High Court: Borrower’s ex-husband resists injunction seeking to prevent access to his home

About this case:

• Citation:
  [2026] IEHC 354
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice John Jordan

Delivering judgment for the High Court, Mr Justice John Jordan concluded that “The court is not satisfied that the plaintiff is a mortgagee in possession. There are serious questions surrounding the eviction which remain unanswered. There is strong support for the view that the eviction was unlawful.”

Background

The defendant and his wife, Catherine Kirk, divorced in 2014. The couple arrived at a consent agreement, formalised in the Circuit Court, which involved the sale of property in Co. Cavan as soon as practicable, with the proceeds being split equally after the mortgage and costs of sale were discharged.

While Ms Kirk was registered as full owner over the property in question, which she had mortgaged in 2004, the defendant was entitled to continue to reside there to the exclusion of Ms Kirk pending its sale pursuant to the consent agreement between the parties. While efforts were made to sell the property, the sale repeatedly ran into difficulty and fell through.

By reason of Ms Kirk’s default on the mortgage over the property, legal proceedings issued against her in May 2015 and an order for possession of the property was made by the County Registrar in Cavan on 22 February 2016. The defendant was never named in, or served with, the proceedings.

By order of the County Registrar dated 25 September 2023, the plaintiff was given leave to execute the order for possession of the property. On 15 October 2024, the order for possession was executed by a team of 11 people. The defendant alleged that a group of paramilitary style persons arrived at the house, manhandled him and ransacked the property.

After a period of living in a caravan, the defendant subsequently moved back into the property and was found to be in possession of it on 18 November 2024, at which time he stated that he would move out on 10 December 2024. However, he refused to move out and asserted that the eviction was illegal, leading the plaintiff to involve An Garda Síochána.

The plaintiff issued High Court proceedings on 16 June 2025 seeking orders inter alia restraining the defendant from trespassing on the property. The defendant appeared as a litigant in person.

The High Court

Mr Justice Jordan was unconvinced that the plaintiff had proved that the execution order was lawfully executed.

The judge explained that firstly, it was difficult to see how the defendant could be bound by an order for possession granted in proceedings to which he was not party and which he had not been served with, where he was in occupation of the property when the possession proceedings commenced.

In this regard, the court noted that the plaintiff’s affidavits completely failed to deal with the defendant’s case. Mr Justice Jordan opined: “the evidence which is uncontradicted is to the effect that the defendant has been living in the newer house as his home since 2001 and does have a beneficial interest in the property separate from that occupation under the terms of settlement by reason of para 7.”

The court had further regard to inter alia the standard endorsement in relation to the prior consent of the spouse for the purposes of the Family Home Protection Act 1976, which was left blank on the copy of the mortgage/charge exhibited, noting that “proof of consent is rather important. It may be that the consent is recorded on a separate document. If so, that document should have been exhibited”.

Secondly, the court found that even assuming the existence of a valid order for possession and a valid execution order, the plaintiff had failed to prove that the court messenger was lawfully authorised to act in the eviction by a warrant in writing as required by s.5 of the Enforcement of Court Orders Act, 1926, where the warrant allegedly relied upon had not been exhibited to the application.

On that basis, the court was not satisfied that the plaintiff was a mortgagee in possession where serious questions surrounding the eviction remained unanswered, finding that the plaintiff had failed to establish a strong case likely to succeed at trial.

As to the balance of justice, Mr Justice Jordan found inter alia that damages would not be an adequate remedy for the defendant where he was a man of modest means approaching 70 years of age, and where the property had been his home for 25 years.

The court further highlighted that the plaintiff had failed to provide a valuation of the property and that as the balance outstanding on the mortgage was approximately €95,000, the plaintiff was “well secured” in respect of the debt if it had a valid charge.

Pointing out the significant delays on part of the plaintiff, Mr Justice Jordan considered that while the defendant had been occupation, it was “also a fact that he has had the uncertainty about his home hanging over him for years”.

The court also raised issues in relation to a missing statutory declaration pursuant to s.14 of the Mediation Act 2017 and with the conduct of the application as a form of summary judgment against the defendant, finding that this was “quite inappropriate as there are significant issues which require to be addressed in relation to the events that have transpired in the circuit court proceedings and concerning the eviction”.

Conclusion

Accordingly, the High Court refused the interlocutory reliefs sought and observed that in light of the “troubling” events recorded in the judgment, “a plenary hearing is the appropriate forum for answers”.

Everyday Finance DAC v Clifford Kirk [2026] IEHC 349