Rogers and Anor v Allied Irish Banks PLC and Ors

Philip Rodger THE HIGH COURT [2026] IEHC 213 [Record No. 2020/1767P] BETWEEN PHILIP ROGERS AND SINÉAD ROGERS PLAINTIFFS AND ALLIED IRISH BANKS PLC, EVERYDAY FINANCE DAC AND LUKE CHARLETON DEFENDANTS JUDGMENT of Mr Justice Jordan delivered on the 9th. day of April 2026. 1. The Plenary Summons in these proceedings issued on 4 March 2020. The plaintiffs are husband and wife and they reside at Mill Road, Drumlish, County Longford. The first named plaintiff is a construction worker and the second named plaintiff is a pharmacy assistant. 2. The proceedings relate to property owned by the plaintiffs at Drumlish in County Longford. There are four folios registered in the name of the first named plaintiff and the remaining three are registered in the names of both plaintiffs. Part of the property is farmland which is currently rented out. The first named plaintiff says that the farmlands have been in his family continuously for seven generations. Although the lands are currently rented out the first named plaintiff says that it has always been 2 his intention to transfer the lands to his son Jim who would then be the eighth generation of the Rogers family to have farmed the lands. 3. These proceedings, and related proceedings, have had a chequered and protracted history. This is the second application by the plaintiffs for an interlocutory injunction. They previously applied, by way of a Motion dated 9 July 2021 returnable to 27 July 2021, for an interlocutory injunction restraining the second and third named defendants [ referred to in places below as “the defendants”] from selling four of the seven folios – i.e. the farmlands. That motion was heard over 2 days in May 2022. 4. Judgment on that application was delivered in January 2024. Dignam J refused to grant the reliefs sought in respect of three of the folios. He accepted an undertaking from the second and third named defendants through their counsel not to sell the remaining folio pending the rectification of the register or further order of the court. In that regard, the register was subsequently amended and this, following the wording of the court order, meant that the second and third named defendants were released from the undertaking. 5. At the core of the plaintiffs’ case when the proceedings were instituted and when the statement of claim was delivered on 9 April 2021 was a challenge to the validity of personal guarantees. Essentially, the plaintiffs argued that the guarantees on foot of which the receiver was appointed were void, invalid, of no legal effect and unenforceable. They sought declaratory relief to the effect that the appointment of the receiver was void and of no effect – and ancillary relief. 6. In defending the application for the interlocutory injunction the second and third named defendants pointed, inter alia, to significant personal liabilities which the plaintiffs had with them. At this point the challenge to the guarantees was relegated by the plaintiffs - and their related challenge to the receiver’s powers and the validity of his appointment morphed into something different. 3 7. As mentioned, the plenary proceedings relate to the seven separate folios but the application for the interlocutory injunction arose by reason of, and related to, a proposed sale by Mr Charlton of four of the seven folios – the farmlands. 8. The detailed judgment of Dignam J speaks for itself and it is not necessary to repeat it. 9. Of note is the following; – (a) On the earlier application the plaintiffs denied that they had a personal liability on foot of a facility letter of 9 March 2010 (which is a key document). (b) A company, Terracotta Construction Ltd, also borrowed monies from the first named defendant and these borrowings were secured over separate lands. The plaintiffs are directors and shareholders in this company [ i.e. it is “their company”]. (c) It is perfectly clear that the plaintiffs borrowed money from the first named defendant - and the loans were secured by charges over various folios which are the subject of the plenary proceedings. (d) By a global deed of transfer dated 2 August 2018, amended and restated on 2 October 2018, the plaintiffs’ loans, AIB's security over the lands, and the plaintiffs’ obligations under the guarantees were transferred to Everyday. Everyday’s ownership of the charge over the relevant four folios was registered on the folios on 20 December 2018 although there had to be the rectification referred to above in respect of one of the registrations. 10. As pointed out in his judgment by Dignam J the plaintiffs sought to expand on the case pleaded when the application for an interlocutory injunction was before him. As pointed out by him it was undoubtably the case that the plaintiffs could have pleaded some of the additional points sought to be relied upon but did not. On this, Dignam J stated ; – “27. It seems to me that insofar as issues could have been pleaded but were not the court would be entitled to simply refuse to consider them. However, in 4 circumstances where the defendants have been able to address the substance of these points in their submissions and in a supplemental affidavit, I think it more appropriate for me to consider the points on their merits. However, the fact that the points were not pleaded, mentioned or raised directly in the exchange of affidavits, has an impact on how they should be addressed.”. 11. On this second application for an interlocutory injunction, the plaintiff's case has morphed yet again. The second motion for an interlocutory injunction was returnable to 26 August 2025 and again relates to a proposed sale of the farmlands. The motion itself is almost identical to the first motion. 12. On 16 January 2026 the plaintiffs’ solicitors delivered a draft of a proposed second amended statement of claim to the defendants’ solicitors. A motion to amend dated 27 February 2026 returnable to 16 March 2026 was then served. 13. This second motion for interlocutory relief was part heard on 13 February 2026 and the hearing was concluded on 13 March 2026. 14. On 16 March 2026 the motion for liberty to again amend the statement of claim came before the High Court. Insofar as this motion to amend is concerned it is worth noting that additional amendments were introduced between it appears the 13 February and the 13 March 2026 - over and above those notified to the defendants’ solicitors on 16 January 2026. That this was so became apparent during the second day of the hearing on 13 March 2026. 15. An order permitting the delivery of the proposed amended statement of claim (with all of the additions) was made on consent by the High Court on 16 March 2026 and the amended statement of claim was delivered. 16. This approach to pleadings is wholly unsatisfactory. The parameters of a case require to be set out in the pleadings. The court and the defendants are entitled to this. The court did consider refusing to entertain issues which were not expressly pleaded at the time of the hearing – particularly given the protracted history of the case and the fact that the statement of claim had already been amended. 5 17. It is however the position once again that the arguments advanced and the case now made on behalf of the plaintiffs have been fully ventilated by both sides over the course of a two-day hearing - which was originally scheduled as a one-day hearing. Both sides have comprehensively addressed their respective positions on all points in court – and in comprehensive written submissions. 18. Albeit with some reluctance the court has decided to deal with all of the arguments advanced. This case needs to be progressed to hearing with expedition and a failure by the court to deal with all of the arguments advanced by the plaintiffs might further delay the achievement of that objective. 19. Some additional factual background and evidence are worth setting out here ; - (a) In his affidavit sworn on 26 July 2021 in the first interlocutory injunction application Mr Charlton averred; – “If the court considers it necessary, despite the futility of the plaintiffs’ argument, to consider the balance of convenience, the defendants would respectfully suggest that this honourable Court should have regard to the significant delay on the part of the plaintiffs in prosecuting these proceedings…..” (b) In his affidavit sworn on 17 December 2021 Mr Luke Charlton at para.13 points to the fact that the plaintiffs were then guilty of significant delay ; – “13. Almost six months passed from the date of my appointment before these proceedings were instituted. Eighteen months passed before the plaintiffs issued their motion seeking interlocutory relief. Mr Rogers proffers no explanation for this delay. As is readily apparent from the plaintiffs’ replies to particulars, during this period I continued to prepare the secured properties for sale. At no stage did the plaintiffs seek an interlocutory order restraining me from carrying out my duties as receiver. They knew of my intention to sell the secured properties 6 (including farmlands) as far back as December 2019 but did nothing about it. 14. As Mr Rogers second affidavit discloses, the plaintiffs waited until the 11th hour to seek an order restraining the sale of the farmlands despite them being aware of and having not objected to my appointment or indeed my actions in preparing the properties for sale. I'm advised and therefore believe that the plaintiffs’ delay in this regard should preclude the plaintiffs from seeking an interlocutory injunction”. (c) In his reply in an affidavit sworn on 9 September 2021 Mr Rogers accepted that there was a delay and he said that this was because Counsel previously instructed in the proceedings did not draft what was required despite being repeatedly asked to do so by his solicitor – and he said he was also aggrieved at the delay. He also pointed to delay on the part of the defendants. (d) The plaintiffs accept that they have a personal liability in respect of the loan facility advanced to them on 28 August 2007 in the sum of €165,000 which is secured on 48 Mill Oaks, Drumlish, County Longford. In his affidavit sworn on 9 September of 2021 Mr Rogers acknowledged this loan and that it was secured on 48 Mill Oaks. He went on to say that he did not know the precise amount then claimed to be due and owing in respect of that loan facility and he denied that any sum other than the sum due under that loan facility was due on a personal basis – and he denied that the loan of €165,000 was secured otherwise than on 48 Mill Oaks. (e) At paragraph 16 of the same affidavit Mr Rogers said that the family home has nothing to do with Everyday or Mr Charlton as the loan and the mortgage in respect of the family home were never transferred by AIB to Everyday. He said that he was then continuing to make monthly payments to AIB in accordance with the terms of that mortgage. Although folio LD 294 is mentioned it appears that the family home is shown as plan 537 of folio LD 8585F and is entirely separate from the remainder of folio LD 8585F. 7 (f) It appears from the affidavit sworn by Mr Rogers in relation to an application to have the proceedings referred to mediation on 13 November 2021 that the sum originally claimed in summary summons against Mr and Mrs |Rogers and the Company was reduced by €648,302.66 and by an ex parte amendment to the summary summons. In addition to the amendment of the figure claimed in the summary summons it is the position that by order dated 20 May 2019 the High Court ordered that the summary summons proceedings would be amended by substituting Everyday Finance designated activity company for Allied Irish Banks plc and AIB Mortgage Bank as the plaintiff in the title of the proceedings. (g) The first application for an interlocutory injunction sought relief restraining the sale of the properties in folio LD 1200, LD 444, LD 10706 and LD 8562 – which are the properties described at para. 8 of the statement of claim. In his affidavit of 17 December 2021 Mr Charlton refers to these as the “personal folios” and he says that the personal folios are entirely separate from the Drumlish site which is held as security for the company debt only - i.e. LD 9774F relates to the Drumlish site which was pledged as security for the company debt. (h) According to Mr Rogers affidavit sworn on 18 January 2022 the farmlands which were the subject matter of the first motion for an interlocutory injunction were comprised in folios LD 1200, LD 444, LD 10706 and LD 8562 which at that time had been rented for many years on a long-term lease to a local farmer, Myles Creegan. [It appears that the lease was entered into in 2013 and, following an extension, is due to expire on 31st December 2028.] (i) He also averred that Mr Creegan had had his cattle in continuous occupation of the farmlands. (j) At para. 22 of the same affidavit Mr Rogers says that it is not disputed that Terracotta is indebted. 8 (k) In the written submissions in relation to the first injunction application which submissions are dated 22 April 2022 the plaintiffs refer to the four “farm folios”. At paragraph 40 of the written submissions dated 22 April 2022 the plaintiffs submit ; - “Furthermore, the interlocutory reliefs sought are only in respect of the four folios which make up Mr Rogers’ farmlands. The particular, profound importance of those lands to Mr Rogers has already been cited in these submissions and explained by Mr Rogers on affidavit. They are not mere commercial assets. The plaintiffs, in differentiating between the farmlands and the buy to let properties which make up the other three folios the subject of these proceedings, recognise that damages are an adequate remedy in respect of the buy to let properties, but urge that damages are not an adequate remedy in respect of the farmlands.” (l) The first amended statement of claim was delivered on 1 April 2025 pursuant to High Court order made on 24 March 2025. (m) Among the amendments was the addition of the following to paragraph 25; – “The second and third defendants, by their actions and statements interfering with the tenants of the plaintiffs’ residential properties the subject matter of these proceedings have prevented the plaintiffs from increasing their rents in line with market conditions, full particulars of which loss will be adduced prior to the trial of the action.” (n) These tenanted residential properties appear to be those described at para. 9 of the statement of claim. (o) The second motion for interlocutory relief dated 19 August 2025 seeks interlocutory relief specifically in respect of folios LD 1200, LD 444, LD 10706 and LD 8562, County Longford. 9 (p) At para. 3 of the grounding affidavit sworn by Mr Rogers on 19 August 2025 he states ; - “I make this affidavit in support of this application for interlocutory reliefs, whereby the plaintiffs seek to restrain the second and third defendants from selling, or otherwise dealing with or disposing of, certain farmlands situate in and around Drumlish, County Longford until the trial of the action. I own the farmlands in question. They are situated in the immediate vicinity of my home village of Drumlish, and they have been in my family continuously for seven generations.” (q) At para. 5 of the same affidavit Mr Rogers explains that folio LD 1200, folio LD 444 (plan 7), folio LD 10706 and folio LD 8562 consist of farmland. The total acreage involved appears to be approximately 77 acres. The same paragraph goes on to detail the lands referred to at para. 9 of the statement of claim as follows ; - “E. Lands situate at Mill Race Park, Drumlish, County Longford comprising folio LD 8585F, County Longford. This consists of three houses and approximately two acres of adjacent land. F. Lands situate at 37 Mill Oaks, Drumlish, County Longford comprising folio LD 16126F County Longford. This consists of a dwelling house. G. Lands situate at 48 Mill Oaks, Drumlish, County Longford comprising folio LD 14491F, County Longford. This consists of a dwelling house.” (r) At paras. 35 and 36 of his affidavit sworn on 19 August of 2025 Mr Rogers refers to the family’s connection with the farmlands which are in the immediate vicinity of his home village in Drumlish and have been in his family continuously for seven generations – and in circumstances where he says he wishes to leave the farmlands to his son Jim. He says that the 10 farmlands are no mere commercial asset but are a vital part of his identity and his family history. (s) In his affidavit sworn on 16 January 2026 Mr Rogers states ; - “6. I say that to the best of my knowledge information and belief the mortgage account for 48 Mill Oaks… was in personal names from the outset and was a stand-alone mortgage. Payments were made on that account until December 2013. I say that in or about 2010, 14 and 37 Mill Oaks, Drumlish, which had been owned by Terracotta Construction Ltd were transferred to your deponent and the second named plaintiff at AIB's instigation in 2010. Again to the best of my knowledge, information and belief these were paid until December 2013 when the payments then completely stopped.” (t) In his affidavit sworn on 30 January 2026 Mr Charlton states ; - “26. AIB demanded repayment of the underlying loans and under the guarantee in 2015, such that the statute did not commence running until then. I beg to refer to copies of the letters of demand upon which, pinned together and marked with the letters and number 2LC8, I have signed my name prior to the swearing hereof. 27. In the alternative, I am advised by the defendant’s solicitors that clause 10 of the AIB mortgage conditions, which form part of the charge, provide that the lender shall not exercise the powers conferred by clause 9.2 unless, relevantly, the mortgagor fails to pay any sums within three months of the due date. The powers under clause 9.2 include the power to sell the lands. I am advised that the consequence, assuming for the sake of argument that the plaintiffs are correct, and the last payment was in December 2013, is that the right to bring a claim seeking the sale of the land accrued in April 2014 (assuming, again for the sake of 11 argument, that the plaintiffs did not make any repayments in January 2014).” (u) Mr Charlton goes on to say that Everyday is not statute barred and that the charge has not been extinguished but that to protect their position, and out of an abundance of caution, Everyday and Mr Charlton have issued separate plenary proceedings seeking possession of the lands the subject matter of the proceedings, and certain other lands. (v) Mr Charlton also goes on to deal with the possession of the properties including the fact that his agents attended at the properties to assess their physical condition on 19 October 2019 and he avers to the fact that his agents carried out monthly inspections of the properties thereafter. (w) Dealing with possession of the properties Mr Charlton states ; - “30. The properties which are the subject of the application comprise open agricultural lands. When I was appointed as receiver of the properties, I took steps to take possession of the properties. Specifically : I instructed agents, K-Tech to attend at the properties to assess their physical condition and my agents attended on 19 October 2019…… I instructed my agents to carry out monthly inspections of the properties thereafter. On 29 October 2019, a solicitor acting for Myles Creegan purported that Mr Creegan held a lease over the properties from the plaintiffs. I say that no consent was given to the lease in breach of the mortgage conditions…… 12 I say that letters issued from my agents to the occupiers of the properties on 10 October 2019, 30th October 2019 and 22nd November 2019 seeking payment of the rent to be directed to the receiver ……. I instructed estate agents to place the properties on the market in June 2021 and the auctions were due to take place on 28 July 2021. I say that the plaintiffs issued the first interlocutory injunction motion on 2 July 2021 and the properties were withdrawn from sale pending the outcome of the motion. 31. I took those steps both in my capacity as receiver and as agent of Everyday (the agency agreement having been exhibited to my previous affidavit). Indeed, on the plaintiffs’ own case, the steps preparatory for sale must have been as agent of Everyday as the plaintiffs contend that I do not enjoy a power of sale.” 20. It is worth observing that the first application for an injunction and this second application concern the farmlands only. 21. The legal principles to be applied by this Court insofar as the plaintiffs’ application is concerned are well settled. They are set out in clear terms at paragraphs 18 to 21 (inclusive) of the judgment delivered on 15 January of 2024 by Dignam J. 22. As there pointed out, the threshold, in the case of a prohibitory injunction – whether there is a fair or serious or bona fide question to be tried – is a low hurdle. The authorities there cited are very clear on this point – O'Gara v Ulster Bank Ireland DAC [2019] IEHC 213 – Barniville J and Betty Martin Financial Services Limited v EBS DAC [2019] IECA 327 – Collins J. 23. As an equitable remedy the injunction remedy is flexible and the Campus Oil principles should not be applied in a “purely formalistic fashion”. 24. In his judgment Dignam J did point out that; 13 “…it is striking that the plaintiffs do not specifically address the alleged indebtedness which is secured on the properties which are the subject of this application” – para. 38. He went on to say “It was open to the plaintiff(s) to specifically deny that there was any personal indebtedness relevant to the lands the subject of this application and to set out the basis on which they say they have no liability and did not do so. There is simply no basis upon which the court could conclude that there is a fair issue to be tried in respect of such indebtedness. In those circumstances, I am not satisfied that the plaintiffs have established a fair question that the receiver was appointed on foot of the guarantees or, insofar as it is raised at all, a fair issue that the plaintiffs were not indebted to Everyday on foot of the facility of 9 March 2010 (which was secured by the mortgage of 1 March 2010). Of course this does not amount to a finding that the plaintiffs are in fact so indebted.” [Paragraphs 42 and 43]. 25. Dignam J did deal with the argument concerning the absence of evidence of a contractual power to appoint a receiver or to sell the lands at paragraph 44 of his judgment onwards. He was satisfied that the plaintiffs had not established a fair question that there was no evidence of a contractual power to appoint a receiver or that Everyday did not have such a power. Through an oversight the applicable mortgage conditions were not included when the mortgage was exhibited by Mr Charlton and an affidavit of Mr Edward Kane (the respondent’s solicitor) was delivered immediately prior to the hearing which did exhibit the applicable conditions. The plaintiffs objected to this affidavit being admitted but the parties agreed that it should be handed in and that Dignam J should deal with whether or not it could be admitted in the course of his judgment. He was satisfied that it should be admitted. 26. The point now argued in relation to the receiver’s power of sale was not argued before Dignam J and the plaintiffs say that they received the mortgage conditions very late in the day and did not have a proper opportunity to consider them. Albeit with some reluctance, the court will consider whether or not the point now raised by the plaintiffs in relation to the receiver’s power of sale raises a fair issue to be tried. 14 27. On this point, the plaintiffs say that the powers of a receiver, as defined in the terms and conditions of the mortgage dated 1 March 2010 do not include a power to market and sell the first named plaintiff's lands, by reason of s.108 of the Land and Conveyancing Law Reform Act 2009. 28. On this, the plaintiffs argue that the inclusion of the words “pursuant to s.108(3)(c) of the Act” in clause 11.2 of the mortgage limits the powers which can be delegated to the receiver by reference of s.108. The plaintiffs argue that if AIB drafted the clause so that the delegation power was not referable to s.108(3) the difficulty would not have arisen. However, the plaintiffs say that the wording is such that the delegation is circumscribed by the application of s.108(3) and the reference to “the receiver”. This s.108 argument is pleaded in the most recent amended statement of claim. 29. On the plaintiffs’ case ; - the mortgage expressly invoked s.108(3)(c) as a basis for the delegation of powers to a receiver. The subsection states that “the” receiver may exercise any delegated powers. The word “the” necessarily falls to be interpreted by reference to the rest of the section. Section 108(1) refers to “a receiver of the income of the mortgaged property” (and not to a receiver with a power of sale, a power to market the asset for sale or a power in the terms claimed by clause 11.2.(g) ). Therefore, “the” receiver is a receiver of the income of the mortgaged property only, and insofar as clause 11.2(g) purported to delegate the power to sell etc the mortgaged property to the receiver, as a matter of law it could not do so, and the purported delegation had no legal effect. While clause 11.1 attempted to exclude the applications of s.108(1),(2), (4), and (7) of the Act, s.108(3), because of the phrase, “the receiver”, cannot be interpreted without reference to s.108(1) and (2). Further, clause 11.1 also impermissibly according to the plaintiffs sought to exclude s.108(4) – which is phrased in mandatory terms and guides the exercise of powers delegated under s.108(3). 15 The plaintiffs say that pursuant to s.96(3) of the Act, the provisions relating to the powers and rights conferred by chapter 3 of the Act, “except where this part provides to the contrary, take effect subject to the terms of the mortgage”. By incorporating s.108(3), clause 11.2 necessarily incorporated s.108 (1), (2), and (4). Insofar as there is an interpretive contradiction between the implied invocation of those subsections in clause 11.2 and the attempted ouster of those subsections in clause 11.1, the contra proferentum rule requires the clauses to be interpreted in the manner most favourable to the plaintiffs. The plaintiffs say that the fair question threshold is satisfied on this issue – by reason of the use of the definite article in the first words of s.108(3). 30. The plaintiffs say that the principles of statutory interpretation governing the court's consideration of section 108 are those summarised in DPP v Brown [2018] IESC 67 – McKechnie J. Applying those principles, of particular significance is the sentence itself, the other subsections of s.108 and the fact that s.108 is the successor to s.19 of the Conveyancing Act 1881 – which contemplated nothing more than a receiver of the income of the mortgaged property. The use in s.108(3) of the definite article means that “the receiver” must be interpreted by reference to s.108(1) – which defines receiver in a manner limited to the income of the mortgaged property. The AIB mortgage general conditions – by referring to powers delegated pursuant to s.108(3) thereby limited AIB to appointing a receiver with delegated powers which could only extend as far as powers permissible to be delegated to and exercised by a receiver of the income of mortgaged property. 31. The plaintiffs say that this interpretation of s.108 gives rise to neither illogicality nor absurdity but is merely an interpretation unfavourable to Everyday - which flows from the manner in which AIB drafted the relevant general terms and conditions. Had AIB drafted the clause so that the delegation power was not referable to s. 108(3) the difficulty would not have arisen. 16 32. On this point, the defendants raise the res judicata argument. For the reasons touched on above the court does not consider this particular issue to be res judicata . The point was not argued before Dignam J. as the mortgage conditions arrived late. The court considers it appropriate to deal with the argument on this second interlocutory application – notwithstanding the fact that it would have been preferable if all arguments were canvassed before Dignam J. Likewise, the court considers it appropriate to deal with this point even though it was not a point in the original pleading before the court at the time of the injunction application – but is now pleaded in the current statement of claim which was amended on consent. Although the point was not pleaded at the time of the hearing of the application the point was argued fully by both sides. 33. The defendants also raise the rule in Henderson v Henderson and essentially on the basis that the plaintiff’s are seeking to have another bite at the cherry and are abusing the court process. Some of the arguments now raised by the plaintiffs have arisen the plaintiffs say after the earlier injunction application [ i.e. the effect of the rectification, the agency argument and the statute of limitations argument ]. On balance, the court considers that it is best that it deal with the arguments now raised by the plaintiffs as it might by an unduly harsh application of the rule to do otherwise. 34. The defendants make the point that the plaintiffs’ argument or proposition (i.e. that s.108(3) interferes with the contract - the express power agreed by, inter alia, clause 11 of the mortgage conditions) is an unsustainable proposition. The defendants argue that it cannot be the case that the Oireachtas intended s.108(3) to prevent a contractual power of sale. The contractual power they say is there and is clearly “in addition” to the statutory power – and there is no restriction or curtailment. The defendants say if there was to be any such curtailment, it would have been done expressly and not on any strained reading of the provision. 35. The defendants argue that if the plaintiffs were correct then no delegation of any kind would ever be effective as it could always be argued that by dint of the delegation the receiver became something different from a pure income receiver as defined in section 108(1). They argue that the definition of receiver in section 108 does not exclude a receiver who is both entitled to the income of the mortgaged property and has 17 other additional powers as a receiver. They say that a receiver with a mix of powers, provided that they include the power to receive the income, qualifies as a receiver within the meaning of section 108. 36. The court agrees with the defendants. As the defendants submit the point is clear from section 108(3)(c) itself, which states that “The receiver” [within the meaning of section 108(1)] “may exercise any powers delegated by the mortgagee or other person to the receiver” - thus demonstrating that a receiver with additional delegated powers still qualifies as a receiver within the meaning of section 108(1) of the 2009 Act. The court is of the view that this is the clear and plain meaning of the section. 37. Under the Mortgage the power of sale (or a power of sale ) has been delegated to the receiver, both by the plaintiffs themselves and by AIB/Everyday. 38. Even applying the low threshold which applies, the court is not persuaded that the plaintiffs argument raises a fair issue to be tried. In the court's view, it does not. 39. The court will now deal with the other arguments of the plaintiffs. 40. The plaintiffs assert that the second and third named defendants are wrongfully, and with insufficient evidence, asserting an entitlement to market and sell the first named plaintiff's lands on the basis of agency, as a fallback position in the event of the invalidation of the receivership or his lack of powers being exposed. It says that no clear power of sale exists. As part of the reply of the second and third named defendants they say that the affidavit of Luke Charlton (sworn 4 September 2025 - para.14 et seq.) addresses the position and resolves any purported doubt – i.e. he is marketing the lands as receiver and is not purporting to sell as an agent. What Mr Charleton actually states, inter alia, is “… at all material times I have acted, and continue to act, as receiver duly appointed under the mortgages. The reference to me acting as agent is not inconsistent with that role but was included to provide an additional delegation of authority from Everyday. It does not detract from, nor does it replace, my statutory and contractual powers as Receiver” [ para 18]. 18 As the second and third named defendants are clearly relying on the receiver’s power of sale the agency argument diminishes. The Agency Agreement was there, as the defendants put it, as a “tabula in naufragio” in the event that the court identified a triable issue regarding the receiver’s power of sale. Furthermore, McGirr v Everyday Finance DAC [2022] IEHC 612 is distinguishable as it was there accepted that the receiver was a rent only receiver and there was no written evidence of the appointment of the receiver as the agent of the charge holder. Roberts J did also accept in the case - “ …that a receiver can undertake work outside the receivership as agent for a charge holder notwithstanding that this may appear to conflict with the receiver’s deemed agency for the mortgagor in terms of the collection of rents qua receiver ” [para 38]. A valid pleading point is correctly made by the defendants in relation to this agency point in circumstances where the plaintiffs were on notice of it since October 2024. But leaving that to one side the court has not been persuaded that it raises a fair issue to be tried. This is particularly so when the court has found that the receiver’s power of sale argument does not raise a fair issue to be tried. 41. The court is not persuaded that the plaintiffs have established a fair issue to be tried concerning the argument that the delay in registering the charge means that the receiver has no interest/that his appointment was void ab initio – this being the argument concerning the rectification of the entry on folio LD 444. The plaintiffs say that the failure to properly register Everyday as the charge holder in respect of plan 7 of Folio LD 444 renders the appointment of Mr Charlton in respect of that folio void ab initio by operation of s.64(2) of the Registration of Title Act 1964, notwithstanding the subsequent registration on the folio. The court is not persuaded that this does raise a fair issue to be tried by reason of the authorities in point. The legal position in this regard is clear from the decision of Judge Baker in Wood v Ulster Bank [2017] IEHC 155. Judge Baker did in that decision depart from the position set out by her in Harrington v Gulland [2016]. It is important to note that the latter decision involved a situation where no application to rectify the register had been lodged so the case is 19 distinguishable on those grounds. The more recent decision of Judge Greely in Coughlin v O’Brien [2023] IEHC 35 is also clear on this point. The plaintiffs have not persuaded the court that there is a basis upon which it should depart from these decisions having regard to the decision in David Hughes v WorldPort Communications Inc [2005] IEHC 189. 42. The plaintiffs are now relying on the statute of limitations. They say that the defendants asserted entitlements to recover monies and to enforce security against the plaintiffs is statute barred and thereby extinguished, by operation of s.32(2)(a), 33, 36 and/or 38 of the Statute of Limitations 1957 and by reason of the extinguishment of the mortgagor's title to the land. 43. The court is not persuaded that the statute of limitations point raises a fair issue to be tried, for a number of reasons. 44. Firstly, this recently introduced plea is at odds with the statement of claim delivered on 9 April of 2021. At para. 21 of that statement of claim the plaintiffs pleaded that ; - “Therefore, in purporting to appoint the third named defendants as receiver in respect of the plaintiffs’ properties, and in purporting to act as receiver in respect of the plaintiffs’ properties, the second and third named defendants respectively have committed and continue to commit acts of trespass and negligence. The defendants, by their actions, have interfered and continue to interfere with the plaintiffs’ constitutional property rights in respect of the properties the subject matter of these proceedings and in so doing have caused the plaintiffs substantial financial loss and irreparable personal loss. The defendants have, inter alia, interfered with the plaintiffs’ quiet and peaceful enjoyment of their property, obstructed the plaintiffs from dealing with their property, prevented the plaintiffs from receiving rents and profits from their property and caused the plaintiffs to suffer profound mental distress and illness.” 20 45. In the prayer of the statement of claim the plaintiff's claim, inter-alia, damages for trespass and orders directing the defendants to yield up possession of the plaintiffs’ lands. 46. The plaintiffs delivered replies to particulars dated 13 July of 2021. In the course of those replies they stated; – “… It has been a source of enormous distress and worry that the second and third named defendants have sought to take control and sell the farmland….The receiver, by his servants or agents, sought to take possession of the land, posted notices on the land and communicated with the leaseholder, Mr Creegan… (reply 8B). At reply 11(a) it was stated ; - ‘…Further to the matters pleaded therein, signs were placed on the farmlands on or about 22 December 2019. Mr Peter Gray of K-Tech Security, engaged by the second and/or third named defendants or their servants or agents, visited the lands on a number of occasions, took photographs of the livestock and identified himself to the tenant of the land, Mr Creegan….’”. 47. It is, having regard to these pleadings, rather curious that the plaintiffs now seek to assert what is essentially a claim of adverse possession. 48. The court is also satisfied on the evidence that the mortgage, loans and guarantees were all repayable “on demand”. Actual letters of demand dating from 2015 are exhibited and the plaintiffs have not produced any credible evidence that there were demand letters before then. 49. The plaintiffs contend that the last payment on the borrowings in question was made by them in December 2013. Even if this is so it is the position that the defendants’ cause of action would have accrued following the expiration of three months from the date of the last payment. As a precautionary measure the defendants issued protective 21 proceedings seeking possession etc. on 23 January 2026 – which is within that three month period. 50. In short, the court is not persuaded that the statute of limitations argument raises a fair issue to be tried. 51. In the absence of any fair issue to be tried having been established by the plaintiffs it is not necessary to turn to the issue of whether or not damages is an adequate remedy, the balance of justice and other considerations. But these issues do merit consideration having regard to the history of this case. 52. The evidence before the court indicates that the “farm” which is made up of four of the seven folios has been in the first named plaintiff's family for seven generations. It is beyond dispute that family farms in Ireland generally have a value over and above their monetary value. Many farm owners consider that they are custodians of the land for their lifetimes and with a view to the farm passing on to the next generation. Against that, the plaintiffs are not farming the farm. The farm is leased out and it has been for some years now. Even so, if the court had been persuaded that there was a fair issue to be tried the “family farm” dimension would have weighed significantly in the scales in determining the balance of justice - and in particular when considering the adequacy of damages as a remedy. 53. In considering this matter the court has had regard to the affidavit of Margaret Hartigan which was sworn on 9 March 2026 on behalf of the second and third named defendants. The purpose of the affidavit was to explain to the court, in the context of the application for the interlocutory injunction before the court, the extent of the plaintiffs’ outstanding liabilities and the estimated value of the security held by Everyday. The position is that, at the conclusion of the first day of the hearing of this injunction application, the court directed Everyday to swear an affidavit with details of the sums outstanding on the loans and the estimated value of the secured assets. 54. The table at para. 4 of the affidavit sets out the current balance (excluding interest accrued since 17 December 2025) of liabilities in respect of the plaintiffs and their company Terracotta Construction Ltd. 22 55. The total sum allegedly due and owing by the plaintiffs and Terracotta Construction Ltd amounts to €1,079,022.60. 56. However, only the facility letter to the plaintiffs dated 9 March 2010 is relevant to the injunction application in these Rogers proceedings. The current balance (excluding interest accrued since 17 December 2025) on that facility letter is stated to be €214,112.66. 57. Only the facility letter dated 20 December 2011 to Terracotta Construction Ltd is relevant to the injunction application before the court in the Terracotta proceedings. The sum outstanding as of 17 December 2025 (excluding interest accrued since then) in respect of that facility letter of 20 December of 2011 is stated to be €450,138.32. 58. At para. 29 the deponent gives the estimated valuations of the seven folios referred to in these proceedings and the separate folio (LD 9774F) comprising four houses 11, 12, 54 and 55 Mill Race Park which are owned by Terracotta. 59. The total of the estimated valuations comes to €2,339,000.00. 60. It should again be noted that the plaintiffs’ family home is separate. It is in proximity to the farm but apparently “not on the farm” and not related to what was transferred to Everyday by AIB. 61. Of note also is the fact that folio LD 8585F is stated to be registered in the names of the plaintiffs at para. 9(i) of the statement of claim. However, the affidavit of Margaret Hartigan refers to it as folio LD 8585F, comprising three houses and owned by Terracotta; and with the value of €800,000 (with vacant possession, though the properties may be occupied). This averment is an error as the folio does belong to the plaintiffs and not the company. 23 62. The valuations of the more valuable properties (and excluding folio 8562, folio LD 444 and folio LD 1200) are valuation estimates with vacant possession although the properties may be occupied. 63. The court does not have evidence as to what, if any, discount ought to be applied if valuing the houses with tenants in possession. However, and for the sake of argument, the court will assume that the properties (and in particular the dwelling houses) with tenants are worth less than they would be with vacant possession. It will apply a somewhat arbitrary discount on the valuations of 20 % - which leaves the value of the portfolio described at para. 29 at approximately €1.87 m. with tenants in possession. 64. Thus, on this basis and going by the valuations procured by the receiver in respect of the various secured properties one has properties worth somewhere between €1.87 and €2.3m as security. This is security in respect of total indebtedness stated to be €1,079,022.60. 65. In his affidavit sworn on 27 February 2026 Mr Rogers details the position in relation to his undertaking as to damages as follows ; - “4. In respect of the undertaking as to damages the farmlands the subject matter of these proceedings comprise almost 80 acres. I say that overall it is worth approximately €6,000 per acre, and I undertake to this honourable Court that I should not sell or dissipate in any way the capital value of the said lands. 5. I say also that the dwelling assets owned by the plaintiffs, as set out in the statement of claim, comprise 37 Mill Oaks, 48 Mill Oaks, 48 Mill Race Park and 9 Mill Race Park. I say that those houses are valued, respectively, at approximately €280,000, €180,000, €325,000 and €325,000.” 66. The total value of these properties comes to €1.59m. These properties do not include the Terracotta property which is comprised in folio LD 9774F and which Ms Hartigan say is valued at €710,000 with vacant possession although the properties may be occupied. 24 67. The portfolio as variously described is not free from confusion. Para 29 of the Hartigan affidavit indicates that there are nine houses. The latter affidavit of Mr Rogers describes four houses owned personally which makes a portfolio of eight houses if the four Terracotta houses are added. There may be a simple explanation but there appears to be one house unaccounted for in this reckoning. It may be that the family home - which is not part of the Everyday charges - accounts for the confusion. 68. On any view however, the defendants’ position - as owners of ample security for the borrowings - is well protected in terms of asset value. 69. The court has not been advised as to whether or not the plaintiffs have other significant borrowings or liabilities although it does appear that they are paying off a mortgage on their family home. It is however a reasonable inference to draw from the undertaking as to damages proffered by the plaintiffs that their other liabilities are not large and that they are people of assets with significant equity in the properties mentioned. 70. Indeed, looking at the figures it is very difficult to comprehend how or why the parties have not managed to resolve the dispute between them in a businesslike fashion. 71. The court has also considered the fact that the plaintiffs are in receipt of rents from the properties which are the subject matter of the securities in respect of the monies which they borrowed and they have not, on their own account, made any payment since December 2013 to the defendants. The court, if exercising its equitable jurisdiction, could not disregard this fact. It would weigh heavily in the scales of justice against the plaintiffs if a fair question to be tried had been established. 72. The delay in the progressing of the proceedings by the plaintiffs, the repeated amendment of the pleadings, the raising of points not pleaded and the fact that this is the second application for an interlocutory injunction would also be weighty considerations against the plaintiffs. 73. It is true that there was delay caused by the defendants in these proceedings and for which the plaintiffs cannot be blamed. However, it is impossible to avoid concluding 25 that this case would be heard and determined by now if the plaintiffs had invested the same time and energy which they have essentially wasted on two interlocutory applications in instead pressing on with the hearing of the case. It is very apparent to the court that the plaintiffs are in no rush to get their case heard and that delay suits them. Indeed it appears to the court to be part of their litigation strategy. 74. The Plaintiff’s Solicitors letter threatening an application for injunctive relief, concerning the proposed sale of the farmlands and 55 Mill Race Park [ a company property] by public auction on 27 August 2025, is dated 31 July 2025. The reply from the defendant’s solicitors dated 14 August 2025 indicated a willingness to consider holding off on the sale of the properties subject to the following (and subject to their satisfaction that full engagement is being given on these points) ; - (i) A full schedule of tenancies, rents and copy leases on the secured properties to be furnished. (ii) Gross rent on the secured properties (less reasonable expenses) to be remitted to an account and held. These funds will be distributed once either the matters are compromised between the parties or on result of any legal proceedings (an agreement will be drafted to govern this arrangement). (iii) Access given to the receiver and receiver’s agents for inspection of the secured properties and the provision of BER Certificates for each property. This request was reasonable. It was not accepted by the plaintiffs and it appears that they simply did not engage with it but proceeded to seek an injunction. The plaintiffs response to the above request – or lack of it – was wholly unreasonable. 75. It is of note what occurred in the summary summons proceedings against Philip Rogers, Sinéad Rogers and Terracotta Construction Ltd which issued on 10 February 2016 (record number 2016/23). On 20 November 2024 those defendants brought an application to dismiss those proceedings for want of prosecution. After various adjournments the proceedings were dismissed for inordinate and inexcusable delay – the court noting no objection to the reliefs sought – in November 2025. The plaintiffs in those proceedings were ordered to pay to the defendants the costs of the motion and of the proceedings with a stay placed on the execution and enforcement of those costs 26 pending the determination of the interlocutory injunction applications in these proceedings bearing record numbers [2021] 5381P and [2020] 1767P. Those summary summons proceedings and the fact of their dismissal is not determinative of the issues in these proceedings but it is relevant background. It does leave the court wondering why summary summons proceedings between the parties concerning the money claimed to be due and owing went nowhere and ended up being struck out nearly a decade later. This is an issue which will no doubt arise for discussion at the hearing of this case and it is something which would weigh against the defendants in the scales of justice. 76. It is true that the defendants have not persuaded this Court that they will suffer any great prejudice by reason of a delayed sale – although they are entitled to say that the time for enforcing the securities to recover the money owing cannot drag on any longer. But as things currently stand there is ample security in respect of the sums claimed by the defendants. Again, this consideration would be a weight on the scales - against the defendants - if a fair question to be tried had been established. 77. Ultimately, and assuming for this discussion that a fair issue to be tried had been established by the plaintiffs [ which has not occurred ] , and with everything in the scales, a consideration of the plaintiffs behaviour and delay in these proceedings leads the court to the conclusion that they have disentitled themselves to any injunctive relief in any event. The court must look at the situation in the round. Doing so will generally allow one to see who is entitled to equitable relief – and who is not. The situation here is very clear and the court is satisfied that the plaintiffs would not be entitled to equitable relief even if they had established one or more fair issues to be tried. 78. In so far as delay is concerned it was for the plaintiffs to get their case on – and the court is satisfied that they could have done so by now if they wanted to and if they applied themselves. 79. An interlocutory injunction is just that – and it carries with it an obligation on the part of the plaintiff who applies for and receives it to move the case along to hearing. In this case the plaintiffs effectively had the benefit of an interlocutory injunction for the entire period that the application was pending and judgment was awaited on the first 27 injunction application. And now with a renewed and recast case they have had the benefit of the time since the date of service of their second motion until judgment on it – a situation which once more is equivalent to an interlocutory injunction. 80. And, even leaving aside the other periods of delay by them, the plaintiffs have not acted reasonably during the interlocutory injunction application related periods to get the case ready and listed for hearing – and they could have done so. 81. An interlocutory injunction application in cases such as this does not create some sort of time out in terms of the main event. As the recent Supreme Court decision in Kirwin makes clear 2 years is a long period of time in any walk of life. It should be no different in legal proceedings. If you apply for and/or if you are granted an interlocutory injunction [or undertakings] you must still move forward without unreasonable delay to the full hearing. 82. Unreasonable delay without more can disentitle one to equitable relief. Poor behaviour without more can disentitle one to equitable relief. The culpable delay and poor behaviour identified here on the part of the plaintiffs is such as would in the courts view disentitle the plaintiffs to equitable relief even if they had established one or more fair issues to be tried. 83. The court does intend to set a timeline to hearing and give directions in that regard. It will list the case for 10.30 a.m. on 23 April 2026 and deal then with costs and further orders/directions. The parties should liaise and endeavour to agree a timeline before then.