About this case:

• Citation:
  [2025] IEHC 362
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Conor Dignam

Delivering judgment for the High Court, Mr Justice Conor Dignam found that the while the adequacy of damage is no longer a separate and determinative factor in its own right, it was nonetheless “a very important, if not the most important” consideration in the balance of justice and that the plaintiff had failed to establish that damages would not be an adequate remedy.

Background

The plaintiff and his wife were parties to a number of loans with Ulster Bank for the purposes of buying properties for “buy to let” purposes, including a property in Banagher, Co Offaly. The loan in respect of the Banagher property was secured by a mortgage dated 22 December 2004.

The loan and mortgage were transferred by Ulster Bank to Promontoria on 12 February 2015. The third defendant was appointed as receiver in July 2016, which appointed was novated to the fourth defendant in November 2020.

In early 2021, the property was advertised for sale by online auction to take place on 19 March, with a guide price of €85,000.

The plaintiff issued proceedings and motions for injunctive relief in respect of various properties. 

By the time the motion in the plaintiff’s 2021 proceedings came on for hearing, the only reliefs sought were to restrain the sale of the property in Banagher, to prohibit the receiver defendants from acting as receiver or manager in respect of that property and to prohibit the receivers, Promontoria and Ulster Bank from interfering with the plaintiff’s rights over the property.

The parties’ positions

The plaintiff contended that the receivers had no power of sale under the mortgage and that in any event, the property was being sold at an undervalue and that the method of sale would not obtain the best price reasonably obtainable.

The defendants argued that the absence of a power of sale for the receiver did not give rise to a fair issue to be tried where Promontoria as mortgagee in possession had a statutory power of sale, which had become exercisable, and that Promontoria would effect the sale.

The defendants also suggested inter alia that the balance of justice would not favour the grant of an injunction where the plaintiff did not deny significant indebtedness to them, that the delay in bringing the motion from the appointment of the receiver in 2016 was sufficient to defeat the plaintiff’s claim for an injunction, and that damages would be adequate where the property concerned was an investment property and where the plaintiff’s undertaking as to damages would be meaningless in light of his significant indebtedness.

The High Court determined that the plaintiff was not entitled to raise a number of points which he had raised in an exchange of a further submissions permitted in light of the lapse of time since the court had reserved its judgment.

However, the court permitted the plaintiff to argue that damages would not be adequate where the court had jurisdiction to award exemplary damages on the basis of Bank of Ireland v Hade [2023] IECA 292 where that case post-dated the original hearing, that the debt was statute-barred where the factual basis for that argument only arose after the original hearing and could make submissions based on Tweedswood Limited & Anor v Power [2025] IESC 18 to the effect that as the defendants had delayed in selling the unsold property, the status quo was that the property was unsold and should be maintained by an appropriate interlocutory order.

The High Court

Having regard to the relevant jurisprudence, Mr Justice Dignam noted that the case would turn on whether the plaintiff established a fair, serious or bona fide question to be tried, a “low hurdle” in the context of a prohibitory injunction.

The court found it unnecessary to consider some of the points raised by the plaintiff in circumstances where it found that the plaintiff had established a fair issue to be tried in relation to the receiver’s power of sale.

In this regard, Mr Justice Dignam had regard to clauses 11 and 12 of the mortgage and noted that the absence of the power of sale was not seriously disputed by the defendants, who contended that Promontoria was entitled to sell as mortgagee in possession by virtue of s.19(1) of the Conveyancing Act 1881 and would sell in that capacity.

The judge highlighted that Promontoria, as mortgagee, may have a power of sale but that this was not what was being exercised where the only evidence of a sale was one by the receivers, and where on the fact of the draft contract of sale, the power being exercised was a power of sale by the receiver qua receiver and not as agent of the mortgagee in possession.

The court further noted that there was no evidence before it demonstrating that Promontoria would in fact sell as mortgagee in possession, that Promontoria was in possession of the property, or that the receiver was appointed as agent of the mortgagee.

In those circumstances, the court was satisfied that the receiver was purporting to sell as receiver and that there was a fair issue to be tried as to whether he had the power to do so.

Turning to the balance of justice, Mr Justice Dignam accepted that there had been delay in which the plaintiff did nothing for five years from the appointment of the receiver and that he had not evinced any intention to challenge the actions of the defendants and in fact, had indicated a willingness to enter a negotiated settlement.

However, the court determined that the weight of the delay was limited because the relief sought was primarily directed toward preventing the sale of the property and the plaintiff did move promptly once the property was put up for sale.

As to the adequacy of damages, the High Court explained that in circumstances where the property was part of an investment portfolio and where there was no evidence of its use as a family home, “the starting point must be that the plaintiff could be compensated by an award of damages”.

Having considered the plaintiff’s argument that his business interests and credit reputation and rating would suffer irreparable harm if an injunction was granted, the court pointed out that the plaintiff did not explain how such irreparable harm would be caused by the sale of this specific property, particularly where the sale of a large number of his other properties had already taken place.

The court further considered the plaintiff’s suggestion that as per Charleton v Hassett [2021] IEHC 746, there was no clear evidence as to his current indebtedness and so the court could not know whether the property would be sold for less than the current debt.

Mr Justice Dignam distinguished Charleton on its facts and found that the plaintiff had failed to establish that damages would not be an adequate remedy.

The judge also considered that, having regard to the relevant case law, any inability on part of the plaintiff to satisfy his undertaking as to damages was “not a disqualifying factor, but it is an important factor in the assessment of where the balance of justice lies”.

Finally, the court considered that while exemplary damage are not a species of compensatory damages, they are “nonetheless a form of damages, and the court’s jurisdiction to award them in an appropriate case in fact seems to me to support the view that damages can be an adequate remedy” and that in any event, the plaintiff had not claimed them in his plenary summons.

In the circumstances, Mr Justice Dignam determined that the fact that the plaintiff had not established that damages would not be an adequate remedy, the delay on part of the plaintiff and the likelihood that the plaintiff could not satisfy an award of damages outweighed the factors in favour of the grant of an injunction. 

Conclusion

Accordingly, the High Court refused the relief sought.

Ryan v Promontoria (Aran) Ireland Limited & Ors [2025] IEHC 362