High Court: Article 40.4 application refused for man committed to prison after failing to deliver possession of property

High Court: Article 40.4 application refused for man committed to prison after failing to deliver possession of property

The High Court has refused an Article 40.4 application brought by a man who was committed to prison after he failed to deliver up possession of a property in accordance with a 2019 court order.

The court held that the applicant had been detained in accordance with law and that the more appropriate course of action was to bring an appeal or judicial proceedings.

In so holding, the court rejected the applicant’s submission that the committal order was unlawful because the plaintiffs in the possession proceedings had sought the renewal of the committal order without the leave of the court. Further, the court rejected the submission that the detention was unlawful because the original plaintiffs had not obtained an order of possession.


The applicant had been committed to Mountjoy Prison due to a failure to comply with court orders made in possession proceedings. Summary judgment had previously been obtained in England for approximately £500,000 and in 2015 a special summons was served in Ireland relating to well-charging proceedings.

In June 2018, the High Court made an order for possession in favour of the plaintiff bank, where the applicant was ordered to deliver up vacant possession of the property. In April 2019, the plaintiffs were granted liberty to issue a motion seeking the attachment and committal of the applicant on the basis that he had not complied with the order.

In October 2019, the High Court made an order that the applicant was guilty of contempt of court by disobeying the order for possession. Accordingly, the court made an order committing the applicant to Mountjoy Prison until he purged his contempt. The court gave the plaintiffs liberty to issue an order of committal requiring An Garda Síochána to arrest the applicant and lodge him in Mountjoy.

In December 2019, the plaintiffs obtained an order for committal from the Central Office. However, the order was not executed or renewed within a year. Subsequently, in September 2021, the plaintiffs obtained a further committal order in the same terms as the December 2019 order. The order was executed on 14 November 2021, when the applicant was committed to prison.

The applicant issued Article 40.4 proceedings, arguing that he was being detained unlawfully. First, the applicant submitted that, pursuant to Order 42 RSC, an order for committal could only be valid for one year. As such, it was argued that the plaintiffs were required to seek the leave of the court if they wished to issue another committal order.

In those circumstances, the applicant argued that the Central Office did not have jurisdiction to make the committal order in September 2021. It was said that there was no procedure where a party could allow an order to lapse and simply obtain a second order much later in time.

Further, the applicant placed reliance on the fact that the plaintiffs had not obtained an order of possession (rather than an order for possession) which, it was said, was a fundamental step in the possession process (see Start Mortgages DAC v Rogers [2021] IEHC 691).

In response, the Governor of Mountjoy Prison submitted that the appropriate forum to make the applicant’s submissions was in an appeal or by way of judicial review. It was said that the committal order was good on its face and, as such, the applicant had been detained in accordance with law (State (Royle) v Kelly [1974] IR 259).

Further, the respondent submitted that it was acceptable for a creditor to seek a new order for committal. Counsel relied on Wymes v Tehan [1988] IR 717 and Carlisle Mortgages Ltd v Canty [2013] 3 IR 406 in support of this argument.

Finally, it was submitted that the applicant’s point about the requirement for an order of possession was irrelevant in a context where the High Court had already found the applicant to be guilty of contempt. As such, it was not open to the applicant to re-litigate the point in the Article 40.4 proceedings.

High Court

Giving judgment in the case, Mr Justice Anthony Barr held that the applicant was lawfully detained in Mountjoy. The court held that there was “considerable force” in the argument that the proper avenue to challenge the detention was by appeal or judicial review. The applicant had chosen not to take either of those steps.

Further, the Central Office committal order of September 2021 was good on its face, the court said. The court held: “The applicant has not established that there is any fundamental irregularity, or unfairness in the making” of the orders, either in 2019 or 2021.

While the court commented that the applicant may have an arguable case that the Central Office did not have jurisdiction to issue the second committal order, the court held that there were clear statements in Wymes and Carlisle Mortgages Limited which said that a party was always entitled to issue a fresh execution order. The court also noted the merit in the applicant’s submission that these cases were not relevant because they considered different types of execution orders under the Rules.

However, the court held that “it cannot be said that there was a fundamental lack of jurisdiction to make the order of committal in this case.” As such, there was a lawful basis for the detention of the applicant. The court said that acceding to the applicant’s case would “effectively deprive the plaintiffs in the substantive action of a means of enforcing the order made” in 2019.

The court held that the plaintiffs had no standing to make submissions to the court in the Article 40.4 application and that it was unjust since they would not be heard in a case relating to their property rights. As such, it was preferable to proceed by way of judicial review.

Finally, the court held that it was unfair to ask the respondent to deal with alleged procedural infirmities in the case, where the committal order was regular on its face. Again, judicial review was preferable for this reason.


The court dismissed the Article 40.4 application on the basis that the detention of the applicant was lawful.

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