About this case:

• Citation:
  [2025] IESC 18
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Delivering his judgment for the Supreme Court, Chief Justice O’Donnell confirmed that there “is an onus on the party who obtains such an injunction to ensure that the proceedings are brought to a conclusion and if there is any culpable delay in that regard, then the court is entitled to, and may be obliged to, set aside the order obtained”.

Background

Tweedswood Limited borrowed nearly €900,000 from First Active (later Ulster Bank) and in August 2009, a receiver was appointed over the company’s only asset, a commercial-type premises in Wexford town centre. A winding up order was made in respect of the company in 2008 which the defendant, the sole shareholder of the company, appealed.

The defendant initially refused to give up possession of the premises to the receiver, leading the receiver and the company to commence plenary proceedings in which an interlocutory injunction was sought in respect of the property. Those plenary proceedings have yet to be heard.

On 5 May 2010, the High Court granted a mandatory injunction putting the receiver into possession of the premises, with the receiver eventually entering into possession thereof. 

The defendant appealed to the Supreme Court and made an application for a stay on the order, which was contested by the receiver on the basis inter alia that the property required remedial works and his remaining in possession to have those works carried out would not prejudice the defendant.

The application for a stay was heard and refused by the Supreme Court on 12 November 2010. The court urged the parties to make progress with the appeal as expeditiously as possible and indicated that the defendant would have liberty to mention the matter to the then Chief Justice in his Thursday list, with a view to having it heard on a Friday.

The appeal was not pursued by the defendant, who instead concentrated on the prosecution of the plenary proceedings and delivered a defence and counter-claim on 9 March 2011. A serious of applications including a number of discovery applications took place thereafter, leading to a further appeal by the defendant.

On 7 December 2017 the Supreme Court refused the defendant’s appeal from the 2008 winding-up order and on 18 December 2019, the appeal in relation to the discovery application was heard and the order varied in minor respects.

Notwithstanding the receiver’s previous contentions, the property was not maintained and fell into disrepair. Accordingly, on 22 May 2023, Wexford County Council issued a dereliction notice in respect of the property.

In 2024, the defendant issued motions seeking inter alia to remove the receiver, to recover possession of the property and seeking an order for attachment and committal against the receiver for failure to comply with alleged undertakings provided to the court in 2010 to carry out remedial works on the property.

While none of the reliefs sought by the defendant were granted by the Supreme Court, the court considered that the state of the premises gave rise to serious concern and the appeal of the interlocutory injunction was thereafter listed for hearing.

The Supreme Court

Chief Justice O’Donnell considered the duty upon the beneficiary of an interlocutory injunction to proceed with dispatch in their substantive proceedings in light of the jurisprudence in this area.

The Chief Justice explained that if a court has jurisdiction to set aside an injunction previously granted due to a delay in advancing the underlying proceedings, an appellate court can similarly take any such delay into account on appeal and is not confined to reviewing the matter in light of the evidence which was before the court which granted the injunction.

In this regard, the court considered that it was “absolutely plain that the trial of this action has not taken place in any reasonable or timely manner” and was not satisfied with the receiver’s stance that there was a lack of enthusiasm about the pursuit of the High Court proceedings which in substance, had become the defendant’s counterclaim against him.

Noting that there was a commercial imperative to ensuring that the proceedings were finalised in circumstances where the receiver alleged that he could not sell or rent the premises given the economic unviability of maintaining and repairing it prior to sale, the court highlighted that this obliged the receiver to see that the proceedings were advanced expeditiously in circumstances where costs continued to accrue.

Where that obligation had not been discharged, the court observed that the receiver “cannot now, having failed to make any real attempt to advance the proceedings, seek to avoid responsibility by blaming either Mr Power or indeed the court system”.

The Chief Justice considered that in circumstances where the receiver was already in possession of the property, where the company which would otherwise have been entitled to take possession is in liquidation and where the defendant had no personal right to attend on the premises, the setting aside of the injunction would not have the “dramatic effect” it might otherwise have had if the company was not in liquidation.

The court highlighted:

The court also considered that it is important to consider whether an injunction is necessary in any given case, particularly if an early trial of the case or less powerful orders can be made which can hold the position in equilibrium pending trial and highlighted: “It is an irony of this case, that had the injunction been refused, the plaintiff receiver would have had a greater incentive to seek to resolve the entire proceedings.”

Chief Justice O’Donnell further suggested that a court should, where possible and through case management, seek to limit the issues necessary to be determined, pointing out: “While courts are conscious of the benefit of allowing a party their day in court, it may not be of any assistance to let a case go to a full and expensive hearing to be dismissed on grounds that could have been determined speedily and more cheaply much earlier.”

Finally, the Chief Justice pointed out that where a company is in liquidation and an individual seeks to assert a claim on its behalf, it must in most cases be possible to establish whether or not such a claim can be maintained whether by way of assignment by the company for good consideration, or under an exception to the rule in Foss v Harbottle.

Conclusion

Accordingly, the Supreme Court allowed the appeal and discharged the injunction.

Tweedswood Ltd. (In Receivership) & Anor v. Martin Power & Anor [2025] IESC 18