affidavit.

30.         In turn, Mr. Kenny swore a further affidavit on behalf of the appellant on 31^st October, 2023.  Much of that affidavit is concerned with Strip A. In that context, he addressed the correspondence from Galway City Council and said, in para. 9 of his affidavit, that the Council had taken enforcement proceedings against the Appellant in the District Court at the hearing of which he gave evidence that the parking of vehicles had been ongoing on a consistent basis since 2003 and he explained that:

"the prosecution was dismissed on the grounds, inter alia, that the planning authority was out of time in bringing its prosecution. The enforcement notices and associated documents were withdrawn thereafter by Galway City Council and I beg to refer to a copy of Galway City Council's Manager's Order number 61728 specifying the notices and so forth that were withdrawn following the dismissal of the prosecution ..."

31.         In paras. 12 and 13 of his affidavit, Mr. Kenny turned to what was said by Mr. McHugh in paras. 8 and 9 of the affidavit sworn on 5^th October, 2023 in relation to Strips B and C.  In response to para. 8, Mr. Kenny reiterated his previous evidence that the appellant had "occupied" Strips B and C since 2003.  He also contended that Mr. McHugh had no personal knowledge of the appellant's "occupation" of the Strips prior to 2018 and he rejected the "bald assertion" that it was only in "recent times"  that the appellant sought to do this.  He exhibited two aerial photographs of the site that were taken in October 2003 which he contended demonstrated that the appellant had parked cars in the disputed areas at that time and he maintained that the appellant had continued to do so uninterrupted since that time.  At the time of the hearing before the High Court, the aerial photographs produced to the court were almost illegible.  More legible copies of these photographs were provided to the Court for the purposes of the appeal.  These photographs were taken at a time when the appellant's showroom had yet to be constructed.  There was a temporary structure on the site and there were a number of cars parked around the perimeter of the lands demised under the lease.  There were also a large number of cars parked between the demised lands and the Tuam road.  These were clearly on Strip A.  It is difficult to identify evidence of car parking on the adjoining Strip B. Only a small part of Strip B appears in the bottom right hand foreground of that photograph namely its northwestern tip immediately adjoining Strip A.  Nonetheless, there are eight objects which can be seen along the perimeter of the estate road on Strip B in that photograph which could potentially be motor vehicles.  It is very difficult to be definitive about this because the photograph is quite blurred.  In those circumstances, the photograph is of limited utility and it is understandable that the High Court judge, in para. 47 of his judgment, observed that "there is nothing that I can interpret from those photographs which support the occupation of the strips of ground in October of 2003". 

32.         In response to paragraph 9 of Mr. McHugh's second affidavit, Mr. Kenny said that the s. 49 application in respect of Strip A was abandoned in circumstances where the Property Registration Authority had indicated in a letter of 11^th August, 2020 (which was exhibited) that there is a legal presumption that "the encroached plot is annexed to the adjoining leased lands and on termination of the lease the plot must be regarded as having accrued the landlord's reversion together with the demised premises".  However, Mr. Kenny did not address the point made by Mr. McHugh that the application under s. 49 of the Registration of Title Act, 1964 was made solely in respect of Strip A and did not extend to Strips B or C.

33.         A number of affidavits were sworn on behalf of the respondent in response to Mr. Kenny's second affidavit.  Two of them are relevant for present purposes.  The first is the third affidavit of Mr. McHugh sworn on 23^rd November, 2023.  Much of that affidavit is concerned with Strip A.  In para. 9 of his affidavit, he responded to what had been said by Mr. Kenny in para. 12 of the latter's affidavit.  He maintained that the appellant had been allowed on a temporary basis to park motor vehicles on the lands in Folio 38141F but he contended that the appellant had "trespassed beyond the area of the agreement for the structures and parking of vehicles".  That would suggest that, in fact, the appellant had parked vehicles on lands other than Folio 38141F (i.e. other than Strip A). 

34.         The second affidavit which is relevant is that of Mr. Michael Pender which was also sworn on 23^rd November, 2023.  It will be recalled that Mr. Pender was the author of the letter of complaint of 18^th May, 2004 about the parking of motor vehicles on green areas along the entrance road into the business park.  In his affidavit, Mr. Pender confirmed that he had been a director of (among others) Kenny Business Parks Ltd. from some time in the early 1990's until 15^th May, 2015 when the group of companies of which Kenny Business Parks Ltd. formed part were placed under the control of the National Asset Management Agency.  He also explained that the respondent became registered as owner of the three folios in issue on 15^th October, 2018 and that his wife was effectively a quarter owner of the respondent company. 

35.         In paragraph 8 of his affidavit, Mr. Pender said that, prior to the appellant acquiring the lease, Mr. Kenny had requested permission from Kenny Business Parks Ltd. to use part of its property to construct a temporary workshop and car parking for the sale and services of motor vehicles during the period when the car showroom was under construction.  Mr. Pender issued a letter of consent dated 19^th February, 2003 (which was four months prior to the grant of the lease on 12^th June, 2003) in which he consented to the appellant applying for planning permission to construct a temporary workshop and car park for use in the sales and servicing of motor vehicles "on our lands, at City North Business Park...".  He confirmed in para. 9 of his affidavit that a temporary planning permission was granted by Galway City Council for that purpose on 21^st May, 2003.  He also contended in para. 12 of his affidavit that the use by the appellant of Strip A during the currency of the planning permission (which endured for a period of 12 months) was not adverse.  However, in para. 13 he confirmed that the appellant continued to occupy Strip A after the expiration of the planning permission.  Although he does not say that the appellant ever abandoned the use of Strip A, he then said in very broad brush terms in para. 14 of his affidavit as follows: -

"I say that the Defendant did in the earlier part of 2023 having desisted from trespass on the lands of the Plaintiff comprised in Folio GY38141F did recommence trespass thereon and furthermore at that stage commenced further trespass by placing vehicles for sale on the Defendants lands comprised in Folios GY60598F and GY25809"

36.         That completed the exchange of affidavits.  The application next came before the judge in charge of the High Court Chancery List on 29^th November, 2023 when it was placed in the list to fix dates two days later.  At the list to fix dates on 1^st December, 2023, the application was assigned a hearing date of 19^th March, 2024.  In accordance with the usual practice of the High Court, the date for hearing was fixed on the basis that written submissions would be exchanged between the parties.  However, notwithstanding that this was an application for an interlocutory injunction and notwithstanding that the Court had assigned a hearing date of 19^th March, 2024 to the matter, the written submissions of the plaintiff were not delivered and it therefore became necessary for the parties to mention the matter to the High Court on 8^th March, 2024.  In the order made by the High Court on that day, it is recited that the plaintiff has not delivered its written legal submissions and the plaintiff was directed to deliver its written submissions not later than 13^th March, 2024.  The hearing date of 19^th March was vacated and the matter was put back to the next Chancery list to fix dates on Friday 15^th March, 2024.  This Court has not been informed as to why the written submissions were not delivered on time to allow the hearing to proceed on 19^th March as fixed by the High Court in December 2023.  There was obviously ample time between 1^st December 2023 and February 2024 to prepare the submissions. In my view, it was entirely inappropriate and unsatisfactory that, in an application for an interlocutory injunction, the party seeking such an injunction should be guilty of such delay in delivery of its written submissions. Such submissions form a key element of an application of this kind. They are designed to assist not only the party against whom the injunction is sought but also the High Court judge in preparing for the hearing and in conducting that hearing in an orderly and informed way.  In para. 13(c) above, I have already highlighted that an application for an interlocutory injunction is only justifiable in circumstances where there is an urgent need for the Court to intervene to regulate the conduct of the parties in advance of the trial.  It is incomprehensible that a party seeking urgent relief of this kind should itself delay in taking a crucial step in ensuring that its own application is ready for hearing.  The position of other litigants also has to be borne in mind. The resources of the High Court are limited and there is frequently significant competition for hearing dates. If the Court had known in December 2023 that the respondent was going to proceed in such a leisurely and unsatisfactory way, I am quite sure that it would have been in a position to allocate the hearing date on 19^th March 2023 to some other litigant.  In considering issues that arise in the conduct of litigation, it was emphasised by Clarke J. (as he then was) in Moorview Developments Ltd v First Active plc [2009] 2 IR 788, at p. 795, that the Court should not do so purely by reference to the interests of the parties to an individual case but should also keep in mind the potential consequences for other litigants.

The High Court was not told of significant events which occurred in advance of the hearing of the application for an interlocutory injunction

37.         As a consequence of the respondent's delay in delivering its written submissions, the hearing of the application for the interlocutory injunction did not take place until 27^th June, 2024 (more than a year after the application was first filed).  The hearing proceeded on the basis of the affidavits described above.  However, there were two pieces of evidence which were not placed before the Court and which were directly relevant to the impression created by the affidavit sworn by Mr. McHugh in June 2023 grounding the application for the interlocutory injunction.  It will be recalled that, in his affidavit, Mr. McHugh had contended that the actions of the appellant were calculated to interfere with the sale of the lands and that the respondent was concerned that, in the event of a successful agreement for sale, the sale might be aborted or the closing of the sale indefinitely delayed.  When the hearing commenced on 27^th June, 2024 that evidence was no longer current or correct.  The following events had occurred in the intervening period between the date of swearing of that affidavit and the date of the hearing:-

(a)               In the first place, a contract had been executed on 9^th October, 2023 between the respondent and Sheils for the grant of a 999 year lease.  The particulars of the property on p. 3 of the contract describe the subject property as part of Folio GY38141F and GY107222F comprising 1.3372 hectares together with a further part of Folio GY38141F and GY25809 shaded pink on a map annexed to the contract. The particulars therefore extended to two of the folios the subject of these proceedings. No reference was made in the particulars to Folio GY60598F. However, by Special Condition 7.2 of that contract, Sheils was put on notice of these proceedings which Special Condition 13 noted affected part of the lands comprised in Folios GY38141F, GY60598F and GY25809.  The special condition also stated that the parts of the Folios affected by the proceedings are "common areas only in the estate".  Having regard to the terms of these special conditions, there was no longer any basis for the concern expressed by Mr. McHugh in his affidavit of June 2023 to the effect that, in the event of a successful agreement for sale, the sale might either be aborted or delayed indefinitely. Sheils had clearly entered into a contract in the knowledge of the claim made by the appellant and the contract was not conditional on the rejection of that claim by the Court.

(b)               The second document that was executed well in advance of the hearing was the 999 year lease in favour of Sheils dated 20^th December, 2023.  Although the particulars of the property on p. 3 of the contract did not suggest that any part of Folio 60598F was to form part of the demise, it is clear from Part B of the first schedule to the lease that, in fact, a part of Folio 60598F forms part of the demised premises under the lease. Curiously, the description of the demised premises makes no reference to Folio 25809 which had been included in the particulars of the property given in the contract. It is nonetheless clear that the demised premises includes part of the grassed area in issue in the proceedings. Thus, not only was there a contract in place in relation to the disposal of part of the lands in issue but there was now a completed transaction.  Crucially, there was no longer a basis for any continuing concern on the part of the respondent that a sale could be lost in the event that an injunction was not granted pending trial.

38.         Notwithstanding the execution of the contract and the subsequent execution of the lease, the respondent did not seek to correct the impression created by Mr. McHugh in his grounding affidavit delivered a year previously.  The most that occurred was that counsel for the respondent was instructed to inform the High Court judge that a contract had been executed.  However, no details of the contract were given.  The contract itself was not provided and the Court was not told that the matter had gone beyond the contract and there was now a concluded lease in place.  Thus, the Court was presented with a misleading impression that, to paraphrase Mr. McHugh in para. 7 of his affidavit, the actions of the appellant, could, in the event of a successful agreement, either abort a sale or indefinitely delay the closing of the sale.  That averment was no longer true.  Yet, the respondent persisted with the application on the basis of this evidence and conveyed a misleading impression to the High Court.  While the duty of full and frank disclosure is usually most relevant in the context of an application for an interim injunction (made on an ex parte basis), it is a basic requirement that a party seeking equitable relief from the Court should come to court with "clean hands".  Quite apart from equitable principles, it is a basic requirement in every case that a party should not mislead the Court.  I have to say that I find it quite shocking that the respondent considered it appropriate to proceed on the basis on which it did without providing full disclosure of the true position as it stood following the execution of the lease in December 2023.  Unsurprisingly, the concern expressed in relation to the potential loss of a sale was at the heart of the High Court judge's conclusions in relation to the adequacy of damages.  In para. 49 of his judgment, he said that "damages could never be an adequate remedy if the sale were to fall through".

39.         In my view, this manifest failure on the part of the respondent to put the true position before the High Court would, of itself,  justify refusal of the application for an interlocutory injunction.  Although an affidavit was sworn by the respondent's solicitor in response to an application by the appellant to adduce further evidence in this Court, no explanation whatever has been provided by the respondent for the failure to put these documents before the High Court and to correct the position set out in Mr. McHugh's first affidavit.  In this context, I should explain that, on the application of the appellant, Costello P. in the course of her case management of this appeal, made an order permitting the appellant to file additional evidence for the purposes of the appeal in relation to the disposal to Sheils. The appellant's solicitor, Mr. Shane MacSweeney swore an affidavit on 26^th November 2024 in which he described the history of the proceedings in some detail and identified seven occasions when the matter was before the Court after the date of execution of the contract with Sheils. In the final paragraph, Mr. MacSweeney stated that the respondent "elected not to place any evidence before the High Court in relation to the 999-year lease that it had entered into with Shiels on 9^th October 2023 (sic) or to inform the court on any of the dates that the matter was listed ...". The respondent's solicitor swore an affidavit in response on 18^th December 2024 in which he exhibited the contract with Sheils of 9^th October 2023 and the Lease of 20^th December 2023 but he chose to say nothing at all to explain the respondent's failure to place this material in evidence before the High Court in advance of either the original hearing date of 19^th March 2024 or the subsequent hearing date in June 2024.

40.         In the absence of any explanation that might explain or excuse the failure to exhibit these documents, I am of the view that this is an occasion where it would be entirely appropriate to consider dismissing the application for the injunction on this ground.  The jurisdiction to do so is well settled.  For example, in Curust Financial Services Ltd. v Loewe-Lack-Werk [1994] 1 I.R. 450 at p. 468, Finlay C.J. said: -

"I accept that, the granting of an injunction being an equitable remedy, the Court has a discretion, where it is satisfied that a person has come to the Court, as it is so frequently expressed, otherwise than 'with clean hands' by that fact alone to refuse an equitable relief of injunction. It seems to me, however, that this phrase must of necessity involve an element of turpitude and cannot necessarily be equated with a mere breach of contract."

41.         In the absence of anything to explain why it acted in this way, I am of the view that the behaviour of the respondent in failing to fully update the Court in relation to the crucial developments which had taken place prior to the hearing, clearly involved an element of turpitude.  The failure to place the evidence before the Court as to the execution of the contract and the lease meant that the High Court was misled as to the true position and was given the impression that the potential sale canvassed in Mr. McHugh's first affidavit was still in jeopardy. The true position was that the transaction had, in fact, been completed and this was plainly known to the respondent (but unknown to the appellant or the High Court) since December 2023. In the intervening period, the matter had been before the High Court on 8^th March 2024 (when the application was made to vacate the first hearing date), 15^th March 2024 (when the second hearing date was fixed) and on 20^th June 2024 when the application appeared in the call-over of cases listed for hearing in the following week. Most importantly of all, the application proceeded without putting the true position before the Court. It is incomprehensible and, on the evidence currently before this Court, inexcusable that the respondent acted in this way.

42.         Notwithstanding the circumstances which I have outlined above, counsel for the respondent did not accept that the High Court had been misled. He submitted that it was clear from a subsequent ruling of the High Court judge on 9^th October 2024 that the judge was not misled. In this context, I should explain that, following the delivery of judgment by the High Court judge in July 2024, the solicitors for the appellant wrote to the solicitors for the respondent seeking information in relation to the sale.  In response, the solicitors for the respondent provided a copy of the lease which was granted to Sheils.  At that point, it was noted by the solicitors for the appellant that the map suggested that part of Strip B was included in the lands demised by that lease.  The solicitors for the appellant contended in those circumstances that the respondent could not seek an injunction in respect of lands which it does not own.  An application was subsequently made to the High Court judge on 9^th October, 2024 seeking leave to bring a motion to put this new evidence before the Court.  Reliance was placed on the decision of Clarke J. in Re. McInerney Homes Ltd. [2011] IEHC 25 which identifies that, in certain very limited circumstances, it is possible to reopen an application after judgment has been given but before a final order has been made.  This was refused by the judge who said in an ex tempore ruling: -

"... I do recall that it was outlined to the court that the property had been sold, who that party was, was not identified.  The fact that it was likely to be a competitor I think was identified, because I think I may have referred to that in my judgment, but I was certainly aware of it.

The reality is that these proceedings relate to a trespass, the actions of the defendant.  I find that there is a serious issue to be tried, that there was a trespass, and I have rejected, at this preliminary stage of an interlocutory injunction, I have rejected the arguments put forward by the defendants.  Naturally, the matter can go forward for a full hearing, at which point the identity of the vendor, or the purchaser will be well-known and, no doubt, will be part of the case.  It seems to me in all the circumstances, that there is no need to bring in that third party as a party to these proceedings.  I think to do so would be to prolong the litigation, which in my view, is straightforward and definitively at an interlocutory stage, definitively against the defendant and, therefore, it seems to me that the most appropriate thing to do would be to make a final order today.  Therefore, Mr. Keyes, sadly, I am going to refuse your application to bring a motion to revisit the judgment."

43.         Although the High Court judge said in that ruling that he had been told that the property had been sold, the true position is that the respondent never went that far.  In the course of the hearing of the appeal, both sides were agreed that counsel for the respondent told the High Court judge at the hearing in June 2024 that he had been instructed that a contract had been executed.  This is consistent with the evidence subsequently filed in the course of the appeal (pursuant to the order made by the President).  In the course of an affidavit sworn by Mr. MacSweeney, the solicitor acting for the appellant, on 26^th November, 2024, he stated that: -

"10.     I believe that during the opening of the application, Senior Counsel on behalf of Strategic Land informed the court that a portion of the lands over which the injunction was being sought was subject to a contract for sale to a third party.

11.       Nothing in relation to the sale had been contained in any of the affidavits filed on behalf of Strategic Land.  The matter proceeded and the issue regarding the sale was treated on a de bene esse basis."

44.         No issue was taken with those averments when the solicitor for the respondent swore his replying affidavit on 18^th December, 2024 in which he drew attention to the special conditions of the contract (discussed above) which permit the respondent to pursue the claim made in these proceedings notwithstanding the transaction with Sheils. I therefore believe that the High Court judge was mistaken in his recollection of what had transpired at the hearing some four months previously. In the circumstances, I do not believe that the ruling of October 2024 can be said to demonstrate that the High Court was not misled. It is true that the ruling suggests that the High Court judge believed that the evidence showed that the appellant was a trespasser on Strips B and C and that his recollection at that time was that this was the reason why the interlocutory injunction was granted. However, it is clear from para. 49 of his judgment of July 2024 that the possibility that the sale might be aborted was at the forefront of his mind in relation to the adequacy of damages and that it was a very important factor in deciding that the balance of justice lay in favour of granting the injunction.

The manner in which the matter was argued before the High Court

45.         Even if one were to discount the way in which the High Court was misled, the fact that the transaction with Sheils had completed is also highly relevant to the balance of justice.  As noted earlier, Mr. McHugh's evidence to the effect that the sale might be in jeopardy was the only evidence given on behalf of the respondent in relation to the damage to which the respondent would be exposed in the event that an injunction were not granted pending the trial.  This is an issue that I address in more detail below.  Before I turn to it, it is first necessary to consider the approach taken by the parties before the High Court and the approach taken by the High Court itself. 

46.         As recorded in para. 29 of the judgment of the High Court judge, the parties had agreed prior to the commencement of the hearing that the application was to be addressed as though a mandatory injunction was sought.  This meant that, in accordance with the principles established in Maha Lingam v HSE [2005] IESC 89 the respondent had to go further than showing that it had a fair issue to be tried in accordance with the ordinary principles discussed in Merck Sharpe & Dohme v Clonmel Healthcare [2020] 2 IR 1 and demonstrate that it had a strong case to make.  That was the approach which the High Court judge took.  It is important to highlight, in this context, that this is not the approach that would ordinarily be taken in a case where a plaintiff seeks an interlocutory order restraining acts which are alleged to constitute trespass.  Such applications normally proceed on the basis that the relief claimed is prohibitory in nature. The reason why the parties appear to have adopted a different course in this case is that there was some element of recognition on both sides that the activities of the appellant had been ongoing for some time and that this meant, in substance, that the respondent was seeking a mandatory order.  There would appear to have been some basis to take that view, at least in relation to Strip A where the evidence was that the Strip had been tarmacadamed by the appellant many years ago.  Insofar as that strip is concerned, the order sought might be said to be similar to an order requiring a party to take down a structure which had been erected.

47.         In the written submissions delivered on behalf of the parties prior to the High Court hearing, the respondent referred to the Maha Lingam test and to two other authorities dealing with the same test.  In addition, the respondent relied on a decision (which was arrived at following a plenary trial) namely Dunne v Iarnród Eireann [2016] 3 I.R. 167 which addresses the principles applicable to the acquisition of title by way of adverse possession.  The case was made in the submissions that the appellant had not been in occupation of the land for a period of 12 years (being the relevant period required to establish adverse possession) prior to the commencement of the proceedings on 27^th October, 2015.  While that date may have some relevance for the claim in relation to Strip A, it is, at least open to question, whether the date of commencement of the proceedings in 2015 could be said to apply in respect of the new claim made by the respondent for the first time in 2023 in respect of Strips B and C.  It was also submitted that the appellants did not have the necessary animus possidendi to establish such a claim and that any occupation of the land was more consistent with an easement than a claim for adverse possession.  In that context, reference was made to the principle (confirmed by Laffoy J. in Dunne v Iarnród Eireann) that, where the extent of use of lands in respect of which an adverse possession claim is made is equally consistent with establishing an easement as with full ownership, then it is appropriate to infer the lesser rather than the greater entitlement.  Curiously, the respondent's written submissions did not address the balance of justice at all or any element of the test in Merck Sharpe & Dohme v Clonmel Healthcare.  Those principles were, however, addressed in the written submissions delivered on behalf of the appellant in which the issue of delay was raised as part of the analysis as to where the balance of justice lay. The appellant also referred the High Court judge to the decision of Clarke J. (as he then was) in Allied Irish Banks plc v Diamond [2012] 3 I.R. 549

48.         There is no indication that the High Court judge was referred to any relevant authorities dealing with the application for an interlocutory injunction in the context of a trespass claim.  A relevant authority that might have been of assistance to the High Court is the decision of Keane J. (as he then was) in Keating & Co. Ltd. v Jervis Shopping Centre Ltd. [1997] 1 I.R. 512.  In that case, the owner of a public bar adjacent to the site of the Jervis Shopping Centre in Dublin sought an interlocutory injunction restraining the developers of the Centre from trespassing onto its property by the operation of a tower crane on the development site to the extent that the jib of the crane moved into the airspace above the public bar.  At p. 518, Keane J. explained the approach to be taken on such an application  as follows: -

"It is clear that a landowner, whose title is not in issue, is prima facie entitled to an injunction to restrain a trespass and that this is also the case where the claim is for an interlocutory injunction only.  However, that principle is subject to the following qualification explained by Balcombe L.J. in the English Court of Appeal in Patel v W.H. Smith (Eziot) Ltd. [1987] W.L.R. 853 at p. 859: -

'However, the defendant may put in evidence to seek to establish that he has a right to do what would otherwise be a trespass. Then the court must consider the application of the principles set out in American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 in relation to the grant or refusal of that injunction.'

In the present case, it is perfectly clear that the developer and the builder are asserting a right, by virtue of the agreements to which I have referred, to move the jib of the crane over the licenced premises, at least to the extent that is required for the implementation of the agreement for the erection of the party walls. I am satisfied that there is a serious question to be tried between the parties as to whether this is so or not and it follows that Keating would not be entitled to an interlocutory injunction unless it could satisfy the court that damages would not be an adequate remedy.  In the present case, Keating has not established that damages would be an inadequate remedy.  If it succeeds in establishing its contention that its trade has suffered as a result of the building operations in its vicinity, including the movement of the crane over its premises, the court at the trial of the action will be in a position to award whatever is a fair and reasonable sum in relation to that loss and it is clear that the developer and builder are a sufficient mark for such damages."

49.         Thus, in many cases where an interlocutory injunction is sought to restrain a trespass, and where it is clear that the defendant has no arguable defence to the claim, it may be appropriate (depending upon the individual facts and circumstances of the case) for the Court to grant an interlocutory injunction to restrain the trespass without considering the balance of justice. I do not believe that this approach is affected by the subsequent decision of the Supreme Court in Merck Sharp & Dohme v. Clonmel Healthcare (other than, as clarified by the Supreme Court in that case, the adequacy of damages is now to be considered as a facet of the balance of justice). At p. 21 of the report in that case, O'Donnell J. (as he then was) acknowledged that there are some categories of case where the usual principles governing applications for interlocutory injunctions would not apply. In cases where a plaintiff establishes a right to possession (at least to the serious or fair question standard), damage to the property owner is presumed and, if the defendant has failed to establish any arguable basis to remain on the property, it would be rare for the court not to grant an interlocutory injunction.  The rationale for this was explained by Clarke J. in Allied Irish Banks plc v Diamond at pp. 589 - 590 where he said: -

"The courts have always been anxious to guard property rights in the context of interlocutory injunctions: see for example Metro Inter. v. Independent News [2005] IEHC 309, [2006] 1 ILRM 414.  The reason for that is clear.  Even though there may be a sense in which it may be possible to measure the value of property lost, declining to enforce property rights on the basis that the party who has lost its property can be compensated in damages would amount to a form of implicit compulsory acquisition. If someone could take over my house and avoid an injunction on the basis that my house can readily be valued and he is in a position to pay compensation to that value (even together with any consequential losses), then it would follow that that person would be entitled, in substance, to compulsory acquire my house.  The mere fact that it may, therefore, be possible to put a value on property rights list does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to its property rights instead of their value." 

The approach taken by the High Court judge

50.         In his judgment, the High Court judge, having set out the submissions of the parties and having referred extensively to the principles which apply to the grant of an interlocutory injunction as explained by Clarke J. in Allied Irish Banks v Diamond, observed, in para. 39 of his judgment, that injunctions "are a feature of land disputes and in this regard, it seems to me that the case of Dunne v Iarnród Eireann... is particularly pertinent".  While Dunne v Iarnród Eireann was not a case dealing with interlocutory injunctions, it seems likely that what the judge had in mind was that the decision provides helpful guidance in relation to adverse possession claims.  Having identified these authorities, the judge turned, in para. 40 and following paragraphs of his judgment to consider the decision that should be made.  He first considered the position in relation to Strip A.  He drew attention to the photographs from October 2003 from which he said it was clear that the appellant had been parking vehicles on Strip A since that time.  He also referred to the fact that Strip A had been tarmacadamed and stoned and that the appellant had installed lighting standards on the Strip.  He said that it essentially formed part of the forecourt of the showroom built by the appellant.  In para. 42 of his judgment, he said that the evidence suggested that the appellant had occupied Strip A continuously since before it constructed its current showroom for a period of more than 20 years.  In those circumstances he expressed the view in para. 43 of his judgment that delay was a significant feature and he said that it would be inequitable to make any order on an interlocutory basis in relation to the occupation or use of Strip A by the appellant.  In paragraph 45 he held that the balance of justice clearly rested with the defendant. He said that it would be very hard to calculate the damage to the appellant if an injunction were granted and it turned out at full hearing that it should not have been granted.  In those circumstances, he refused the application for an interlocutory injunction in respect of Strip A.  The respondent has not cross-appealed in respect of that decision.

51.         The High Court judge took a different view in relation to the evidence in respect of Strip B and Strip C.  In para. 47 of his judgment, the High Court judge referred to the blurry photographs from October 2003 which he appeared to regard as crucial to the appellant's case.  The judge was understandably unable to interpret the October 2003 photographs in the way suggested by the appellant.  He nonetheless accepted that the Google Map Earth View photographs from 2017, 2019 and 2021 showed what he called the "odd car parked along the grass verge" and he also referred to the drone photograph taken in August 2023 which showed what he described as a "number of vehicles stretched out along the north west of the Tuam Road".  At para. 48, he observed that the contrast in the evidence in respect of Strip A, on the one hand, and strips B and C, on the other, was "stark".  In contrast to Strip A which is tarmacadamed and lit and which the judge suggested had clearly been in use since 2003, Strips B and C comprise green grass, they are unlit and have no services on them that can be identified in any photograph.  He also indicated that he was struck by the fact that no s. 45 application was ever made by the appellant in relation to either Strip B or Strip C.  At para. 49, he reached the following conclusion: -

"There is no evidence of factual possession for the requisite period of time which is single and conclusive. Therefore, applying the same principles as I set out above in relation to Strip A, it seems to me that the balance of convenience clearly rests with the Plaintiff in relation to Strip B and Strip C. I think the least amount of injustice will arise if the orders are made. If the opposite were to be the case, it seems to me that damages could never be an adequate remedy if the sale were to fall through. The Plaintiff says that the delay is not inequitable in relation to Strips B & C. If anything, the Defendant has gained from carrying out its business over time by utilising them. I agree. Further, it seems to me that the correspondence with Tobins, had nothing to do with Strips B & C. I think it is material that the Local Authority did not issue any enforcement proceedings in relation to Strips B & C."

52.         On that basis, he concluded that the respondent had made out a strong case for the order it seeks in relation to Strips B and C and he granted the respondent an interlocutory injunction restraining the appellant from trespassing on the two Folios relevant to Strips B and C.

Discussion and analysis

53.         It appears to be clear from para. 49 of the judgment that, in granting the interlocutory injunction in respect of Strips B and C, the High Court judge considered the matter solely by reference to the claim made by the appellant in its defence and counterclaim that it had acquired title to Strips B and C by means of adverse possession.  The reference to "no evidence of factual possession" strongly suggests that this is so.  In addition, as I have already highlighted, the judge was clearly concerned that, in the absence of the injunction, the sale could fall through.  While he had been told that a contract had been executed, he did not know the terms of that contract and therefore did not know that the contract was carefully conditioned to ensure that the sale could proceed notwithstanding these proceedings.  As described earlier, the special conditions in the contract were such that the purchaser would not have been in a position to refuse to close the sale on the basis of the claims made by the appellant in these proceedings.  More importantly, the judge was unaware of the fact that the sale (or rather the grant of the lease) had already concluded. 

54.         In addition, I am of the view that the judge was mistaken when he suggested in para. 47 of his judgment that the only supporting evidence available to substantiate the appellant's case of long use of the grassed areas was the blurry photograph from October 2003.  In this context, it should be noted that, earlier, the judge had observed, in para. 14 of his judgment, that Mr. Pender's letter of 18^th May, 2004 was concerned with the use made by the appellant of Strip A.  In my view, that is not correct.  It is clear from para. 12 of Mr. Kenny's first affidavit that he was relying on this letter as evidence in support of his contention not only that the lands comprised in Strip A were being used by the appellant at that time but also the lands comprised in Strips B and C. Mr. Kenny expressly said, with reference to that correspondence, that the then lessor had taken issue regarding the appellant's use of "the lands which the Plaintiff now seeks to restrain the Defendant from using".  Moreover, as I have already explained in para. 19 above, the letter itself, by its terms, plainly refers to the parking of cars on the green areas along the entrance road into the development.  That can only have occurred on Strip B or possibly Strip C.  The complaint relates to May 2004.  While Mr. Pender, in his affidavit sworn in November 2023, he suggested that the use on Strips B and C had only commenced in "the earlier part of 2023", Mr. Pender failed to explain how, notwithstanding his cessation of involvement in the development in May 2015, he was able to give that evidence.  While hearsay evidence is permissible on an interlocutory application, O. 40, r. 4 requires that the grounds of the deponent's belief is set out in the affidavit.  In Mr. Pender's affidavit, there is nothing more than an assertion that the use commenced in the early part of 2023.  There is no detail given and no explanation provided as to how Mr. Pender is in a position to give that evidence.

55.         Mr. Pender's omission to address, in any meaningful way, the complaint made in his letter of 18^th May 2004 is particularly striking. In para. 11, he merely refers to the fact that, in this letter and the previous correspondence in April 2003, he had requested Mr. Kenny to desist from trespass. However, he said nothing in his affidavit as to what happened (if anything) after the letters were sent. Critically, he did not say that the parking of cars on the grassed areas ceased at that time and he does not address or contradict the averment made in para. 13 of Mr. Kenny's first affidavit that, notwithstanding the contents of that correspondence, the appellant continued its use of the lands and that "the Plaintiff's predecessor" (i.e. Kenny Business Parks Ltd. of which Mr. Pender was a director) "failed to take any steps to stop the Defendant from using the lands."

56.         It is true that the evidence in relation to Strips B and C is not of the same order as the evidence in relation to Strip A.  The fact that Strips B and C are not identified in the correspondence from Tobin to Galway City Council and the fact that the City Council did not issue any enforcement proceedings in relation to Strips B and C tend to undermine the case made by the appellant.  However, on an application of this kind, it would be wrong to reach any concluded view in relation to the issues.  The key point is that, contrary the view reached by the High Court judge, there is some supporting material to substantiate the appellant's case. As outlined above, the letter of 18^th May, 2004 from Mr. Pender constitutes contemporaneous evidence of use of the grassed areas for car parking as long ago as 2004.  The fact that Mr. Pender did not contradict Mr. Kenny's averment that the appellant's use continued notwithstanding the May 2004 letter further supports the appellant's case that the use continued after May 2004. There is also evidence from 2017, 2019 and 2021 of such continued use. The evidence therefore goes back more than the 12 years necessary to substantiate a claim based on adverse possession or based on any alleged easement.  In the latter context, it is clear from s. 33 of the Land and Conveyancing Law Reform Act, 2009 ("the 2009 Act") that the relevant user period in respect of the acquisition of an easement is now 12 years in cases where the servient owner is not a State authority.  While that provision was not commenced at the time these proceedings were instituted in 2015, it was subsequently commenced on 1^st December 2021. The claim made in relation to Strips B and C was only asserted for the first time when the application for the injunction was first brought in June 2023 and only became part of these proceedings when the High Court made the order giving leave to deliver the amended statement of claim.  In the circumstances, there is at least an arguable case to make by the appellant that it is entitled to rely on the 12 year period prescribed by the 2009 Act.  In this context, it is clear from the judgment of Keane J. in the Jervis Shopping Centre case that a defendant need only establish a serious question to be tried that it is entitled to do what would otherwise be a trespass.  It does not have to prove its case to any higher standard.  In this context, it should be kept in mind that the terms "serious question to be tried" and "fair issue to be tried" are used interchangeably.  The reference by Keane J. to a "serious issue" was not intended to suggest any higher standard than the normal standard as more recently explained by O'Donnell J. in the Merck Sharpe case.  Similarly, Clarke J. in Allied Irish Banks v Diamond at p. 571 suggested that the relevant standard is arguability.  He said:-

"Where both plaintiff and defendant have established arguable cases where respectively the claim on the defence and where neither could be adequately compensated in damages, the court turns to the balance of convenience."

57.         In reaching his decision (as set out in paragraphs 47 to 49 of his judgment), it also seems to me that the High Court judge did not pay sufficient regard to the fact that, as an alternative to the claim made by the appellant based on adverse possession, the appellant was also making a case based on an easement of parking.  While those cases are inconsistent, one with the other, it is clear from the decision of Keane J. in Phonographic Performance (Ireland) Limited v Cody [1998] 4 I.R. 504 that a party is entitled to plead to wholly inconsistent grounds of defence or counterclaim as the case might be.  While an easement of parking may not yet be recognised in Irish law, there is at least an arguable case to make that such an easement exists. As Bland explains in his text on Easements (3^rd Ed., 2015), at para. 11-15, a majority of the House of Lords in Moncrieff v Jamieson [2007] 1 WLR 2620 were prepared to accept that such an easement could exist.  In that case, Lord Scott went so far as to express the following view at pp. 2635 - 2636: -

"47 It is convenient to start with the question whether a servitudal right to park appurtenant to some identifiable dominant land, i.e. a right in rem and not simply a contractual right, is recognised by law. In my opinion there should be no doubt that it is and, if there is any such doubt, that doubt should be now dispelled. I can see no reason in principle, subject to a few qualifications, why any right of limited use of the land of a neighbour that is of its nature of benefit to the dominant land and its owners from time to time should not be capable of being created as a servitudal right in rem appurtenant to the dominant land: see Gale on Easements, 17th ed (2002), para 1-35."

58.         It is true that Lord Scott at p. 2636, suggested that an essential qualification of this proposition is that the right must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner.  At first sight, that might appear to be a significant obstacle facing any claim to such an easement by the appellant. However, if the appellant proves at trial that it has, in fact, been using the grassed areas on Strips B and C for parking and displaying vehicles without interfering with the functioning of the business park, that may provide an argument that this qualification expressed by Lord Scott is not insurmountable. In any event, it is not only unnecessary but inappropriate to reach any final view in relation to any of these issues at this stage of the proceedings.  These are all matters that will fall to be decided at the trial and all that is necessary at this stage is to identify that there is an argument to be made on the appellant's part that it has acquired some form of interest in or easement over Strips B and C for the purposes of parking and displaying its vehicles.  The covenant in the appellant's lease in respect of the common areas may also constitute an obstacle to the acquisition of the right now claimed but, again, that is a matter for the trial. Moreover, as previously noted this was not invoked by the respondent in the application for the interlocutory injunction and no reference is made to it in the amended statement of claim.  I have already drawn attention to the fact that the lease was not even exhibited by the respondent in the course of the proceedings before the High Court. 

59.         In light of the considerations identified in paras. 53 to 58 above, I am of the opinion that the High Court judge was mistaken in the view that he took that there was essentially no substance to the appellant's case in respect of Strips B and C.  The judge may ultimately be proved to have been right on that issue but it is not a decision which I believe can be reached at this stage of the proceedings.  It is an issue which, in my view, requires full argument and full evidence at trial.  For the reasons previously outlined, I am of the view that the appellant has at least an arguable case to make in relation to the acquisition of an easement over Strips B and C and that is sufficient to address the first element of the test that applies on an application for an interlocutory injunction.  This was not a case where the appellant plainly had no defence to the allegation of trespass on Strips B and C.

60.         In those circumstances, in accordance with the approach suggested in the Jervis Shopping Centre case and, in accordance with the principles laid down by the Supreme Court in Merck Sharp & Dohme v. Clonmel Healthcare, I now turn to consider the judge's view in relation to the balance of justice.  It is clear from para. 49 of his judgment (quoted in para. 51 above) that it was a very important element of the High Court judge's decision that damages would never be an adequate remedy for the respondent if the sale were to fall through. Unknown to the judge, the factual basis for that consideration no longer existed.  While that was the only species of irreparable damage highlighted by the respondent, I accept that, as outlined by Clarke J. in Allied Irish Banks v Diamond, there is almost always an element of irreparable harm in play where the enforcement of property rights are concerned.  However, that works both ways in this case.  If the appellant is correct that it has acquired some interest in or easement over Strips B and C, any interference with that property right would equally give rise to irreparable harm. 

61.         How then is the presumed irreparable harm on both sides to be weighed?  As noted previously, the appellant did not place any evidence before the court as to whether it might be exposed to any additional irreparable harm over and above its claimed right as an owner of an interest in or easement over the lands in question.  Thus, on the state of the evidence now before this Court, both parties are in a similar position such that it might appear, at first sight, that the issue is very finely balanced.  However, it seems to me that there are two interrelated issues which very decisively tilt the balance against the grant of an injunction at an interlocutory stage. The first is the fact that the transaction with Sheils has closed, such that any claim that the respondent may now have in relation to any harm done to it in respect of that transaction sounds in damages only. In that context, we were told at the hearing of the appeal that the existence of the appellant's claims led to a reduction in the price achieved for the transaction. The fact that the transaction has completed means that any urgency that may originally have existed has evaporated.  

62.         That may also account for the second factor that leads me to believe that the balance of justice favours the refusal of the injunction - namely the failure of the respondent to proceed with any urgency in pursuing the application for the injunction.  The respondent demonstrably failed to show any urgency in that context.  Consider the following facts: the first letter of complaint was sent in March 2023.  The letter does not identify when the alleged offending activity on the part of the appellant came to the attention of the respondent or as to how it came to the respondent's attention.  All that is said is that the respondent's solicitors have recently been advised by the respondent that the parking has "recommenced".  A further significant feature of that letter is that the only area of land that is mentioned in the letter is Folio GY38141F (i.e. Strip A).  Notwithstanding that no response was received to that letter, the appellant waited three months before bringing an application seeking an interlocutory injunction.  As outlined above, the grounding affidavit mentions, for the first time, the lands which have since been referred to as Strip B and Strip C.  That affidavit provides no further information as to when the matters complained of came to the attention of the respondent.  I have already drawn attention to the way in which Mr. McHugh simply referred to the acts of trespass recommencing "in recent times".  But what was recent in March 2023 (when the letter of complaint was written) could hardly be said to be recent in June 2023.  Moreover, when Mr. McHugh came to swear his second affidavit in October 2023 he was still contending that it had only been in "relatively recent times" that the appellant had been placing motor vehicles on the lands which I have referred to as Strip B and Strip C.  Not only is that averment contradicted by the photographs from 2017, 2019 and 2022 and the earlier letter from Mr. Pender of 18^th  May 2004, but, what might have been recent in March 2023 or even June 2023 could hardly be said to be recent (even relatively recent) in October 2023. 

63.         The way in which the respondent pursued the application for an interlocutory injunction is also telling.  As I have previously noted, no application was made for an early return date for the motion.  Furthermore, the directions agreed between the parties for the exchange of affidavits showed no sense of urgency.  The information contained in Mr. McHugh's second affidavit sworn on 5^th October, 2023 should properly have been put before the court in its first affidavit in June 2023.  This second affidavit was sworn three weeks after Mr. Kenny's first affidavit sworn on 14^th September, 2023.  That affidavit, in turn, was sworn three months after the grounding affidavit.  While I appreciate that the August holiday period intervened, if the matter was truly urgent, there is no doubt that a shorter time period could have been fixed for the delivery of that affidavit.  In turn, a period of three weeks appears to have been agreed for Mr. Kenny's second affidavit in response to the affidavit sworn by Mr. McHugh on 5^th October, 2023.  And it also appears to have been agreed that the respondent would have a further period of three weeks thereafter in which to deliver its last round of affidavits. 

64.         Crucially, the failure of the respondent to ensure that its submissions were delivered in sufficient time to allow the hearing date on 19^th March, 2024 to proceed completely undermines any suggestion that the respondent required the Court to intervene urgently at an interlocutory stage of the proceedings to restrain the activity in issue.  The manner in which the respondent conducted itself was wholly inconsistent with any need to seek a remedy in advance of the trial.  The reality is that in the period between June 2023 (when the motion was first filed) and June 2024 (when the interlocutory hearing took place) the respondent could have made very significant progress in getting the case ready for a full hearing.  Its failure to take any steps in that period to progress the action speaks volumes. 

65.         Delay on the part of a party seeking an interlocutory injunction is a matter that weighs in the balance of justice.  The observations of Keane J. (as he then was) in Nolan Transport (Oaklands) Limited v Halligan (High Court, Unreported, 22^nd March 1994) remain valid today.  In that case, he said at p. 6: -

"There is one further feature of this case which is of importance.  In all cases of this nature where interlocutory relief is sought the courts expect the parties to move with reasonable expedition where they are seeking interlocutory relief because it is of the essence of such relief that if it turns out that it has been wrongly granted one party has suffered an injustice.  It is therefore a remedy which should not be lightly invoked' and if invoked, it should be invoked rapidly and where a party simply awaits events as they unfold he cannot expect to find the court amenable to the granting of this relief, as it would where a party moves expeditiously to protect his rights."

66.         Although the plaintiff in those proceedings established a fair question to be tried that the picketing undertaken by the defendants was not protected by the Industrial Relations Act, 1990, he refused the injunction sought insofar as peaceful picketing was concerned.  At p. 8 he said: -

"It is sufficient to say that there is a fair question to be tried from the plaintiffs' point of view as to whether there is or is not a trade dispute.  Since there is such a fair question to be tried and since I am satisfied that the secret ballot provisions, if I may generically call them that, do not apply, it would follow that the plaintiffs would be entitled to an injunction restraining the picketing because there is quite clear evidence that it would cause them irreparable damage, provided there are no countervailing considerations to indicate that such an injunction should not be granted.

In the present case this dispute has been in existence for a very considerable time and the court's jurisdiction has only been invoked relatively late.  Accordingly, I am not satisfied that it would be reasonable at this stage to restrain the defendants from picketing. ..."

67.         In my view, very similar considerations arise here.  The sluggish way in which the respondent has pursued the application for the interlocutory injunction is inconsistent with any suggestion that relief is urgently required in advance of the trial.  If the respondent could live with the activities of the appellant in the period between June 2023 and December 2023 (when the first hearing date was fixed) and if it could live with the additional period between March 2024 (when the first hearing date was vacated thanks to its failure to deliver submissions) and the hearing of the application in June 2024, the respondent can surely live with the activities of the appellant in the period between now and the trial.

68.         This is all the more so in circumstances where, even since the hearing in the High Court in June 2024, the respondent has taken no steps to progress the proceedings.  This is notwithstanding the fact that it has had the defence and counterclaim of the respondent since 14^th July, 2023.  No reply and defence to that defence and counterclaim has been delivered.  No steps have been taken to seek discovery of documents and there is no evidence of any other meaningful steps having been taken by the respondent to progress the proceedings other than the service of a request for particulars of the defence and counterclaim on 29^th August 2023.  Again, that lethargic approach on the part of the respondent is wholly inconsistent with any sense that urgent relief is required from the court in advance of the trial of the action. 

69.         The fact that no steps have been taken to progress the proceedings since the High Court judgment in July 2024 is particularly troubling in circumstances where there has been an injunction in place since that time.  It is well-settled that where an interim or interlocutory injunction is in place there is a heavy onus on the party who has obtained that injunction to progress the proceedings to trial with all due expedition.  In addition, even in advance of the grant of an interlocutory injunction, there is also a duty on the party seeking such an order to progress the proceedings with expedition.  The fact that an interlocutory injunction is being sought does not, in any way, prevent steps being taken in parallel to progress the proceedings to trial.  That should be done in any case in which an injunction is sought at an interlocutory stage.  In this context, it is difficult to fathom why the respondent appears to have left it until the hearing of the motion for the injunction to seek the order giving it leave to deliver the amended statement of claim.  In contrast, the appellant took the very realistic approach of immediately serving its defence and counterclaim in July 2023 more than a year before the formal order was made.

70.         In the absence of compelling reasons to the contrary, the practice that should be adopted in all cases in which a party seeks an interlocutory injunction is that, in addition to seeking directions in relation to the early hearing of such an application, the court should be asked to fix directions in relation to the progress of the proceedings to trial.  This should include directions as to the delivery of pleadings, the delivery of any requests for particulars and responses to such requests, the delivery of letters seeking voluntary discovery and any other steps that might be required to be taken in the circumstances of an individual case.  At the same time, unless there is some good reason to give extensive time to the parties for delivery of affidavits in relation to the application for the injunction, the time for delivery of affidavits should be fixed in a way which is commensurate with the urgency of the case.

The appeal from the refusal of the High Court to reopen its decision

71.         In light of the view which I have reached in relation to the interlocutory injunction granted by the High Court, it seems to me that it is unnecessary to deal with the appeal from the refusal of the High Court judge to reopen his decision. The fact is that the additional evidence which was sought to be introduced by the appellant in the High Court has been admitted in this Court and has been taken into account in this judgment. Thus, no useful purpose would be served in addressing this issue.

The order to be made

72.         For the reasons outlined above, I am of the view that the order of the High Court restraining the appellant pending the trial from trespassing on Strips B and C should be set aside and, instead, the application for the interlocutory injunction should be refused.

73.         In so far as costs are concerned, my provisional view is that the appellant should be entitled to its costs of the appeal (including the costs of the application to adduce additional evidence) and of the application in the High Court but that there should be a stay on the order for costs pending the ultimate determination of the proceedings. If either party wishes to contend for a different costs order, it should file and serve a short written submission of not more than 2,000 words within 14 days from the date of delivery of this judgment, after which the opposing party will have a further 14 days in which to file and serve replying submissions of similar length.

 

74.         Since this judgment is delivered electronically, I am authorised by Allen and O'Moore JJ. to state that they agree with it and they agree with the orders proposed above.

Result:     Appeal Allowed