Mars Capital Finance Ireland D.A.C. v Carty & ors - Appeal of High Court Order

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  Mars Capital Finance Ireland D.A.C. v Carty & ors (Approved) [2026] IECA 40 (18 March 2026)

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THE COURT OF APPEAL

CIVIL

The President????????????????????????????????????????????????????????????????? Approved/No redactions needed

Pilkington J.

McDonald J.??????????????????????????????????????????????????????????????????

???????????????????????????????????????????????????????????????? High Court Record No.2023/2092P

Court of Appeal No. 2025/84

Neutral Citation Number: [2026] IECA 40

Between:-

MARS CAPITAL FINANCE IRELAND D.A.C.

Plaintiff/Respondent

and

PATRICK CARTY AND IDENA CARTY AND ANY PERSON IN OCCUPATION OF THE PROPERTY AT NEWTOWN, CAIM, ENNISCORTHY, IN THE COUNTY OF WEXFORD

Defendants/Appellants

?JUDGMENT of Mr. Justice McDonald delivered on 18 th March 2026?

Introduction

1. This is an appeal by the defendants/appellants ("the appellants") from what is, technically, an interlocutory order made by the High Court (Stack J.) on 29 th January 2025 directing the appellants to vacate the premises comprised in Folio 38117F Co. Wexford and restraining them from interfering with the plaintiff/respondent ("Mars") in the exercise of its rights over the property. For reasons which will become clear, the circumstances of this case are quite different to the usual position encountered in actions relating to land where, at the interlocutory stage, the respective rights of the parties remain to be adjudicated at a subsequent hearing on the substantive merits. Here, there have already been court proceedings in which a final determination has been made, on the merits, that the appellants must give up possession of the property in issue.

The grounds of appeal

2. Although the written submissions of the appellants address a broad range of factors, the grounds of appeal (as set out in the amended Notice of Appeal) are limited to four specific grounds. These are:

(a) It is contended that the judge erred in determining that an execution order (which I will describe in more detail presently) was valid in? circumstances "where the said Order having expired had not been renewed within its currency as is required pursuant to Order 36 Rule 13 of the Rules of the Circuit Court".

(b) The second ground of appeal advanced is that the judge "appeared to afford insufficient weight on the process of obtaining execution orders and placed excessive weight on the stay granted by the Circuit Court whereby she appeared to take the view that an execution order is unnecessary. This reasoning appears to be at variance with the decision of Simons J. in Start Mortgages v. Kavanagh where he took the view that the carrying out of execution orders was 'a solemn process'"

(c) The third ground put forward is that the judge "failed to put sufficient weight on the process of obtaining the Execution Order and further in circumstances where the Plaintiff failed to put the Defendant on notice of such an application for an order and the issuing of the order."

(d) The remaining ground of appeal (which is the only additional ground contained in the amended notice of appeal) seeks to suggest that the execution process in this case suffers from the same "defects" as those discussed in Start Mortgages v. Kavanagh [2024] IEHC 125 [2025] IECA 127. However, the ground is framed in a very unsatisfactory way and is wholly lacking in detail. It merely says:

"Following from Grounds 1-3 on grounds of there being several defects throughout the execution process including as identified in Start Mortgages v. Kavanagh ...".

3. It will be seen that the grounds of appeal are concerned solely with the execution process. It follows that this appeal must be confined to those grounds. The appellants are not entitled to expand their appeal beyond them. This is especially so in the particular circumstances of this appeal where the appellants have been given the opportunity to deliver an amended notice of appeal. I should explain that their appeal was previously dismissed on 14 th June 2025 by reason of the appellants' failure to comply with the directions of the Court. This culminated in an "unless Order" being made on 4 th June 2025. The appellants did not comply with that order within the timeframe fixed by the Court. This had the consequence that dismissal of their appeal immediately followed. However, later, the appellants brought an application to set aside the dismissal of the appeal. That application came on for hearing before the Court on 29 th July 2025 when the Court agreed to reinstate the appeal on certain terms. As part of the order made on that day, the Court, in light of the decision of the Court in Start Mortgages v. Kavanagh (discussed below) , gave liberty to the appellants to lodge and serve an amended notice of appeal. Having availed of the benefit of that order, the appellants are not entitled to expand their appeal beyond the amendment made pursuant to the order. In fairness to them, their counsel, in oral submissions, at the hearing of the appeal, did not stray beyond the issues raised in the amended notice.

Factual backdrop

4. In order to understand how the issues arise, it is necessary to identify some of the basic facts and to refer to a number of provisions of the Circuit Court Rules which govern the underlying execution process.

5. It is not in dispute that, on 6 th December 2017, the Circuit Court granted an order for possession of the property in issue to Permanent TSB plc ("PTSB"). Those proceedings (record number 432/2014) were brought by PTSB, as plaintiff, against the appellants, as defendants, on foot of a registered charge over the property that had been granted by the appellants to PTSB (then called Irish Life and Permanent plc) as security for their indebtedness. The folio shows that this charge was registered on 20 th November 2009.

6. There are a number of features of the Circuit Court proceedings leading to the order of 6 th December 2017 that should be noted:

(a) The civil bill commencing the proceedings was issued on 9 th June 2014. In it, PTSB sought an order for possession of the property in issue on the basis of the charge registered in its favour and on the basis that the appellants were significantly indebted to PTSB. In the grounding affidavit of Mr. James O'Brien, the underlying loan facility of 19 th July 2007 was described under which PTSB agreed to advance to the appellants the sum of ?495,000 on the security of a mortgage over the property in issue. Mr. O'Brien explained that no repayment had been made since 5 th April 2012 and he also averred that, as of 12 th May 2014, there was a total of ?484,086.66 due and owing by the appellants on foot of the loan. Mr. O'Brien exhibited the relevant mortgage documents and the folio showing registration of the mortgage as a charge;

(b) It is clear from Mr. O'Brien's affidavit that, prior to the commencement of the Circuit Court proceedings, PTSB had been in correspondence with the appellants in respect of their indebtedness but that, ultimately on 3 rd January 2014, a written demand had been made by its solicitors calling for repayment of the entire amount due. As one would expect, that letter concluded with a suggestion that the appellants might wish to seek advice from the Money Advice and Budgeting Service. The letter said:

"If you are presently experiencing financial difficulties, you can contact the Money Advice and Budgeting Service (MABS). MABS is a national, free, confidential and independent service for people unable to discharge their debts."

(c) The suggestion made by PTSB that the appellants might wish to seek advice from the Money Advice and Budgeting Service was both sensible and responsible. If a debtor is prepared to engage with creditors, there are many ways in which personal debt can be addressed. Thus, for example, at the time this suggestion was made in 2014, the Personal Insolvency Act 2012 had been enacted. It provided a number of new mechanisms and facilities to enable insolvent debtors to resolve their indebtedness in an orderly and rational way without recourse to bankruptcy.

(d) It is also clear from Mr. O'Brien's affidavit that, in circumstances where the correspondence culminating with the letter of 3 rd January 2014 did not result in payment being made, a demand for possession of the property was subsequently made by PTSB's solicitor on 13 th January 2014;

(e) It appears that PTSB experienced difficulty in serving the Civil Bill on the appellants. Thus, on 23 rd March 2015, an order was made by the County Registrar giving liberty to PTSB to serve the Civil Bill and any subsequent documents on the appellants by ordinary pre-paid post. The order also fixed 25 th May 2015 as a new return date for the Civil Bill;

(f) As the evidence before the High Court judge shows, the hearing of the Civil Bill was adjourned from time to time. There is nothing in the materials before this Court to suggest that any attempt was made by the appellants to seek relief under the Personal Insolvency Acts 2012-2015 during that time even though both of those Acts were then in force and even though the amendments made by the 2015 Act afforded a route by which a debtor could seek to save a family home through the mechanisms and facilities available under that legislation;

(g)?The claim for possession was finally heard and determined on 6 th December 2017 when Judge O'Malley Costello made the order for possession. The order records that, before doing so, the judge heard argument from both counsel for PTSB and counsel representing the appellants. The judge placed a three month stay on the order from 6 th December 2017. The order was subsequently served on the appellants on 8 th March 2018 by post which was the manner of service directed by the order of 23 rd March 2015.

(h) Significantly, the order for possession made by the Circuit Court was not appealed. It is therefore a final and binding order which had the effect of finally determining that PTSB, as owner of the registered charge over the folio, was entitled to possession of the property in issue. To state the obvious, the legal effect of the order was that, on expiry of the 3-month stay, the appellants were legally obliged to give up possession of the property to PTSB. The court process culminated in a determination that they had lost the right to live there. That is why, at the outset of this judgment, I stressed that the circumstances of this case are quite different to those cases where a court is asked to intervene at a stage when the substantive rights of the parties as to ownership or possession of property have yet to be determined by a court. Another factor that is at play in the particular circumstances of this case is the public interest in ensuring that court orders are obeyed. The administration of justice would be put in jeopardy if court orders are not obeyed by the parties to proceedings before the courts.

7. Subsequent to the Circuit Court decision in favour of PTSB, its interest in the charge and related loan facilities were transferred to Start Mortgages DAC ("Start"). The folio also shows that, on 28 th March 2019, the charge in favour of PTSB was transferred to Start. That fact is important. As found by this Court in Tanager v. Kane [2018] IECA 352 [2019] 1 IR 385, s. 31 of the Registration of Title Act 1964 has the effect that the registration of Start as owner of the charge constitutes conclusive evidence of Start's ownership which was not capable of being challenged in the possession proceedings. In that case, the Court held that, in possession proceedings, a court is required to accept the correctness of the particulars of registration as they appear on the folio and cannot hear argument that the registration was wrongly made. In other words, the Court is not entitled to "look behind" the register.

Steps taken to proceed with execution to give effect to the order for possession made on 6 th December 2017

8. As noted in para. 6(g) above, the Circuit Court order requiring them to give up possession of the property was served on the appellants on 8 th March 2018. That was after the three-month stay had expired. In the ordinary way, where a defendant does not voluntarily give up possession of property, the next step would be for the plaintiff in Circuit Court proceedings to apply to the relevant Circuit Court office to issue an execution order directed to either a Sheriff or County Registrar (as the case may be) requiring then to take possession of the property. In this case, there was a transmission of interest from PTSB to Start. Following its registration as owner of the charge, Start filed a motion in the Wexford Circuit Court office on 10 th July 2019 seeking an order that it be substituted as plaintiff in lieu of PTSB and also seeking an order pursuant to O. 36, r. 10 of the Circuit Court Rules ("the Rules") giving leave to Start to issue execution in respect of the possession order made by the Circuit Court. That rule recognises that, after a relevant order has been made, there may be an assignment of the judgment creditor's interest and the rule facilitates an application by the assignee to issue execution in its own name.

9. At that time, O. 36, r. 10 provided as follows:

"If, at any time during the period of twelve years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application"

10. It is clear from that rule that notice is required to be given to the defendant where an application is made by a successor in title to a judgment creditor for leave to issue execution. It is suggested by the appellants that Start's application was made without giving notice to them. That case is made in an affidavit sworn by the first appellant on 24 th June 2025 grounding the application to add ground 4 to the notice of appeal in which he said that there is no evidence before the Court of any notice to the appellants. ?However, in response to that allegation, a detailed affidavit was sworn by Ms. Mair??d N? Ghabh?in on 9 th July 2025 in which she exhibits a copy of the application made by Start under O. 36, r. 10. Crucially, she exhibits a copy of the relevant affidavit of service of the application upon the appellants. The affidavit in question was sworn by Mr. Stephen Dillon on 31 st July 2019 and, in it, he exhibited the respective certificates of posting of the motion and affidavit on each of the appellants. The certificates confirm that the papers were posted to each of them on 25 th July 2019 at precisely the same address as that given by the first appellant in his affidavit sworn on 24 th June 2025. In the circumstances, it is clear that the provisions of O. 36, r. 10 were complied with and that the assertion to the contrary advanced by the first appellant in his affidavit is plainly wrong.

11. On 18 th February 2020, the Circuit Court made the order sought by Start giving it leave to issue execution in respect of the order for possession made on 6 th December 2019. That order was not appealed. The effect of the order of 18 th February 2020 was that Start was now empowered to secure compliance with the order of 6 th December 2017 through the execution process which provides a lawful and effective means to ensure that court orders for possession of property can be enforced in circumstances where a party has failed to comply with the order. This enforcement process is a necessary and integral aspect of the administration of justice to secure compliance with court orders in circumstances where they have not been obeyed.

12. At this point, it may be helpful to describe, in more detail, how the process of execution is commenced. Essentially, if a defendant does not voluntarily give up possession of property the subject of a court order of the kind made on 6 th December 2017, the plaintiff can apply in the court office for an execution order directing the sheriff (or, more commonly, the county registrar) to take possession of the property in question from the defendant against whom the order was obtained. There is no need to make an application to a judge. In the case of the Circuit Court, this is addressed in O. 36, r. 9 of the Rules. At the time in issue here, the relevant terms of that rule provided as follows:

"Every decree of the Court ... shall be in full force and effect for a period of twelve years from the date thereof, and an execution order based on any such decree may be issued in the Office within the said period, but not after the expiration of six years from the date of such decree ... without leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable"

13. It is clear from that rule, that a judgment creditor has a period of 6 years in which to seek an execution order from the Circuit Court office without leave of the Circuit Court. If, however, execution is sought after 6 years, leave of the Court must be sought on notice to the defendant.

14. Where the execution order is sought within the initial 6-year period, there is no requirement to put the defendant on notice that an execution order is to be sought. It is not difficult to see why that is so. Execution is the consequence that inevitably follows where an order of a court granting possession has not been obeyed. If one has got to the stage of execution, there is already in existence an enforceable court judgment which has been made after consideration and rejection of any defences which may have been asserted on behalf of the defendant or where, at minimum, the defendant has been afforded time to contest the claim and has failed to do so. At that point in the proceedings, there has already been a judicial determination of the objective necessity that possession should be yielded up to the plaintiff. The requirements of notice and foreseeability (as mentioned by Hogan J. in Irish Life & Permanent plc v. Duff ? [2013] 4 IR 96 at p. 111, and in Clare County Council v. McDonagh [2022] 2 IR 122 at p. 148) have already been satisfied. ** Crucially, the relevant defendant's opportunity to make submissions (as to why possession should not be granted to the judgment creditor) has either already been availed of or has already passed. Any consideration of the underlying merits has already taken place. ?Any stay which may have been granted, has already expired. Thus, there is nothing which a defendant can assert at that point in response to the application for execution.

15. Here it is clear that the appellants had every opportunity in advance of December 2017 to make their case. The Circuit Court could not be said to have acted precipitately in making the order for possession. A period of more than two years passed between the new return date for the Civil Bill of 25 th May 2015 and the making of the order for possession on 6 th December 2017. In addition, as I have previously mentioned, it is clear on the face of the order that the appellants had the benefit of representation by counsel at the hearing of the Civil Bill.

16. For completeness, it should be noted that, on 12 th January 2023, the first appellant filed a motion in the Circuit Court office seeking to challenge the legality of the Civil Bill. There is nothing in the materials before the Court to explain what happened to that motion but it is very clear that it was hopelessly misguided. The effect of the final and binding - and unappealed - order of 6 th December 2017 meant that it was too late to raise issues of that kind. The order of 6 th December 2017 meant that such issues could not be relitigated (a principle known, in Latin as used by lawyers, as res judicata).

17. Similarly, it should also be noted, for completeness, that, on 13 th February 2023, the first applicant issued a plenary summons in the High Court in which a large number of parties were named as defendants including, the State, the Attorney General, The Minister for Justice, PTSB, Start and a number of other parties in which bizarre claims were made including an allegation that the first appellant is "immune" to court orders and that the Government had failed to take action to impeach judges.

The renewal of the execution order

18. There is no dispute in this case that an execution order was issued to Start on 20 th November 2020. That was within 6 years since the date when the order for possession was made such that Start was entitled to the execution order without having to seek leave of the Circuit Court or to put the appellants on notice. Under O. 36, r. 12, that execution order had a lifespan of one year. That meant that, unless execution took place within that period, the execution order expired on 19 th November 2021. As it transpired, execution did not take place within that period. However, O. 36, r. 13 provides a mechanism for the renewal of an execution order at any time during the currency of the relevant Circuit Court order. That rule provides:

"An execution order may, on the application of the party entitled thereto, be renewed in the Office at any time during the currency of the decree or judgment in respect of which it was originally issued for the period of not more than one year from the date of such renewal, provided that the said decree or judgment be in full force and effect for the period for which the said execution order is so renewed. The fact of the renewal of any such order shall be indorsed thereon and the order shall be re-sealed. An order for execution so renewed shall have effect and be entitled to priority according to the time marked thereon as the date of its original issue."

19. That rule must be read with O. 36, r. 14 which requires that an affidavit be made in support of the renewal of the execution order. It provides:

"A person seeking renewal of an order for execution shall make and file an affidavit averring that he is entitled to such renewal and setting out all credits, if any, to which the person liable to such execution is entitled and, where the judgment, decree or order sought to be enforced is for payment of money, the amount then due on foot thereof."

20. The execution order in this case records that it was renewed in the Circuit Court office on 23 rd May 2022 which was well within a 6-year period after the order for possession was made on 6 th? December 2017. In that context, I do not believe that the appellants are in any position to dispute the fact that the execution order was renewed on that date. In his affidavit sworn on 24 th June 2025, the first appellant, Mr. Carty, went so far as to exhibit a copy of the execution order as renewed on 23 rd May 2022. The copy order is endorsed in the manner prescribed by O. 36, r. 13. He also exhibited a copy of a letter sent to him by the Wexford County Registrar dated 31 st August 2022 giving notice that it was proposed to execute the order after 30 th September 2022. The letter also stated that, if the appellants vacated the property before that date, they should contact the County Registrar to arrange to hand over the keys.

The case made by the appellants in relation to the renewal of the execution order

21.?However, the appellants have sought to dispute that Start followed the steps required by O. 36, r. 14. In his affidavit, Mr. Carty has contended that there is no evidence that the necessary affidavit required by that rule was ever made or filed. In response, Ms. N? Ghabh?in has exhibited a copy of the affidavit sworn for the purposes of that rule by Ms. Eva McCarthy on 17 th February 2022 in which Ms. McCarthy averred that Start was entitled to the renewal of the execution order and in which she confirmed that no payments had been made by the appellants since ?400 was paid on 5 th April 2012. She also stated that, as of 31 st January 2022, there was a sum of ?536,579.48 due and owing by the appellants to Start. Thus, it is clear that the requirements of O. 36, rr. 13 and 14 were, in fact, complied with by Start. The assertion to the contrary by Mr. Carty is clearly without substance. In the circumstances, there is plainly no factual basis for the suggestion made in the first ground of appeal (as recorded in para. 2(a) above) that the execution order has not been renewed within the currency of the order for possession of 6 th December 2017. That ground accordingly fails.

22. In their third ground of appeal, the appellants maintain that Start was under an obligation to put the appellants on notice of the application to renew the execution order. For reasons which I will address at a later point in this judgment, this was the only ground of appeal pursued by their counsel at the hearing of the appeal. In support of this ground, the appellants rely on the decision of Dunne J. in Carlisle Mortgages Ltd. v. Canty [2013] IEHC 552 [2013] 3 I.R. 406. In that case, an execution order in respect of a High Court order for possession had been renewed for a period of one year from 4 th July 2011. An application was made outside that one year period for a further renewal of the order. The defendant argued that this was not permitted having regard to the language of the applicable rule in the High Court namely O. 42, r. 20 of the Rules of the Superior Courts which provides as follows:

"An execution order ..., if unexecuted, shall remain in force for one year only from its issue, unless renewed in the manner hereinafter provided; but such order may, at any time *before its expiration, by leave of the Court, be renewed by the party issuing it for one year from the date of such renewal and so on from time to time **during the continuance of the renewed order, either by being marked with the seal of the High Court, bearing the date of the day, month and year of such renewal, or by such party giving a written notice of renewal to the sheriff, signed by the party or his solicitor, and bearing the like seal; and an execution order so renewed shall have effect, and be **** entitled to priority, according to the time of the original delivery thereof."?* (emphasis added)

23.?Having regard to the very specific terms of that rule, Dunne J. upheld the defendant's argument. On that basis, she held that, where an execution order has previously been renewed in respect of an order for possession, a second or subsequent renewal of that execution order must be obtained during the continuance of the period of validity of the previously renewed order. However, as Noonan J. made clear in Irish Life & Permanent plc v. Duffy [2017] IEHC 760, the decision in Carlisle Mortgages Ltd. v. Canty is based on the specific provisions of the Rules of the Superior Courts and has no application to the Rules of the Circuit Court. In his judgment in that case, Noonan J. drew attention to the provisions of O. 36, rr. 9, 12, 13 and 14 of the Circuit Court Rules. In para. 9 of his judgment, he dealt with the effect of those rules as follows:

"It will be seen therefore that the rules do not require an application to court on notice to the defendant where a renewal is sought provided that the original execution order was made within six years, as it was in this case. Equally, the rules do not require that the execution order can only be renewed while it is still in force i.e. during the period of a previous renewal. This is evident from the plain words of the rules themselves."

24. Noonan J. rejected the argument that the approach taken in Carlisle Mortgages Ltd. v. Canty applied. In para. 11, he observed that the decision of Dunne J. in that case was perfectly consistent with the explicit wording of 0. 42, r. 20 of the Rules of the Superior Courts. But, as he emphasised, the language used in the Circuit Court Rules is different. In paras: 12 to 13 of his judgment, he said:

"12. The wording of the Circuit Court rule is of course entirely different. In contrast, it provides that the execution order may be renewed 'at any time' and it is notable that words equivalent to 'during the continuance of the renewed order' are manifestly absent from the Circuit Court rule. There is no warrant in my view for reading into the Circuit Court rule words that are plainly not there and would have the effect of entirely altering its clear meaning.

1. I am therefore satisfied that there is no merit in the defendant's argument that any invalidity attaches to the renewal order in this case made on the 20th November, 2013..."

25. In my view, Noonan J. was plainly correct in his view that Carlisle Mortgages Ltd. v. Canty has no application to cases in the Circuit Court which are governed by differently worded rules. While it may appear odd that there is a divergence between the Rules of the Superior Courts governing the High Court, on the one hand, and the Rules of the Circuit Court, on the other, the fact remains that this case is governed by the Rules of the Circuit Court. The text of O. 36, r. 13 has already been set out in para. 18 **** above. As counsel for the respondent observed at the hearing of the appeal, there are a number of features of that rule that make it very clear that there is no requirement to put the judgment debtor on notice of a request to renew an execution order:

(a) In the first place, it is very clear that there is no express requirement to give notice to the judgment debtor;

(b) Second, the rule expressly provides that the request for renewal is to be made in the Circuit Court Office rather than to a judge. That reinforces the conclusion that the rule does not require notice to be given to the judgment creditor. The Circuit Court Office is plainly not empowered to resolve issues between parties that might arise if the rule required notice to be given to the judgment debtor. This is to be contrasted with O. 36, r. 9 (quoted in para. 12 above) which expressly requires an application to be made to the Circuit Court itself on notice to the judgment debtor where it is sought to issue an execution order more than 6 years after the relevant decree or judgment was given by the Court;

(c) Third, given the difference between the approach taken in rule 9, on the one hand, and rule 13, on the other, it is evident that the drafter of the Circuit Court Rules made a deliberate choice to require notice to be given in one case but not in the other. Had the true intention of rule 13 been that notice should be given to the judgment creditor, the drafter would, surely, have used similar language in rule 13 to that found in rule 9;

(d) Fourth, the language of the rule is to be contrasted with the language used in the Superior Court Rules considered by Dunne J. in Carlisle Mortgages Ltd. v. Canty. As Noonan J. highlighted in Irish Life & Permanent plc v. Duffy , the scope to renew an execution order under the rule in issue in Carlisle Mortgages Ltd. v. Canty was restricted in that the rule required that the application be made "during the continuance of the renewed order". In contrast, O. 36, r. 13 is not restricted in the same way. It allows the application to renew to be made at any time during the currency of the "decree or judgment in respect of which it was originally issued" which in this case is the order of 6 th December 2017. The renewal here was manifestly effected within the currency of that order.

26. Accordingly, the attempt by the appellants to rely on Carlisle Mortgages Ltd. v. Canty is entirely misconceived. It is of no assistance to them and it does not establish that the appellants were entitled to be given notice of the application to the Circuit Court Office to renew the execution order. There is no such requirement in the Circuit Court Rules. Counsel for the appellants sought to make the case that the Circuit Court Rules should follow the approach taken by the Superior Court Rules in respect of execution orders issued in the High Court. He submitted that, if the Circuit Court Rules are "silent", the High Court position should be adopted. However, for all of the reasons discussed in para. 25 above, it is clear that the Circuit Court Rules are not silent on the issue. Order 36, rule 13 explicitly provides that renewal can be obtained in the Circuit Court Office and, in contrast to O. 36, r. 9, it does not provide for notice to be given to the judgment debtor. That cannot be construed as silence. Having regard to the express requirement in rule 9 for the notice to be given where 6 years have passed since the relevant order was made by the court, it is obvious that a deliberate choice was made by the drafter not to require notice to be given under rule 13.

27. In so far as the balance of his argument is concerned, counsel for the appellants put forward no reasoned basis to support his suggestion that the Circuit Court Rules should follow the position in the High Court. Nor did he identify any principle of law that mandates such an approach. In the circumstances, I am of the view that the appellants have failed to sustain the only ground that was pursued at the hearing of the appeal.

The remaining grounds of appeal

28. Although neither of the remaining grounds were pursued (namely those identified at paras. 2(b) and 2(d) above), it is, nonetheless, necessary to address those grounds in light of the application made by counsel for the appellants at the outset of the hearing of the appeal. In that context, it should be noted that, at the outset of the hearing, counsel for the appellants, very properly, indicated that, in light of the additional evidence placed before the Court by the respondent in response to the amended notice of appeal, he could no longer seek to make the case that there were defects in the process of executing the execution order of the kind discussed in the judgments of the High Court and this Court in Start Mortgages v. Kavanagh. He nevertheless suggested that one of two courses should be taken: either that the matter should be remitted to the High Court so that the matter could be considered afresh at first instance or that his clients should be awarded the costs of the appeal. In so far as the first of those alternatives is concerned, he conceded that it was possible to supplement a party's evidence on appeal in an interlocutory matter but he argued that this deprived his clients of the right to have this material assessed at first instance with a subsequent right of appeal if, for any reason, the High Court erred in its assessment of the matter. In my view, that suggestion is misconceived in circumstances where, as counsel himself acknowledged, the additional evidence has addressed any concerns that arose in relation to the issues discussed in Start Mortgages v. Kavanagh.

29. In so far as the second of those alternatives is concerned, he submitted that the respondent should have placed this additional evidence before the High Court and that it had been constrained to place this evidence before this Court in order to plug the evidential holes which he submitted had previously existed in the respondent's case.

30. In response, counsel for the respondent strongly resisted both of these suggestions and argued that the issues which had been debated in Start Mortgages v. Kavanagh had not featured in the case made before the High Court judge and that the additional evidence was only placed before this Court in light of the new case made by the appellants in their amended notice of appeal. For this purpose, it should be noted that the alleged similarities with Start Mortgages v. Kavanagh were first raised in submissions and in an affidavit of Mr. Carty delivered in June 2025 but they went beyond the ambit of the notice of appeal. The amended notice of appeal was then lodged on 26 th August 2025 while the additional evidence from the respondent in relation to the execution process was filed on 14 th October 2025.

31. It should be recalled that the amendment made to the notice of appeal involved the addition of a fourth ground of appeal to the effect that the execution process undertaken in this case shared the same "defects" in the execution process as those which were "identified" in Start Mortgages v. Kavanagh. It would be wrong, however, to characterise anything said by the High Court and Court of Appeal in that case as an identification of a "defect". Neither court went that far. Both courts were careful to make clear that they went no further than to suggest that issues arose on the face of the material before the court which could not be resolved on the basis of the limited evidence and legal argument available at an interlocutory stage.

32. In light of the dispute which arises between the parties in relation to costs, it is necessary to address the issue that arises in relation to the decision in Start Mortgages v. Kavanagh.

? The grounds of appeal relating to the decisions in *Start Mortgages v. Kavanagh*

33. In order to understand how the issue arises in relation to Start Mortgages v. Kavanagh, I should first refer to the events of 26 th January 2023 and describe what subsequently occurred in the proceedings in the High Court. Thursday, 26 th January 2023 was the day on which the execution order was executed against the property. According to the affidavit sworn by Mr. Carty, he was not in the property at the time but he said that he received a telephone call from a friend on that day to say that "there was activity" at his home and that members of An Garda S?och?na and "people with security vests" had climbed over the wall of the ** property. Mr. Carty said that, when he subsequently returned to the property a short time later, there was no one present but he found that the locks had been changed and the water turned off. He described how, notwithstanding the change of locks, he managed to re-enter the property by removing a pane of glass. Since that time, the appellants have remained in physical occupation of the property.

34. In response to the re-occupation of the property by the appellants, Start commenced these proceedings in the High Court on 9 th May 2023 in which Start sought orders requiring the appellants to vacate the property and restraining them from trespassing on the property. Damages are also sought (including aggravated and exemplary damages) for trespass, slander of title, and "causing loss by unlawful means". A motion was subsequently brought seeking an interlocutory injunction directing the appellants to vacate the property and restraining them from impeding Start in exercising its rights over the property. This is the motion that led to the order of Stack J. which is the subject of this appeal.

35. I should explain that, subsequent to the commencement of the proceedings, Start transferred its interest in the charge and the related indebtedness to the respondent to the appeal namely Mars Capital Finance Ireland DAC ("Mars"). By order of the High Court (Stack J.) made on 30 th July 2024, it was ordered pursuant to O.17, r. 4 that Mars be substituted as plaintiff in the proceedings in lieu of Start. At the time the application was first brought before the High Court, Start was the moving party and its application as grounded on the affidavit of Ms. Antoinette Roche, an asset manager employed by Start. In para. 12 of that affidavit, she stated that:

"On 26 January 2023, Martin Boyle, Court Messenger duly authorised by the County Registrar for the County of Wexford, duly executed the Order for Possession and vacant possession of the Property was handed over to the Plaintiff through its nominated agent, Sean Cahill of Blackwater Bailiff & Asset Management Services Limited ("Blackwater"). I beg to refer to the Authorisation of Mr Boyle dated 19 October 2022 as set out in the Execution Order of Possession and correspondence from Deirdre Burke, under Sheriff for the County of Wexford dated 27 January 2023 confirming same ..."

36. Ms. Roche then exhibited the execution order on which the renewal was endorsed on p.1, the named Court Messenger's authority was endorsed on p. 2 and the execution of the order was endorsed on p. 3. The endorsement of the Court Messenger's authority was duly signed by Ms. Burke, the county registrar for County Wexford above the words "Sheriff or County Registrar". While it would have been better if the words "Sheriff or" had been deleted, the key point is that the indorsement of authority was signed by a person with the relevant power, namely the county registrar, there being no sheriff for County Wexford. Obviously, the most important elements of that order (both of which were clear on the face of the order) were (a) the fact that the order had been renewed for one year from 23 rd May 2022 such that it was still in force and (b) the fact that the Court Messenger's authority to execute the order was clearly identified on p. 2. Those aspects of the order demonstrated to anyone affected by the order that the order was still valid and that the Court Messenger was duly authorised to carry out the execution. The indorsement of the execution of the order is not of the same level of importance. That is done, after execution has been effected, to provide confirmation to the judgment creditor that execution of the order has taken place and to record, for the judgment creditor's benefit, the result of that execution. As Allen J. observed in a case bearing a similar name, Start Mortgages DAC v. Vincent Kavanagh [2022] IEHC 114, at para. 39:

"Good practice requires that execution of the order should be endorsed, but any failure to endorse would not invalidate the execution which has already taken place. It is ridiculous to suggest that the entitlement of the dispossessed householders to break into the house might turn on whether the execution of the execution order had been endorsed ...."

37. For completeness, I should explain the manner in which execution was endorsed. It is clear from the face of the document that a rubber stamp was first applied. That rubber stamp has a number of possible outcomes (many of which are more relevant to an execution order in respect of a money judgment) ranging from "fully paid" to "no goods" with a blank box beside each possible outcome. One of the outcomes is described as "Other (Specify)". That is the box that has been ticked and the word "EXECUTED" has been inserted beside the box. It is perfectly clear what that means namely that the Order has been executed. The exhibit also contains the covering letter sent by Ms. Deirdre Burke who described herself in the letter as "Under Sheriff for the County of Wexford". The text of the letter demonstrates that it is no more than a covering letter for the purposes of returning the execution order to Start. It is plainly not a document that is intended to have any legal effect and it merely states: "I return Order for Possession, possession of the lands having been handed over to your clients". It is also not a document that is required to be served on anyone other than the addressee namely the solicitors for Start.

38. In the High Court, the appellants initially represented themselves and the first appellant swore a detailed and lengthy affidavit in which he sought to raise a large number of issues. These included an assertion that the execution order had expired in November 2021 and that it had not been renewed. For the reasons previously discussed, that assertion was plainly wrong. However, the first appellant relied on it to make the case that Start had acted unlawfully in taking possession of the property in issue. It appears to be clear from the first appellant's affidavit that the appellants knew that the execution order had been renewed in the Circuit Court order but they alleged that renewal of an execution order required an application to be made to the Circuit Court on notice to them and that this meant that the execution process undertaken in January 2023 was invalid. I have already shown that this argument is misconceived. Mr. Carty also contended that the original order for possession had been made in favour of PTSB and he suggested that Start was not entitled to pursue execution in place of PTSB. Reference was also made to a number of decisions which, it was suggested, provided support for the appellants' position. Notably, the decision in Start Mortgages v. Kavanagh was not among the authorities cited. Among the other allegations advanced were that Start was not the legal or beneficial owner of the mortgages sold by PTSB. It was also alleged that Start had misled and misrepresented its ownership of the loan to the appellants and that it was insolvent and not in a position to honour an undertaking as to damages. The only issue that was sought to be raised in relation to the process of execution was that the Court Messenger had not been authorised by a warrant under s. 5 of the Enforcement of Court Orders Act 1926 to carry out the execution of the order.

39. At a later point, solicitors and counsel were retained by the appellants. Accordingly, they were represented by counsel at the hearing before the High Court. It is clear from the ex tempore judgment of the High Court judge delivered on 29 th January 2025 that a number of additional points were raised by counsel on the appellants' behalf at the hearing. These included a submission (described by the High Court judge as a really cogent submission) about the extent to which some exhibits had been redacted, an argument based on constitutional considerations, and an argument in relation to the renewal of the execution order. There is nothing to suggest that any argument was made by reference to the High Court decision in Start Mortgages v. Kavanagh which was then under appeal to this Court. It is unsurprising in the circumstances that, at the hearing of this appeal, no attempt was made on behalf of the appellants to contradict the contention made by counsel for Mars that Start Mortgages v. Kavanagh had not featured in the High Court hearing.

40. It is, therefore, clear that the first time any issue was raised in respect of Start Mortgages v. Kavanagh was when the notice of appeal was delivered in April 2025 when ground 2 suggested that the reasoning of the High Court judge was "at variance" with the decision of Simons J. in that case. It was difficult to know what that meant. It was not until the appellants delivered their submissions (together with an affidavit of Mr. Carty) in June 2025 that Start Mortgages v. Kavanagh was addressed in any level of detail and this was followed in August 2025 by the amended notice of appeal in which the case was made that there were " several defects throughout the execution process including as identified in Start Mortgages v. Kavanagh". Until the amendment was made to the notice of appeal, the issue was not properly before the Court. It follows that, until the delivery of the amended notice of appeal, there was no reason for Mars to place evidence before the Court dealing with the details of the execution process.

41. There is now extensive evidence before the Court in relation to that process. In response to the amended notice of appeal, Mars delivered a number of affidavits. First, there is an affidavit sworn by the Wexford county registrar, Ms. Deirdre Burke, on 9 th October 2025. There is also an affidavit of Mr. Martin Boyle, the Court Messenger, sworn on 9 th October 2025 and there is an affidavit of Mr. Sean Cahill of Blackwater Bailiff & Asset Management Services Limited ("Blackwater") sworn on the same day. Each of Ms. Burke, Mr. Boyle and Mr. Cahill were present at the property in issue for the purposes of the execution of the execution order on 26 th January 2023 and they give evidence as to the events of that day and their respective roles in those events.

42. As noted above, it was conceded by counsel for the appellants in the course of the appeal hearing ?that this additional evidence "attends to" the allegations in relation to the defects but, in support of his submission on costs, he argued that the evidence ought properly to have been before the High Court and that Mars had left it until the appeal to properly make its case for the first time. In order to address this argument on costs, it is therefore necessary to look in more detail at the basis for counsel's contention.

43. As I have previously observed, ground 4 of the amended notice of appeal has been drafted at a very unsatisfactory level of generality. No relevant details have been provided and the alleged "defects" have not been identified. However, it was asserted in the appellants' written submissions delivered in June 2025 and in Mr. Carty's affidavit sworn on 24 th June 2025 that identical issues arose in this case as in Start Mortgages v. Kavanagh.?The alleged defects at issue in Start Mortgages v. Kavanagh were as follows:

(a) The description of the property in the execution order did not precisely match the description of the property in the order made by the High Court directing the defendants to deliver up possession. No similar suggestion has been ventilated here;

(b) There was a discrepancy between the addressee of the execution order who was identified as the county registrar and the officeholder who ultimately returned the order to the judgment creditor under cover of a letter dated 21 st June 2023 where she was identified as the "under sheriff" for County Wexford;

(c) The letter of 21 st June 2023 did not identify when or by whom possession had been handed over;

(d) There was no suggestion in the affidavits that the county registrar or "under sheriff" had any direct involvement in the execution process;

(e) The execution process was conducted by a court messenger but there was no evidence that the court messenger had been duly authorised. It appears from paras. 35 to 36 of the judgment of Simons J. in the High Court in that case that this was regarded as a very important factor in his conclusion that the defendant had raised an arguable ground to suggest that the execution purportedly effected in that case was invalid.

44. In contrast to the position in Start Mortgages v. Kavanagh, the following evidence was made available by Mars in this case in response to the amended notice of appeal:

(a) First, as noted previously, there is an affidavit sworn by the Wexford county registrar, Ms. Deirdre Burke, on 9 th October 2025 in which she first refers to the execution order issued on 20 th November 2020. She also refers to the renewal of the order on 23 rd May 2022. In para. 4, Ms. Burke confirms that she was asked by Start's solicitors to proceed with taking possession of the property in accordance with the execution order. In para. 5, she explains that, while s. 3(2) of the Enforcement of Court Orders Act 1926 (as amended) ("the 1926 Act") provides that all execution orders are to be executed by the "under sheriff", that office was transferred to and vested in the county registrar by ss. 54(2) and 54(3) of the 1926 Act. In the same paragraph, she explains that, under s. 5(1) of the 1926 Act, she is authorised to appoint a court messenger to execute or to assist in executing any execution order. In exhibit DB1, she exhibits the execution order. This is the same document as that previously exhibited in the course of the High Court proceedings by Ms. Roche, as described in paras. 36 to 37 **** above. On the second page of that order, she has endorsed the warrant of appointment of Mr. Martin Boyle as court messenger to execute the execution order. That is signed by her. In her affidavit, Ms. Burke also addressed a number of other matters but, before turning to that aspect of the affidavit, it may be helpful to first turn to the affidavit of Mr. Martin Boyle sworn on 9 th October 2025 and also the affidavit of Mr. Sean Cahill of Blackwater Bailiff & Asset Management Services Limited ("Blackwater") sworn on the same day;

(b) In Mr. Boyle's affidavit, he confirms that he was appointed as court messenger for County Wexford on 9 th December 2012. In para. 3, he also states that, as exhibit DB1 to Ms. Burke's affidavit confirms, he was authorised to execute the execution order, as renewed. He then addresses the events of 26 th January 2023. He confirms that he attended at the property on that day along with Ms. Burke and Mr. Cahill for the purposes of execution and that he had the execution order with him. He then says that he knocked on the door of the property and that there was no answer whereupon he instructed Mr. Cahill to have the locksmith engaged by Blackwater to break the locks to the door of the property following which they confirmed that that the property was vacant and Mr. Boyle says that he then handed over vacant possession to Mr. Cahill on behalf of Start. Mr. Boyle also says that Mr. Cahill arranged to have the locks changed and that Mr. Cahill signed a certificate dated 26 th January 2023 confirming that he acted for Start and that he had received clear possession of the property;

(c) That certificate is then exhibited by Mr. Cahill who confirms the account of the events of 26 th January 2023 as recounted by Ms. Burke and Mr. Boyle and says that, after he confirmed that the property was vacant, Mr. Boyle indicated that he was then in a position to hand over vacant possession of the property.;

(d) Returning to Ms. Burke's affidavit, she says that on the back page of the execution order (which is exhibit DB1 to her affidavit) she affixed a stamp to certify that the execution order had been executed. She then describes the manner in which execution was endorsed which I have previously set out in para. 37 **** above;

(e) Finally, Ms. Burke says that on 27 th January 2023, she wrote to Start's solicitors. That letter is exhibit DB3 to her affidavit. The letter was signed electronically by Ms. Burke as "Under Sheriff for the County of Wexford" but Ms. Burke says in para. 13 of her affidavit that her understanding is that the 1926 Act did not abolish the role of under sheriff but that, instead, the role has now been vested in the county registrar. For that reason, she says that she describes the "division of my Office which handles enforcement of Court Orders as the Sheriff's Office". The letter bears a record number 3900/2022 which is different to the record number of the Circuit Court proceedings but Ms. Burke explains in her affidavit that she allocates a new record number to a "Sheriff's Office" file.

45. It will therefore be seen that there is considerably more evidence available in this case about the circumstances of the execution process than there was in Start Mortgages v. Kavanagh. It is clear from that evidence that Mr. Boyle, the court messenger, was duly authorised by the county registrar to execute the execution order. His warrant of authority to do so was duly endorsed on the second page of the execution order. That said, unlike the position in Start Mortgages v. Kavanagh, the evidence as to his authority had previously been presented by Ms. Roche in her affidavit grounding the relief sought by Start from the High Court. As outlined earlier, the execution order with Mr. Boyle's warrant of authority endorsed on it was an exhibit to Ms. Roche's affidavit. It was therefore available to the appellants and their legal team in advance of the High Court hearing such that they could have raised any points in relation to it. In this context, it is important to keep in mind that, unlike the defendant in Start Mortgages v. Kavanagh, the only point in relation to Mr. Boyle's status made by the appellants in their lengthy replying affidavit in the High Court was that there was an alleged failure to exhibit "the stand alone mandatory warrant which must be issued by the County Under Sheriff specifically naming and authorising the court messenger to act as clearly stated in 1926 Enforcement Act (sec 5)" (emphasis in original) . It is clear that the point made by the appellants was much narrower than the point raised by the defendant in Start Mortgages v. Kavanagh. Their contention was not that Mr. Boyle was not authorised but that any warrant of authorisation had to be effected by means of a stand-alone document. No authority has been cited to support the suggestion that a stand-alone warrant is required. Crucially, the warrant of Mr. Boyle's authority was endorsed on the execution order exhibited by Ms. Roche. That was plainly available to the appellants at the time Mr. Carty swore his affidavit in the High Court proceedings. That may explain why their argument was focused on the stand-alone issue.

46. It is equally clear from the evidence that everything that was done on 26 th January 2023 in taking possession of the property was done under Mr. Boyle's direction and control and that both he and Ms. Burke, the county registrar were present. Unlike the position in Start Mortgages v. Kavanagh, no point was made in Mr. Carty's replying affidavit in the High Court about lack of evidence as to Mr. Boyle's role in the enforcement process. On the contrary, Mr. Carty referred in para. 34 of his affidavit, to the county registrar, the court messenger and Mr. Cahill scaling the wall of the property and entering into it. Thus, on this appeal, Mars did not present the evidence as to Mr. Boyle's involvement in the execution process in response to any specific point raised by the appellants. Mars did so in response to the generalised (but wholly uninformative) suggestion in the amended notice of appeal that this case suffered from the same "defects" as had been identified in Start Mortgages v. Kavanagh.

47. There is also evidence from Ms. Burke, the county registrar, to explain her use of the term "under sheriff" in her letter of 27 th January 2023. Notwithstanding her use of that term, it is clear that she was, in fact, the county registrar for County Wexford, at all material times and that, in that capacity, she had all necessary statutory power in connection with the execution of execution orders including the power to authorise Mr. Boyle, to execute the order on her behalf. ** In that context, a number of provisions of the 1926 Act are relevant. First, s. 3(2) provides that all execution orders of the Circuit Court are to be executed by the "under-sheriff":

"Subject to the provisions of this Act and of rules of court made under the Courts of Justice Act, 1924 , all execution orders of the Circuit Court ... shall be executed by the under-sheriff in the like manner and with the like powers, rights and authorities and subject to the like duties and obligations as similar writs of execution of the High Court have heretofore been executed by the under-sheriff."

48. Next, s. 5(1) empowers the "under-sheriff" to authorise a court messenger to carry out the execution. Court messengers are appointed under s. 4 of the 1926 Act. Section 5(1) provides:

"Every court messenger when assisting the under-sheriff in the execution of an execution order or when executing an execution order for an under-sheriff shall be furnished by the under-sheriff with a warrant in writing signed by the under-sheriff and authorising the court messenger by name to execute or assist in the execution of that particular execution order, and no court messenger shall execute or take part in the execution of any execution order unless duly authorised so to do by such warrant as aforesaid."

49. Here, as I have noted earlier, the warrant endorsed on the second page of the execution specifically named Mr. Boyle and authorised him to execute the order. It is true that it was signed by Ms. Burke as "Sheriff or County Registrar" but that is simply because the form of order caters for both eventualities. It is the case that, in some counties (as is the case in Dublin) there is still a sheriff. Given that Ms. Burke is the Wexford County Registrar, it was plainly signed by her in that capacity.

50. The use by Ms. Burke of the term "under-sheriff" is explained by her by reference to the provisions of s. 54 of the 1926 Act. As she identifies in her affidavit, the office of under-sheriff was not abolished by the 1926 Act. Instead, s. 54(1) merely provided that no such officers should be appointed after the passing of the Act and s. 54(2) then provided that, in every county in which the office of under-sheriff is vacant at the commencement of the Act, all of the powers of the under-sheriff should be transferred to vested in and imposed upon the county registrar. Section 54(1) and (2) provide as follows:

"(1) No appointment shall be made to the office of under-sheriff after the passing of this Act.

(2) In every county and county borough in which the office of under-sheriff is vacant at the commencement of this Part of this Act all the powers, duties, authorities, rights and obligations of the several under-sheriffs of such counties and county boroughs respectively shall as on and from such commencement become and be transferred to and vested in or imposed on the several county registrars of such counties and county boroughs respectively."

51. The effect of those provisions is that there can be no doubt but that Ms. Burke, as county registrar, has all of the powers which the 1926 Act conferred on under-sheriffs. That is the crucial point for present purposes. It is unnecessary at this stage of the proceedings to reach any concluded view as to whether Ms. Burke is correct to refer to herself in this context as under-sheriff or whether she should more properly refer to herself as county registrar. It is not in doubt that she is the county registrar for County Wexford and that, as county registrar, she has all of the powers vested in the office of under-sheriff under the 1926 Act. All of that said, I would suggest that, for the future, given that there have been no appointments of under-sheriff since the passing of the 1926 Act, it would make sense for county registrars to identify themselves as such rather than continuing to use the description of an office that, in practice, no longer exists. Equally, it would make sense for solicitors acting for judgment creditors to ensure that the execution orders drawn up by them for presentation to county registrars should be appropriately addressed to the county registrar rather than to a sheriff or under-sheriff. The only municipal areas in the State in which sheriffs (other than Revenue sheriffs) stand appointed are the counties and cities of Cork and Dublin.

52. It seems to me that, with the exception of the factual issue that arose in Start Mortgages v. Kavanagh as to whether the court messenger was duly authorised in that case , the evidence presented by Mars on this appeal in response to the amended notice of appeal addresses and provides answers to the questions which were of concern to Simons J. and this Court in that case. In those circumstances, I hope that the record of Ms. Burke's evidence as set out in this judgment will be of assistance in relation to any similar cases which may arise in the future. While there may have been particular reasons to present evidence from the county registrar and the court messenger in this case, it is clearly undesirable that court officials should be asked to provide evidence in this way. Given the explanations provided by the county registrar here, it should generally be sufficient, for the future, that any necessary affidavit addressing the execution process should be sworn by the representative of the judgment creditor present at the execution of the order and that the deponent of that affidavit should exhibit the relevant execution order and, in cases where the execution has been effected by a court messenger, the deponent should also exhibit the warrant of appointment of the messenger, whether endorsed on the execution order or contained in a separate stand-alone document. In cases where a judgment debtor contests the legality of an execution process, that is the essential evidence that would be required to prove the existence and continued force of the execution order and the authority of the messenger to act on foot of it. It would also be good practice to exhibit the endorsement confirming that the execution of the order has been effected. However, for the reasons discussed above, this is not crucial provided that there is evidence from a representative of the judgment creditor describing the relevant events during which execution of the order for possession was effected.

53. Although the evidence presented by Mars on appeal is of assistance in addressing the points of concern in Start Mortgages v. Kavanagh, it is clear from an examination of the replying affidavits in the High Court that, unlike what occurred in that case, no equivalent points were raised in these proceedings by the appellants until after the notice of appeal was filed. In circumstances where no issue was raised in the High Court which mirrored the points discussed in Start Mortgages v. Kavanagh, there was plainly no need for Mars to adduce evidence of that kind in the High Court and counsel for the appellants was mistaken in so far as he suggested that this evidence ought have been placed before the High Court. The execution order (as renewed) bearing the endorsement of the court messenger's warrant of authority was before the High Court. It was evident on the face of the execution order that it was in force and that the warrant of authority of the court messenger was endorsed on it. The evidence before the High Court was that execution had duly taken place on 26 th January 2023 and that possession of the property had been handed over to Start by the court messenger. In the absence of any evidence on behalf of the appellants that raised an arguable basis to think that there was an infirmity in the case made by Mars, there was no reason for Mars to place such evidence before the High Court.

54. I can therefore see no basis on which it would be appropriate to award costs to the appellants. They have brought an appeal which has failed. In circumstances where they did not raise Start Mortgages v. Kavanagh points in the High Court, they cannot argue that the decision of the High Court judge was wrong on any of those points. It is true that this is, technically, an interlocutory application and, as such, the appellants were entitled to place new evidence before the Court for the purposes of supporting ground 4 of their amended notice of appeal. In so far as they have raised those points, they have been met with a comprehensive answer in the additional evidence placed by Mars before this Court. In raising these points on appeal, the appellants took the risk that such an answer might be forthcoming. Furthermore, as noted previously, the appellants' counsel has, very properly, conceded that the additional evidence deals with the Start Mortgages v. Kavanagh points. That evidence was provided in October 2025 many weeks before the appeal was due to be heard on 16 th December 2025. Yet, the appellants persisted in the appeal. They did not withdraw it. In all of these circumstances, it would be quite wrong to award the costs of either the High Court or of the appeal to the appellants. On the contrary, Mars are presumptively entitled to their costs of the appeal but I would be prepared to give the appellants, should they wish to avail of it, a period of 14 days from the date of delivery of this judgment to deliver a submission of not more than 1,500 words in support of any argument they may wish to make that there should be no order as to costs. In the event that such a submission is forthcoming within that period, Mars is at liberty to deliver a replying submission of not more than 1,500 words following which the Court will deliver a ruling on costs electronically.

One other matter raised by Mr. Carty in his affidavit sworn on 24 th June 2025

55. Mr. Carty, in his affidavit, raises a further issue in relation to the execution order. He maintains that he was denied the benefit of a 3-month stay which he claims was to be provided under the execution order. That allegation is not within the ambit of the appeal but, even if it were, there is, in my view, no substance to that contention. The opening words of the execution order merely recite the terms of the underlying order of 6 th December 2017 which, as I have previously noted, provided for a 3-month stay from that date. The appellants had the benefit of that stay before any application was made for an execution order.

The outcome of the appeal

56. In light of the above conclusion, it is clear that the appeal must be dismissed. For the reasons outlined in para. 54 above, Mars are presumptively entitled to their costs but a final decision on that issue will be made in accordance with the directions set out in that paragraph.

57. In my view, the High Court judge was correct to grant an injunction in this case. As outlined above, the application before her was quite different to the usual case of alleged trespass where an injunction is sought in advance of a court determination, on the merits, on the issue of the respective rights of the parties. Here, in December 2017, there was a hearing, on the merits, of the crucial ?issue as to whether PTSB (in whose shoes, Mars now stands) was entitled to possession of the property in issue. The appellants had every opportunity to make their case on the merits of that issue in the lengthy period between May 2015 (when the Civil Bill was given a new return date) and December 2017 (when the proceedings were determined). They did not appeal the Circuit Court decision notwithstanding that any such appeal would have afforded them a complete re-hearing of the case. There is no evidence that they sought any relief under the Personal Insolvency Acts 2012-2015.

58. For the reasons which I have previously outlined, it is an essential element of the administration of justice that court orders must be obeyed. The order of the Circuit Court imposed an obligation on the appellants to give up possession of the property on the expiration of the 3-month stay. That is a very significant factor that must be kept in mind in cases of this kind. The execution order in this case was to give effect to an order for possession that was binding on the appellants. In the absence of evidence of a real and substantial defect in the execution process, the appellants, once the execution had taken place, were not entitled to take the law into their own hands and re-enter the property. As Owens J. observed in similar circumstances in Doyle v. Houston [2025] IECA 289, at paras. 54 to 57:

"54. The courts are obliged to ensure to litigants who turn to them to declare and enforce their rights, that their remedies are effective...

55. An injunction to restrain trespass has generally been readily granted at the behest of any party who has been ousted from possession of land by an intruder. This right derives from possession. An intruder who cannot show a better right to possession than the party ousted will be prohibited from remaining in possession. Damages are usually not an adequate remedy for this type of trespass...

56. As Keane J. pointed out in the first edition of 'Equity and the Law of Trusts in Ireland', trespass to land is a tort that readily attracts the remedy of an injunction. As he stated in Keating & Company Ltd. v. Jervis Street Shopping Centre Ltd. [1997] 1 I.R. 512 at 518: '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.' ...

57. This principle must apply with greater force where the trespass complained of is an ouster of possession given on foot of a court order. In such cases, there is usually no arguable defence to the claim that the person ousted should, as of right, be put back into possession forthwith."

59. In the High Court, the judge correctly cited Keating & Company Ltd. v. Jervis Street Shopping Centre Ltd in her ruling. 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. In support of its case, the plaintiff relied on its title to the public house. At p. 518, Keane J. (as he then was) 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.'

60. It is clear from the approach taken by Keane J. that, even in a case where the property owner (whose title is not in issue) has not yet had the benefit of a court ruling on the merits, the prima facie position is that the court will intervene, by means of an interlocutory injunction, ?to protect the property right in issue and that the onus will lie on the defendant in such a case to put forward an arguable basis as to why the use by the defendant of the plaintiff's property is lawful. But, as Owens J. has identified in Doyle v. Houston, the position of a plaintiff in a case such as this is even stronger. Here, as I have stressed, Mars has the benefit of a final and conclusive judgment, following a hearing on the merits, that it is entitled to possession of the property in issue and that the defendants, after the expiry of the 3-month stay, no longer had any entitlement to remain there.

61. Of course, it is essential that the process of execution of court orders for possession of property should be carried out correctly. In the case of dwellings, that follows from Article 40.5 of the Constitution and, in all cases, that follows from the fact that the execution process is a court process. However, in cases where the legality of the process is challenged, it follows from all of the considerations outlined in paras. 57 to 60 above, the challenger bears the burden of establishing an arguable ground to suggest that the execution process was defective. Arguable grounds would include evidence of a lack of appropriate authority to carry out the process or evidence that the execution order was no longer in force at the time of the purported execution. If arguable grounds are shown to exist, then the question of whether it is appropriate to grant an interlocutory injunction would fall to be assessed in accordance with the ordinary principles governing the grant of such injunctions.

62. In this case, no arguable ground has been established to suggest that the execution process was defective in any way. In my view, the High Court was right to grant the injunction in issue against the appellants who had lost the right to remain in the property and who have shown no arguable basis to justify their re-entry into the property following the completion of the execution process.

63. Finally, it is important that parties should be aware that, under s. 25 of the 1926 Act as amended by s. 26 of the Criminal Justice Act 1951, it is an offence to enter, without the consent of the judgment creditor, on property which has been the subject of an execution process under which possession has been given to the judgment creditor. As amended, s. 25 provides as follows:

"Whenever an under-sheriff shall have entered on and taken possession of any lands or premises under an execution order directing him to put any person (in this section referred to as 'the owner') into possession thereon and shall have delivered possession of the said lands and premises to the owner pursuant to such execution order, every person who? without the consent of the owner enters on the said lands and premises and takes possession thereof or of any part thereof shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for any term not exceeding six months or, at the discretion of the Court, to a fine not exceeding fifty pounds or to both such imprisonment and such fine."

64. Costello P. and Pilkington J. have authorised me to say that they agree with this judgment and with the order and directions which I propose.

Result:     Appeal dismissed.

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