Gaffney and Anor v Gaffney and Anor

THE HIGH COURT [2026] IEHC 148 Record No 2016/ 1020S ALAN GAFFNEY and DEREK GAFFNEY PLAINTIFFS AND PHILIP GAFFNEY and TERESA GAFFNEY DEFENDANTS THE HIGH COURT Record No 2018/ 3592P ALAN GAFFNEY and DEREK GAFFNEY PLAINTIFFS AND PHILIP GAFFNEY and TERESA GAFFNEY DEFENDANTS JUDGMENT of Ms Justice Egan delivered on the 26 day of February 2026 Introduction 1. Phillip Gaffney (“Mr Gaffney”), the first named defendant, brings four motions before the court, all of which arise from an oral loan agreement (“the loan agreement) which has already been the subject of considerable litigation. Factual Background 2. Mr Gaffney was involved in the production of various Irish themed souvenirs. In 2015, he obtained a lucrative order from the Quality Value Choice Corporation (“QVC”). Mr Gaffney was unable to secure the necessary funding for the project from the banks in either Ireland or the United States. In or about October 2015, the loan agreement was reached wherein funding was advanced by his brothers – Alan Gaffney and Derek Gaffney (“the plaintiffs”) in the total amount of $372,043.70. Unfortunately, in February 2016, QVC cancelled the order. 3. Arising out of the foregoing, High Court proceedings were issued by the plaintiffs in 2016 (2016/1020S) , seeking the recovery of the sum of $372,043.70 which they alleged they loaned to Mr Gaffney on a short-term basis (“the 2016 proceedings”). In 2017, Mr Gaffney issued proceedings (2017/3234P) against Alan Gaffney and his wife, Nicole Gaffney, for breach of agreement, in which he alleged that they had failed to advance the agreed upon $400,000 as an investment in his business (“the 2017 proceedings”). Both sets of proceedings were heard together before Barr J over the course of four days. Procedural History The 2016 and 2017 proceedings Gaffney v. Gaffney [2022] IEHC 251 4. In a judgment dated 29th April 2022, Barr J determined that the money provided by the plaintiffs, was a short-term loan to fulfil the QVC order, not a long-term investment. He therefore struck out the 2017 proceedings. 5. Barr J further found that the parties to the loan agreement were the plaintiffs on the one hand and Mr Gaffney on the other. Contrary to the case advanced by the plaintiffs, Ms Teresa Gaffney (“Ms Gaffney”) was not a party to any loan agreement. 6. In the 2016 proceedings, Barr J therefore ordered that Alan Gaffney was entitled to judgment against Mr Gaffney in the sum of $272,043.70 and that Derek Gaffney was entitled to judgment against Mr Gaffney in the sum of $100,000. As both actions were heard together, the court awarded the plaintiffs their costs for 2.5 days of the four-day hearing, which the judge deemed were attributable to the 2016 action. Appeal to the Court of Appeal Court of Appeal Record No 2022/160 7. The plaintiffs appealed Barr J’s finding in the 2016 proceedings that Ms Gaffney was not a party to the loan agreement. In an ex-tempore judgment delivered on 25th May 2023, Binchy J (Whelan and Allen JJ concurring) found “active participation by [Ms]Gaffney in the business”. Thus, it was held that Ms Gaffney was a party to the loan agreement. The Court of Appeal varied the order to include judgment as against Ms Gaffney. 8. The Court of Appeal did not place a stay on the entry and execution of its order made on 25th May 2023. Court of Appeal Record No 2022/161 9. Alan Gaffney and Nicole Gaffney appealed against the costs order made by the High Court in the 2017 proceedings, which it will be recalled were struck out by Barr J. They claimed that they had therefore been entirely successful in both proceedings but only recovered costs for 2.5 days of the four-day hearing. The Court of Appeal held that Alan Gaffney and Nicole Gaffney were entitled to their full costs of the 2017 proceedings. Court of Appeal Record No 2022/162 10. Mr Gaffney also appealed against the decision of Barr J granting judgment against him in the 2016 proceedings. On the morning of the hearing, there was no appearance on behalf of Mr. Gaffney. The Court of Appeal therefore dismissed this aspect of the appeal for want of prosecution, in circumstances whereby they were satisfied that Mr Gaffney had been adequately notified of the hearing date. Application for Leave to Appeal to the Supreme Court 11. On 30th April 2024, the Supreme Court (Charleton, Woulfe and Collins JJ), refused Mr Gaffney leave to appeal in respect of (a) the finding in the 2016 proceedings that Ms Gaffney was a party to the loan agreement ([2024] IESCDET 52) and (b) the Court of Appeal’s refusal to hear Mr Gaffney’s appeal against the High Court judgment ([2024] IESCDET 50). On the same day, the same panel refused Mr Gaffney leave to appeal the Court of Appeal’s decision in the 2017 proceedings, in which it was ordered that he would have to pay the defendants’ costs ([2024] IESCDET 51). 12. Mr Gaffney later made an application to the Supreme Court pursuant Practice Direction SC17 to vary or rescind its final order. In a ruling dated 7th February 2025, The Court found that Mr Gaffney had failed to meet the exacting standard required and the application to reopen the judgment was accordingly refused. Court of Appeal Record Nos 2025/167, 2022/162 and 2025/195 13. It appears that on 24th June 2025 and 18th July 2025 Mr Gaffney filed further motions to re-agitate the above matters before the Court of Appeal by way of various motions to re-enter his appeal. These motions were unsuccessful and were stuck out by the Court of Appeal on 10th November 2025 . The Judgment Mortgage Proceedings before the Circuit Court and on appeal to the High Court 14. Mr and Ms Gaffney (“the Gaffneys”) are the registered owners of a property situated in Naul, Duleek, County Meath, which contains the family home (“the property”). The judgments of the High Court and Court of Appeal have been registered as a judgment mortgage against the Gaffney’s interests in the property. 15. By Civil Bill for Well Charging Relief issued on 22nd January 2024, the plaintiffs sought to enforce this security. The Circuit Court (Record No. 2024/00023) granted the reliefs sought and declared the judgment mortgage well charged against the Gaffneys interests at the property. The Circuit Court did not at that juncture grant the two further reliefs sought (an order taking account of incumbrances affecting the land and orders providing for the sale of the property and the application of the proceeds of sale in discharge of the defendants’ debts). 16. On 1st August 2024, the Gaffneys appealed the orders of the Circuit Court. Several ancillary applications were brought by Mr Gaffney and one application was brought by the plaintiffs. The appeal against the order of the Circuit Court was heard by way of a de novo hearing. 17. On foot of his detailed written judgment ([2025] IEHC 460) Bradley J made an order on 5th November 2025 ([2025] IEHC 602) declaring that the plaintiffs’ judgment mortgage stands well charged against the Gaffney’s interests in their property. He granted further reliefs including an order taking account of other incumbrances affecting the property and the making of enquiries as to the respective priorities of any such incumbrances pursuant to sections 31 and 117 (2)(a) of the Land and Conveyancing Reform Act 2009. He ordered that in the event that the Gaffney’s failed to discharge the judgment debt within six months of the date of the order, the Registrar of the County of Meath should effect the sale of the property and the distribution of the proceeds of sale in satisfaction of the judgment mortgage. The 2018 proceedings 18. Separately, the plaintiffs instituted plenary proceedings seeking a declaration that the loan advanced to the Gaffneys was secured by way of an equitable mortgage over the property. A lis pendens was lodged on foot of these proceedings on 25th April 2018. 19. Ultimately, these proceedings were not proceeded with and fell into dormancy. Reliefs sought by Mr Gaffney 20. Mr Gaffney filed four notices of motion in the common law motions list 1, which fell to heard by me on 17th November 2025 and 1st December 2025. 21. Mr Gaffney states that the issues which fall to be considered by the court in his current applications are: “narrow and strictly legal focusing exclusively on: whether the 2018 lis pendens was lawfully registered; whether the judgment mortgage contradicts the High Court judgment of Barr J; whether enforcement proceedings relying on the lis pendens and judgment mortgage can stand; whether the 2018 proceedings and duplicate filings constitute an abuse of process.” 22. The issues raised by Mr Gaffney are best categorised as follows: Further attempt to re-visit the 2016 proceedings 23. Mr Gaffney seeks: a) An order relisting his motion to dismiss the 2016 proceedings for hearing before the High Court, the said motion having never been heard or determined. b) A declaration that no valid certificate of readiness was ever lodged or signed by the Gaffneys in the 2016 proceedings and that any such certificate appearing on the court file is invalid. c) A declaration that no valid trial date in the 2016 proceedings was ever listed or notified to either of the Gaffneys. d) A declaration that the 2016 proceedings were without jurisdiction; the affidavits of the plaintiffs were sworn outside the State without Irish Consular authentication or apostille, contrary to Order 40, Rule 19 RSC and the Statutory Declarations Act 1938. e) A declaration that any purported trial or order made in the 2016 proceedings in the absence of proper notice, service, or jurisdiction is void ab initio. f) A declaration that all orders and judgments arising from or dependent upon the 2016 proceedings, including but not limited to any order made in the High Court, the Court of Appeal, the Supreme Court, and the Circuit Court enforcement record, are void ab initio, having been founded upon defective proceedings and want of jurisdiction, and that such orders should be set aside ex debito justitiae. Mr Gaffney’s submissions 24. Mr Gaffney submits that he brought a motion to strike out the 2016 proceedings which was never heard or determined. He urges this court to re-enter it and to determine it in his favour. 25. Mr Gaffney also makes a range of arguments in relation to (a) the certificate of readiness, (b) notification of trial date, (c) the court not having jurisdiction and (d) defective affidavits. The plaintiffs’ submissions 26. The plaintiffs inform the court that Mr Gaffney’s motion to dismiss the 2016 proceedings (as having no prospect of success) was effectively rolled into the plenary trial of those proceedings which was ultimately heard by Barr J and determined in favour of the plaintiffs. 27. The plaintiffs submit that arguments concerning (a) the certificate of readiness (b) notification of trial date (c) the court not having jurisdiction and (d) defective affidavits, were all argued before the Court of Appeal on 10th November 2025 and were summarily rejected. Mr Gaffney may not re-agitate these matters herein. 28. The plaintiffs submit that the High Court does not have jurisdiction to hear any application in respect of the 2016 proceedings as the Court is functus officio. In this respect, the plaintiffs rely on the following passage from Delany and McGrath on Civil Procedure (5th ed, 2023) “…after a final order has been made and perfected, the trial judge is functus officio and has no jurisdiction to set aside or vary that order…” In oral submissions counsel for the plaintiff stated that this logic applied with greater force in the present case. This is because the application to vary is made to a different court and not to the court which had granted the relevant order in the first place. Challenge to Judgment mortgage 29. Mr Gaffney also seeks: g. An order vacating the judgment mortgage registered on the grounds that the underlying High Court orders in the 2016 and 2017 proceedings are subject to a stay pending appeal. h. In the alternative, an order staying the enforcement of the said judgment mortgage pending the outcome of appeals currently before the Court of Appeal in Record Nos. 2022/162 and 2025/167. i. An order directing Tailte Éireann to cancel the registration of the said judgment mortgage upon service of this order. Mr Gaffney’s submissions 30. Mr Gaffney submits that the lis pendens was invalid and that, as it was the legal basis for the subsequent judgment mortgage, the latter was also invalid and must be set aside. 31. Separately, Mr Gaffney maintains that a judgment mortgage is an execution device only and that it cannot create new proprietary rights or contradict the judgment on which it is based. 32. Mr Gaffney asserts that Barr J determined that the loan agreement did not create proprietary rights in favour of the plaintiffs. He relies upon the judgment of Barr J in which it was stated at paragraph 70: “However, by way of obiter dicta, the court would have difficulty holding that the statements made by Philip Gaffney in October 2015, to the effect that he would be prepared to provide whatever security would normally be required by a lending bank in Ireland, would be sufficient to create in law, or in equity, any charge or security over his property. In addition, the fact that there is a family home on the lands, raises the question as to compliance with the provisions of the Family Home Protection Act 1976, as amended.” 33. In the alternative, Mr Gaffney argues that the well charging order made in the Circuit Court was grounded entirely upon the existence of a void lis pendens which means that the judgment mortgage and well charging order have no lawful foundation. 34. Finally, Mr Gaffney, in reliance upon section 3 of the Family Home Protection Act 1976, argues that any purported incumbrance on the property (a family home) required the prior written consent, properly witnessed, of his wife. In circumstances whereby the consent was not provided he states that the purported charge is void. Plaintiffs’ submissions 35. In relation to the assertion that the judgment mortgage should be vacated as the orders grounding it are subject to a stay pending appeal, the plaintiffs submit that the this is quite clearly nonsense as there is no such stay and the 2016 proceedings have concluded. 36. The plaintiffs submit that the lis pendens was registered in the 2018 proceedings and not registered in the 2016 proceedings, nor was it connected with those proceedings. It can therefore have no impact on the judgment mortgage. 37. They also argue that Mr Gaffney has already brought essentially the same argument in the judgment mortgage proceedings and that it was rejected by Bradley J as being incorrect. Challenge to lis pendens 2018 proceedings 38. Mr Gaffney also seeks: j) An order removing or vacating the lis pendens registered by the plaintiffs on the property in the 2018 proceedings on the grounds that it was filed contrary to law and procedure, in particular due to the absence of any claim to an interest in land in the originating summons, and the failure to obtain leave of the Court as required. k) An order vacating and removing the lis pendens registered on the property and/or in connection with the 2016 proceedings, the underlying action being void and without jurisdiction. Mr Gaffney’s submissions 39. Mr Gaffney argues that the lis pendens is void ab initio pursuant to section 121 of the Land and Conveyancing Reform Act 2009, as it contained no claim to land and it was never a pending proceeding within the meaning of the Act, as it laid dormant from the moment of filing. 40. Mr Gaffney further argues that the plaintiffs have brought numerous proceedings under the same cause of action (to include the 2016 proceedings, the 2018 proceedings and the Well Charging Relief proceedings) which amounts to an abuse of the process, contrary to the rule in Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313. Plaintiffs’ submissions 41. The plaintiffs submit that the 2018 proceedings clearly sought proprietary relief and that the lis pendens was properly registered. 42. Notwithstanding this, the 2018 proceedings have been rendered moot by the orders made by Bradley J. Therefore, no purpose would be served by progressing the 2018 proceedings to trial. The plaintiffs therefore seek an order striking out the 2018 proceedings with no order as to costs, which will lead to the vacating of the lis pendens. Challenges to costs awards of the Court of Appeal 43. Mr Gaffney also appeals the various costs awards of the Court of Appeal in the 2016 and 2017 proceedings described above. Mr Gaffney indicated that he did not wish to proceed with this motion at the hearing date on 17th November 2025, but that he wished to stay this motion until after determination of his other two motions. 44. The plaintiffs suggest that the costs motion of 23 July 2025 should be struck out in the circumstances. They also argue that, in any event, the High Court can not interfere with costs orders which were made (or upheld) by the Court of Appeal. Decision Further attempt to re-visit the 2016 proceedings 45. Any issues which could possibly have arisen in the context of Mr Gaffney’s motion to dismiss the 2016 proceedings (as having no prospect of success) or his arguments concerning (a) the certificate of readiness (b) notification of trial date (c) the court not having jurisdiction and (d) defective affidavits have been subsumed into and determined by the judgments of Barr J and the Court of Appeal in the 2016 proceedings (and, in so far as relevant, the 2017 proceedings) which have been finally and conclusively determined in favour of the plaintiffs. 46. I further find that, to the extent that Mr Gaffney now seeks to raise any additional issues or arguments in relation to the loan agreements or the course of the 2016 proceedings, these cannot be pursued either. This is because the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, essentially requires a litigant to bring all claims against a party within one action. 47. As noted by Simons J in Carty & Ors v Harte & Anor [2023] IEHC 296: “The term res judicata is often used as an umbrella term, embracing a number of related principles all of which seek to advance the public interest in the finality of litigation…. There is a third species of res judicata, whereby a party will, generally, be precluded from litigating an issue in a second set of proceedings if that party should have – but failed – to raise the issue in an earlier set of proceedings. This principle is described as the rule in Henderson v. Henderson, but recent case law confirms that it too is grounded in the principle of res judicata…” 48. I am satisfied that the issues raised by Mr Gaffney in his present motions are clearly res judicata and cannot be relitigated in these proceedings or indeed at all. To use the language of Barr J in Rippington v Loomes [2024] IEHC 716, the present motions are “the very mischief that the principle of res judicata and the rule in Henderson v Henderson are designed to avoid; namely an abuse of court process”. Challenge to the Judgment mortgage 49. Mr Gaffney’s notice of motion contends that the judgment mortgage should be vacated as the orders grounding it in the 2016 proceedings are subject to a stay pending appeal. This is demonstrably incorrect. Any and all appeals of the 2016 proceedings have been fully and finally concluded and no stay is in place. 50. Although Mr Gaffney seeks to link the judgment mortgage with the 2018 proceedings and with the lis pendens registered in connection with those proceedings, the two are entirely separate. The judgment mortgage emanates from the judgment granted in the plaintiffs’ favour in the 2016 proceedings and not from the claims advanced in the 2018 proceedings, still less from the lis pendens registered by the plaintiffs in those proceedings. The judgment mortgage was merely the mechanism deployed by the plaintiffs to secure the enforcement of the ultimate judgment of the Court of Appeal in the 2016 proceedings. Even if the 2018 proceedings were, as Mr Gaffney contends, somehow invalid, this could not impact Bradley J’s finding that the judgment mortgage was well charged on the property. 51. I further find that, under the rule in Henderson v Henderson, any further arguments in relation to the 2018 proceedings, the lis pendens or the Family Home Protection Act 1976 either were, or ought to have been, raised before Bradley J. Such issues may not now be raised before this court. 52. Mr Gaffney is correct in stating that a judgment mortgage is an execution device only and cannot create new proprietary rights. He also correctly observes that Barr J stated obiter dicta, that the loan agreement itself did not create proprietary rights in favour of the plaintiffs. It may even be that, applying the logic of Barr J, the plaintiffs’ claim to an equitable charge in the 2018 proceedings may not have succeeded. However, none of this could impact the validity of the judgment mortgage. In the 2018 proceedings the plaintiffs claimed that in entering into the loan agreement, the parties intended to create a security, but failed to complete the legal formalities, giving rise to an equitable mortgage. Irrespective of the rights and wrongs of this claim to an equitable mortgage, the plaintiffs were also fully entitled to seek a judgment mortgage, which is a court- ordered charge placed on the property on foot of the court judgment in the 2016 proceedings. Challenge to 2018 proceedings 53. It is not necessary to comment further on the issues raised in the 2018 proceedings or to the issues raised concerning the claim to an equitable mortgage or the validity of the lis pendens registered in those proceedings. Both parties are in agreement that the 2018 proceedings and the lis pendens should be struck out-albeit for different reasons. 54. I accept the plaintiffs’ argument that the 2018 proceedings have been rendered moot by the well charging order and the other consequential orders made by Bradley J. 55. I will therefore grant an order striking out the 2018 proceedings with no order as to costs, which will lead to the vacating of the lis pendens. Challenges to costs awards of Court of Appeal 56. There is no conceivable basis upon which this court could or should interfere with costs awards made by the Court of Appeal. 57. It follows that I must dismiss all of the reliefs sought by Mr Gaffney.