Corcoran v Everyday Finance Designated Activity Company and Ors

1 An Árd Chúirt The High Court High Court (sitting in Cork City) record number: 2025 3096 P [2026] IEHC 146 Dolores Corcoran Plaintiff v Everyday Finance Designated Activity Company, David O’Connor, Permanent TSB PLC and Gerald Kean Practicing Under the Style and Title of Kean Solicitors Defendants Judgment of Mr Justice Peter Charleton ex tempore on Thursday 5 March 2026 1. This is a claim for an interlocutory injunction. I must start at the general endorsement of claim, as you cannot get an injunction without a plenary summons unless it is an emergency, and one has given an undertaking to issue a plenary summons immediately on going into court. In the general endorsement of claim here, essentially the case that is being made relates to two properties that were subject of a guarantee: 6 Henrietta Street and Portnahully, which are both in Waterford and which are the subject of a loan as security. As I understand it, the value of the loan is not all that important. What is important is that, if an injunction is not granted by the court, the financial institution in question, which in essence is Everyday Finance DAC, will be entitled to proceed in the ordinary way to sell the relevant properties, and that essentially is what has been sought to be injuncted here. The plenary summons dated 29 May 2025 claims those injunctive reliefs and also seeks to claim damages for trespass, for defamation, intentional interference with it seems, contractual or economic rights, damages for breach of contract, and damages for negligence. There seems also to be a claim as against a solicitor called Gerald Kean. The date of this plenary summons, which I mentioned is 29 May 2025, is to be noted but the alleged wrongs date back to the time when the relevant facilities were entered into about 20 years ago. The law 2. Let me start with the law, as this is an interlocutory injunction. The first thing that has to be shown is that there is a fair case to be tried, and if there is not a fair case to be tried, one does not go on to any question of the balance of convenience, or whether damages are an adequate remedy or not. I am relying on the decision of Hoey v Waterways Ireland [2021] IESC 34. The Court deals at [37] of that judgment with the question of how strong the case needs to be in seeking a prohibitory injunction, as opposed to a mandatory injunction. All the relevant authorities are considered in Hoey, including Merck Sharp & Dohme Corp v Clonmel Healthcare Ltd [2019] IESC 65; [2020] 2 IR 1, Campus Oil v The Minister for Industry (No 2) [1983] IR 88; [1984] ILRM 47, Fanning v Public Appointments Service [2015] IEHC 663, O’Gara v Ulster Bank of Ireland DAC [2019] IEHC 213, Educational Company of Ireland v Fitzpatrick [1961] IR 323, Esso Petroleum Co v Fogarty [1965] IR 531, 2 and the well-known textbook by the former Chief Justice Ronan Keane, ‘Equity and the Law of Trusts in Ireland’ (3rd edn, Bloomsbury, 2017). 3. Therefore, the test as embraced in Campus Oil is whether a fair, bona fide question has been raised and Hoey takes exactly the same test. As the textbook by Ronan Keane points out, the test adopted is a more practicable and workable one than that which requires the plaintiff to prove, in necessarily truncated and inconclusive interlocutory proceedings, that he is more likely to win than to lose. What the Court says in Hoey is, what should be borne in mind is that the prospect of confusion arising from an analysis of what is fair, what is put up in good faith, and that there are extreme ranges as to what is arguable, from what is barely stateable to what is not at all convincing, to what is beyond sensible contradiction, as for instance, where a situation occurs when you have a statute on your side, supporting you by black-letter law. Essentially, following on the decision of O'Donnell CJ in Merck Sharp & Dohme, injunctions are about preserving situations to ensure that justice is done when there is a full hearing in due course, in relation to whatever points the parties need to raise. That, of course, brings into play the balance of convenience. 4. It is therefore necessary that a fair and sensible case to be tried is, first of all, demonstrated and obviously the burden is on the person seeking the injunction, and then that damages are not an adequate remedy. It is easy to dispose, it seems, of the not an adequate remedy last requirement because we are dealing here with real property. Every piece of real property is unique, and no doubt, people have very deep attachments to pieces of land or houses that they have owned. Due to this, that second aspect of the test does not concern us here or ordinarily in an injunction application to preserve real property. What does concern us more than anything is whether there is a case to be tried here. In other words, is there a primary basis of a realistic case to be tried? Background 5. All of this arises out of a loan. If we go back to the very beginning, we have an amended loan offer dated 21 December 2005 which was made between EBS Building Society and Dolores Corcoran and Michael Corcoran. Michael Corcoran is since deceased, but he was the father, as I understand it, of Dolores Corcoran. The letter is headed “Amended Loan Offer”. The amount in question that was to be loaned was €600,000 for a 20-year term at a repayment amount of €2,125 per month from 21 December 2025 or from when the letter was signed, which was later in that month. There was an initial capital amortisation for a year, but that thereafter, what was going to be paid back was both principal and interest. There is no doubt that that money was paid. There is no doubt that the relevant interest rate was variable at 4.25% per annum, rate basis, with variable commercial property rate. There is no doubt that the properties secured under the heading “Security” are a first legal mortgage over the relevant property at 6 Henrietta Street in Waterford, with an extension of the bank's first legal mortgage over the properties of the borrower at Portnahully, Carrigeen, Waterford and at 2 Huntersway, Castlegrange, Williamstown. That last property does not concern us. 6. Then, there are other provisions in the letter. The one that is most emphasised here, in seeking an injunction, is paragraph 12, which says “subject to EBS receiving written confirmation from the borrower's solicitor that the borrowers have been advised of the implications of using the family home as security for this loan”, and that comes in the context of a letter-form contract whereby all previous loan offers raised on the particular account, which is this relevant account, are displaced and these conditions are set down in replacement. Now it is argued by the applicant for the injunction, that last condition in relation to the family home, is a condition precedent, and that without compliance with it, the entire contract fails. 3 7. One then goes forward in time to see what happened in relation to this loan and the security over these two properties. As I understand it from the affidavit evidence produced by Dolores Corcoran, essentially the grim circumstances put before the Court are, I am afraid, all too familiar, certainly from anyone who sat in the Commercial Court from 2008 on which essentially is that whatever the business enterprise was that was going to be pursued, it did not flourish. There was a failure to make the payments as they came due month by month. There were probably discussions with the bank, but in due course, basically the possibility of repaying the loan, which by this stage, has nearly doubled in value due to interest etc, had become impossible. As I said, that unfortunately, is a familiar story from the economic crash. Of the properties mentioned 2 Huntersway has already been sold for €210,000 and the loan in relation to 6 Henrietta Street has apparently become €750,000, but the figures are actually not relevant. What is relevant is whether or not this Court should injunct the bank from selling those properties pending the full trial of the action based upon the plenary summons dated 29 May 2025. Validity of the loan transfer 8. Three points have been argued, and argued very well. The first is that, as will be noticed, the title of this case is Dolores Corcoran against Everyday Finance and David O'Connor, who is the receiver, or the person charged with taking possession or dealing with the property, selling them, usually, Permanent TSB and Gerald Kean. Those are the defendants. Gerald Kean did not appear. The first point is this: that we do not know that Everyday Finance is, in fact, the correct assignee of the loan that the proposed actions by the receiver and the proposed sale into the future is based on. Dealing with that point first, it is said that it cannot be known that Everyday Finance is in fact, the relevant assignee, because of the number and amount of redactions that are made to the loan purchase agreement between Everyday Finance and AIB, in various iterations, and EBS. In furtherance of that case, I have been referred to Pepper Finance Corporation (Ireland) DAC v Moynihan [2024] IEHC 625 which is a decision of Mr Justice Simons. In the course of that judgment, he was concerned that, as is argued in the present case, the beneficial interest in the underlying debt was held by an entity other than the entity which contracted with the plaintiff. In the course of that judgment, he noted at [19] that: Pepper Finance has exhibited a heavily redacted deed entitled “mortgage sale deed” dated 28 September 2012. The mortgage sale deed appears to consist of 26 pages. Of these, the equivalent of approximately 18 pages have been redacted entirely. The redactions are not confined to the schedule of properties and security documents, i.e. information which might identify other borrowers. Rather, whole swathes of the operative clauses of the deed have been omitted. The table of contents of the deed indicates that there are 18 clauses. Of these, 15 have been redacted almost in their entirety. 9. Mr Justice Simons goes on at [20-21] In consequence, it is simply impossible for the court to interpret the deed or to determine its precise legal effect. It is not, for example, possible to identify the events which would trigger an obligation on the part of Pepper Finance to transfer the legal title in the underlying debt to the purchaser or its nominee. Still less is it possible for the court to know whether any of these (undisclosed) events might already have occurred. The court cannot be satisfied, therefore, on the basis of the heavily redacted version of the deed that the legal title to the underlying debt still remains with Pepper Finance. If a party to litigation wishes to rely on a deed as establishing a particular proposition (here, that the ownership of the legal title remains with Pepper Finance), then it is necessary for 4 that party to exhibit the deed in a form which is meaningful. It is not appropriate to exhibit a deed with more than three quarters of its contents obliterated. Nor is it appropriate to attempt to summarise in a few lines of an affidavit what is undoubtedly a complex commercial transaction. 10. In that regard, he follows the observations of the Court of Appeal in Pepper Finance Corporation (Ireland) Ltd v Macken [2021] IECA 15. That I think, in sum, is the legal position. In other words, the question for the Court is, has so much been redacted that the Court cannot, in fact, follow what the deed is trying to do in transferring the loans. Turning to the deed in question, it is the kind of contract with which, again, the Court has become familiar because of the 2008 economic crash. This is due to the fact that, following on the economic crash of 2008 a great number of loans were sold by the original holding parties, whether it was EBS or AIB, to a company, a factoring company or some other form of financial company, with the relevant statutory authority to enforce loans which they took over, presumably at an undervalue, thereby entering into a business arrangement through which, by the purchase of those loans, they hope to recover more than they paid. 11. That is reality. Some people have a pejorative name for these funds, but it is something that has been part of commercial life, literally, for centuries. This deed is dated 14 June 2019. On the face of it, it is clear as to who the parties are. Party number six is Everyday Finance, and the deed witnesses a certain number of definitions, including a completion date, ancillary rights and claims, finance documents means the security documents or underlying loan agreements which would include facility letters. There is a part redacted there. The price is set out under underlying loans whereby unconditionally, the parties that say the banks, including the relevant party here, absolutely grant onto the buyer, who is Everyday Finance, the rights subsisting in relation to the existing loans. Is that clear, or unclear? How much of this has been redacted? The answer to that is, it is possible that 10% has been redacted, and then there is a schedule, and obviously that is redacted because the Court does not want to know about the troubles of other parties. But what is not redacted is the references to Ms Dolores Corcoran and Mr Michael Corcoran on three and more occasions. Further on in the deed, about four pages in, there is a reference to a guarantee given by Michael Corcoran and Dolores Corcoran dated 21 December 2005. The facility letter to which this relates is described as a rolled‑up facility letter. There is also another reference to a separate guarantee by Michael Corcoran and Dolores Corcoran on a different date, and again this is linked to a rolled‑up facility letter. There is then a further reference to EBS and to a relevant deed. That relevant deed is exactly what one would expect: there is the loan itself, and, in addition to the loan, there is a guarantee provided by the borrowers. This reflects the fact that when money is borrowed in these circumstances, liability does not arise solely under the original loan agreement. There is also a guarantee securing repayment of the loan by any other party who signed it, which, in this case, appears to include Michael Corcoran, who has since passed away. 12. What test do I need to apply in relation to this? Well, what is argued is that we do not know what was happening legally, and that if we did know what was happening by way of contract, the construction that the Court might be putting on this would be different to what the legal reality should be. Section 64 of The Registration of Title Act 1964 sets out the following: (1) The registered owner of a charge may transfer the charge to another person as owner thereof, and the transferee shall be registered as owner of the charge. (2) There shall be executed on the transfer of a charge an instrument of transfer in the prescribed form, F86[...] but until the transferee is registered as owner of the charge, that instrument shall not confer on the transferee any interest in the charge. 5 … (4) On registration of the transferee of a charge, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and the transferee shall— (a) have the same title to the charge as a registered transferee of land under this Act has to the land, under a transfer for valuable consideration or without valuable consideration, as the case may be; and (b) have for enforcing his charge the same rights and powers in respect of the land as if the charge had been originally created in his favour. 13. It seems to me that it is clear that there has been a transfer. It is also clear what the nature of the transfer that was entered into actually was. And it is clear to me as well that the registration has been effected in that regard. Reading through the papers, I note that notice was given by EBS to Ms Dolores Corcoran on 20 June 2019 that Everyday Finance, having its registered office at a particular place, was taking over the loan. I notice also a ‘hello’ letter, which is what it is called, of 28 June 2019, which basically gives what it says is important information, indicating, that Everyday Finance are taking over the loan and that they are able to enforce the loan. I do not know, if that is the case, that a point might be raised in relation to delay, if there was any point on that, because this happened now almost seven years ago, but an injunction is sought now some nearly seven years later, the point being that the transfer is not proven to be valid. I do not accept that the transfer is not proven to be valid. I do not accept either that there are so many reductions that I am left in a position of guessing precisely what is going on. It really is not the case at all. What is there perhaps was somewhat over-redacted. However, what is left clearly shows to me that the nature of the instrument, what it purports to do, and the effect on the plaintiff and on the defendants is operative in law. Alleged failure of advice as a condition precedent to drawdown 14. The second point is an equitable point in relation to the Family Home Protection Act 1976, allied to a point about advice from Gerald Kean, and whether or not, in the context of what is alleged to be a failure, there is a condition precedent in the facility letter whereby the other operative parts of the facility letter are rendered invalid. This would, it is argued, make it that the transfer of the original money, €600,000, or whatever it then became with interest was not done as a matter of law. It is furthermore claimed that the only remedy by the bank now is a remedy in equity, and that circumstances of inequitability operate so as to bar the recovery by Everyday Finance of the loan which they purchased from EBS. What first of all should be noted here is that there is actually no evidence at all that Gerald Kean did not notify, as was required by the facility letter in his capacity as a solicitor to the original lender, EBS, that he had explained the implications of The Family Home Protection Act 1976 to the borrower, for whom he acted, and the legal position of putting a guarantee or a charge by way of security over something that was, at one stage, a family home. In fact, all that is said in the affidavit is, “I do not know whether this happened”. Certain other allegations are made against Mr Kean: but that is not good enough. It is not enough to seek an interlocutory injunction on the basis that something might not have happened. I think at the least, there has to be a fair arguable case based on an assertion in clear terms that a particular thing that should have happened did not happen, and that it had a consequent legal effect on the underlying validity of a transaction. That is not the case that has been made out here. 6 15. The judgment of Mr Justice Barrett in the case of Allied Irish Banks v Plc v Murray [2019] IEHC 294 and the analysis which he gives there is as someone who is an expert in this area is of assistance. I am not entitled to depart from a decision on the same level unless it is manifestly wrong, or unless it is indicated to me clearly that something that should have been argued was not argued and would have changed the decision. The relevant part of Murray is this: Ms Murray argued that the facility letter in that case required as a condition precedent to drawdown that AIB be furnished with confirmation of the provision of legal advice to any guarantors, which confirmation was not provided. At [2(iii)] of the judgment, it is said : This seems more properly a matter for AIB and the borrower. Be that as it may, such a condition precedent is in any event clearly for the benefit of the bank (to avoid a guarantor later claiming that s/he did not appreciate the significance of what s/he was doing) – the notion that a bank would seek in its own terms to benefit a guarantor through the inclusion of such a condition precedent seems a mite unreal; the foregoing being so the clause could be waived by AIB. Even if this were not so, and the court is alive in this regard to the (surprising) decision of the Court of Appeal in ACC Loan Management v. Sheehan [2016] IECA 343, point (iii) fails in any event for the following reason: the condition precedent cuts both ways, affecting bank and borrower; by proceeding to drawdown, bank and borrower clearly agreed, at the least impliedly, that the condition precedent should not apply. So by waiver and/or agreement the condition precedent lapsed. 16. I have no doubt that that is the case here, and that this authority is binding as the decision is on the same level as me. I also note that whether that happened or not, and there is no evidence that it did not, that this registration actually took place. The money was in fact borrowed, “Notice of Change” was, in fact, given and there is no evidence that Mr Kean did not fulfil his duty beyond a bare assertion. And, just by the way, I think it is important to add that the Family Home Protection Act 1976, in its initial stage, has led to a great deal of litigation, but the circumstances under which it can be invoked and how it can be invoked are now settled. There is nothing here which indicates to me that anything in relation to the invocation of the Family Home Protection Act 1976 would have assisted in any way. I am not put completely into the facts as to what was happening, but certainly this was a family home, namely Portnahully, at one stage, but may have gone from that into a situation of being used as a commercial property. Equitable claim arising from undervalue purchase 17. Leaving that aside, what matters is that legal advice was available, and even if that were not the case that clause is for the benefit of the lender, and it is up to the borrower to make use of the availability of legal advice, which, in terms of the Family Home Protection Act 1976, is simple and straightforward and would take no more than a couple of minutes to convey. Another point then is raised consequent on the contract, which is one of equity. If I may summarise the argument as follows, it is this: there was about €600,000 borrowed, which obviously has grown to a much larger amount now, and I do not know how much Everyday Finance purchased that from AIB or EBS, but it is said that in the event that a finance company buys a loan from another finance company as a considerable undervalue, that the court should intervene to ensure that whatever value that purchasing finance company gets from the loan is a fair and equitable amount. 18. There is, however, no authority to back up that proposition. There is no maxim of equity which I can see as being applicable. I think the argument made was inventive and very well-put, but it is completely devoid of any authority. It also goes against the common marketplace perception of these loans that there came a point where these loans were such that the property as security, in value, in many cases, had dropped to a quarter of when it was agricultural land being used for 7 development. I had seen cases sitting in the Commercial Court over 6 years where the property had gone to 1/30 of the original price on which the loan was raised, and factoring companies or finance companies come in and buy a loan from distressed banks. Banks get a certain amount of money for them, and then perhaps the factoring company or the loan company, here as in Everyday Finance, wait until such time as property prices have improved or planning conditions have improved, and then seek to recover their funds. That is the way the world works. There is nothing wrong with it. Courts, by a matter of tradition in contract, never inquire into the adequacy of consideration, and there is nothing here to suggest that there has been an unjust enrichment. Rather, the only thing that is suggested here is that the money was actually paid and has not been paid back. Improper reliance on contribution principles 19. The last point on which an injunction is sought is that some wrong, of a very vague kind, has been alleged against the solicitor, Gerald Kean. This is put on the basis of contribution, that somehow he would make a contribution and pay back the loan. That legal principle, I do not believe applies. Where there is joint and several liability by two or three parties in relation to a loan, and one of them is proceeded against by a bank and pays the loan, then that party is entitled to contribution in terms of equitable amounts, one half or 1/3 if it is two or if it is three, respectively, from the other parties. That does not apply here. If anything, it seems that the plaintiff, Dolores Corcoran, feels that she has some kind of a case in contract and negligence in interference with contractual relations, in defamation, whatever – it is all vague – against Gerald Kean. The fact that this case, that is to say the underlying possession order, which is at page 336 in respect of one of the properties or the receivership, goes ahead, in no way stops her from suing Mr Kean if she feels she has a sufficiently strong case. But, no kind of case emerges on this application. Summary 20. In summary, going back to where we were, based on the judgment in Hoey, nothing has been demonstrated, notwithstanding the strong advocacy involved, as pointing to what might be regarded as a fair case to be tried, one which, on a reasonable basis, is more likely to win than to lose which has, in the event that it is backed up by discovery, the prospect that more may come to light whereby the strength of the case may be increased. Rather, it seems to me, everything that I see in relation to the case, and the more that I know, the case becomes weaker and weaker. I have already indicated that damages would not be an adequate remedy, which is the real property point, but following on the Supreme Court's decision Merck Sharp & Dohme, it is made clear that what is involved in injunctions is preserving the status quo pending a full trial so that justice may be done and that the relevant tests, namely, damage is not an adequate remedy, fair case to be tried, balance of convenience, are aspects of the court considering the overall nature of the case and deciding whether, in those circumstances, in the interests of justice, the situation ought to be preserved by issuing an injunction. Every court in these circumstances has sympathy for people who borrow money and who enter into guarantees, but people are free to do that or not, as they wish. This clearly happened. Would it be the case that I would be allowed to somehow grant an injunction on the basis that perhaps money might be recoverable from Mr Kean? No is the answer to that. That is farfetched, given that everything that is alleged to have happened here was in 2005 and we are now 21 years later, and Statutes of Limitations are of considerable importance. Result 21. Overall, the result is that I refuse the application for the introductory injunction. I will make no order for costs with regards to EBS, represented by Mr Murphy. As regards the finance 8 company Everyday Finance, I do not have any option but to award costs in relation to this motion in their favour. There was an interlocutory application, and it failed, and I can see no basis whatsoever for reserving costs to the trial of the action. I do not think that the trial of the action is a realistic possibility, and even if it were, I would make exactly the same decision; so costs go with the event.