Appeal court sets aside contempt of court orders against people in two Dublin properties
Posted on 28th July 2022 at 22:51
The errors regarding the service of the documents left the court with “no option other than to intervene”, said the CoA judge
The Court of Appeal (CoA) has overturned a decision that some 20 people who have lived for several years in two Dublin properties were in contempt of court due to their ongoing refusal to leave the buildings.
The High Court ruled last year that the occupants, who had claimed to have been living at 31 Richmond Avenue, Fairview, and 21 Little Mary Street, Dublin 2, for 15 years had breached orders requiring them to vacate the properties.
The residents said they had failed to comply with orders requiring them to vacate because they had nowhere else to go.
The orders were sought by financial fund Pepper Finance which acquired loans taken out of the properties, whose registered owner is businessman Jerry Beades, which had fallen in arrears.
While some occupants claimed to have paid rent over years to Mr Beades, there was no evidence, since the possession orders were made, that Mr Beades has made payments to anyone else, including Pepper, the Court heard.
The orders were made by Mr Justice Mark Sanfey last year. However, none of the individuals in question were ever committed to prison despite the finding against them.
When making the order the judge expressed his sympathy with the residents’ situation and urged various bodies and the parties to co-operate with each other in a bid to help find alternative accommodation for the occupants.
The occupants, represented variously by John Kennedy SC, Rory Kennedy, George Byrnes, Barra McCabe, Maeve Cox and Philip Fennell, appealed that finding on grounds including that there were several flaws in the manner in which the residents were served the legal documents.
The appeal was opposed on grounds including that it was moot or pointless.
In its decision, the three-judge CoA, comprised of Ms Justice Maura Whelan, Mr Justice Maurice Collins and Ms Justice Teresa Pilkington set aside the attachment and committal orders made by the lower court because the occupants had not been properly served with all the relevant legal documents.
Giving the court’s decision, Ms Justice Whelan said that the failure to effect proper service of those documents was “a material omission”.
The errors regarding the service of the documents left the court with “no option other than to intervene,” Ms Justice Whelan added.
The judge also found that the penal endorsements were invalid and service of the orders was not validly affected in a manner sufficient to form a valid application to involve the contempt jurisdiction of the High Court.
She said that Article 40.4.1 of the Constitution provided that no citizen should be deprived of their liberty except in accordance with law.
Contempt proceedings can affect the liberty of an individual, and every committal order must be considered on its own merits, she said.
In this case, the judge said Pepper had sought the eviction of the occupants from properties it had lawfully recovered from a defaulting mortgagor.
The two properties in question the judge said comprised of 12 units, which were the family homes of the occupants.
The judge said that while Pepper had no direct legal relationship with the occupants it was entitled to seek relief to secure vacant possession.
However, it had not taken adequate steps to ascertain the identities of all those living in the building before the documents were served.
Pepper had also failed to properly serve relevant persons with all of the legal documents concerning the committal applications.
The cumulative effect of the frailties and deficits identified by the CoA was that the orders should be set aside, the judge said.
The judge said that it also appeared the residents were entitled to have their legal costs paid for by Pepper.
The High Court made the contempt ruling after Pepper Finance Corporation DAC had previously secured orders requiring the occupants to vacate the properties.
Following their failure to leave, Pepper obtained an order for the attachment (arrest) of the applicants for the purpose of being brought before the court.
The properties were made the subject of High Court possession orders in 2008, and this was affirmed by the Supreme Court in 2014.
The possession orders arose from a default on loans made by IIB Bank and sold, respectively, to KBC Bank, Beltany Property Finance and to Pepper.
Pepper had claimed some €2.3 million is outstanding on the loans and, as a result of the possession orders, the occupants which included a number of Romanian nationals and two young children, could not rely on lease or rental agreements between them and Mr Beades.
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