Remcoll 2 Ltd v Walsh & ors [2019] IEHC 942 (23 December 2019)

FRED WALSH, GORDON HUGHES, ITA REYNOLDS, BRYAN CRIBBEN, ADRIAN SMITH,

DESMOND WISLEY AND PERSONS UNKNOWN AT THE ROCK CENTRE, BALLINAMORE,

JUDGMENT of Mr Justice Max Barrett delivered on 23rd December, 2019.

1. An interim injunction was granted by the court at Remcoll’s behest on an ex parte basis

on 15 November. This judgment concerns Remcoll’s application, heard on 18 December,

for a continuing interlocutory injunction.

2. Remcoll owns a property at Ballinamore, Co Leitrim (the ‘Property’). It has been engaged

in works on the Property for the purpose of permitting the fulfilment by a related

company of a contract with the Department of Justice and Equality to provide sheltered

accommodation for 25 families seeking asylum in Ireland. When word as to the intended

occupants of the works became public, the Property was beset by a 24-hour, non-stop

protest, which had been preceded by an attempt to burn down the premises on the

Property. The protest was marred by singularly inappropriate behaviour that included,

inter alia, intimidation, bullying, vandalism, the erection of a steel mesh stockade on the

Property and efforts to contain security staff; it even escalated to the point where the

interior of premises on the Property was penetrated and wall-to-floor barricades erected

3. Remcoll believes that the named defendants occupied leadership roles in respect of the

protest. It is not disputed that each of the named defendants participated in the protest.

Nor, apart from the attempted arson which preceded the protest, has any of the

singularly inappropriate behaviour that transpired during the protest been disavowed by

the named defendants.

4. A striking effect of the protest was to prevent Remcoll’s servants/agents going about their

lawful business at the Property; in this regard the court notes that no evidence has been

tendered by the named defendants to contradict the affidavits of the architect, builder or

security guards tendered by Remcoll and to which the court turns later below.

5. The protests ceased immediately on the granting by the court of the interim injunction.

The named defendants each aver that the protests would have ended anyway without the

intervention of the court. None of the defendants aver that the protests would not re-

commence in the event that the injunctive relief is not continued.

6. It is useful to consider first the location and ownership of the Property. In this regard Mr

Collins, Remcoll’s CEO avers, inter alia, as follows (Pleadings Book 1, Tab 5):

“4. The property the subject matter of these proceedings is known as The Rock Centre

(known colloquially as ‘The Rock’) which is entirely comprised in Folio LM20931F

(the ‘Property’) at Ballinamore in the County of Leitrim. The Plaintiff is the

registered owner of the Property….The Property covers a space of just under ten

5. Access to the Property is achieved by the Ballinamore Relief Road which is not a

public road. The Ballinamore Relief Road was constructed by the original developer

under a Part 8B planning application. The relief road has not been declared a public

road under Section 11 of the Roads Act 1993.”

7. None of the just-quoted text is challenged. This is significant because when one looks at

the plenary summons, one of the claims is for damages for trespass. Arising from this,

the second injunctive relief sought in the notice of motion of 21.11.2019 is “[a]n

interlocutory injunction restraining the Defendants, their servants or agents, and any

persons acting in concert with them or with knowledge of the said injunction, from

trespassing upon or otherwise entering the Property”.

8. The court cannot but note at this juncture that a landowner with an un-impugned title to

property is typically entitled as a matter of right, unless there be good reason shown, to

an injunction to restrain trespass (Keating & Co. Ltd. v. The Jervis Shopping Centre Ltd.

[1997] 1 IR 512, at p. 518). Remcoll’s claim sounds in trespass, its title to the Property is

un-impugned and the named and other defendants are not entitled to ‘roll up’ at

Remcoll’s property and ‘camp out’ there for the period of a protest. The named

defendants, it seems to the court, appear to have lost sight of the fact that the locus of

the protest is not public property, it is private property owned by Remcoll; the defendants

have not obtained permission from Remcoll to do what has been done on the Property; on

the contrary, Remcoll does not want them on the Property.

C. Some Unchallenged Elements of Remcoll’s Complaints

9. There are manifest inconsistencies attending the explanations provided by the defendants

in relation to the various matters canvassed in the affidavit evidence. It is a feature too of

the named defendants’ affidavit evidence that where allegation of particular conduct is

denied, there is no effort by any of the defendants to aver what in fact occurred. The

court, of course, is not in a position to resolve any of these matters at this stage of the

within proceedings. Instead, it proposes to consider in this section of its judgment those

elements of the complaints that are articulated by Remcoll and which are not challenged,

and to see whether those matters of themselves warrant the continuation of the

injunctive relief previously granted by the court.

10. The first (unchallenged) matter of importance is the past erection of a seven-foot wire

fence around the Property. Mr Collins in the above-referenced affidavit, at para. 19,

avers, inter alia, that “[o]n Tuesday the 22nd October a cordon of 7 feet tall wirefencing

was erected around the rear of the Property by the protestors”. Curiously, this event is

not the subject of any comment by the named defendants; it is almost as if this, to them,

was something normal/permissible to do on somebody else’s property without permission,

which, of course, it is not.

11. The second (unchallenged) matter of importance is that the effect of the erection of the

fence was to create a narrow passageway through which security guards had to pass to

enter the buildings on the Property. In this regard the court recalls the affidavit evidence

of Mr Grennan, an operations manager with GSL Security, an entity that provides security

services to Remcoll in relation to the Property. He avers, inter alia, (Pleadings Book 1, Tab

16, para.17) that “while I was on site the protestors erected a steel mesh type fence

approx.. seven-foot-high along the back of the building three foot out from the wall and

fire exits….The effect of the fence is [was] to create a narrow passageway along which

security men and visitors must walk if they are to enter or exit the Property.”

12. The third (unchallenged) matter of importance is the effect of what the protestors did in

throwing up the fence, which was that in order to go to work security workers (incredibly)

had to climb over the fence to get in and out of their place of lawful work. Thus, Mr

Grennan avers, in the above-referenced affidavit, at para. 12, that “[t]he two security

guards climbed over a fence and gained entry to the Property. The night shift security

guard climbed out the same way. The security staff felt very intimidated and threatened

by this behaviour.”

13. The fourth (unchallenged) matter of importance is that large blocks of concrete and also

water tanks were set up at the entrances and exits to the Property. Mr Grennan, in the

above-referenced affidavit, avers, inter alia, that “[o]n 23rd October at 06:45 I received a

phone call from our security guard who was going on site to say that all entry points/exits

to the building were blocked with concrete bollards and a large water tank at the front

14. The fifth (unchallenged) matter of importance to note is that the effect of the blocking of

the entrances and the exits was in effect to contain/trap site staff in the Property. Mr

Collins in the above-referenced affidavit avers, inter alia, as follows in this regard:

“18. Large blocks of concrete and water tanks were set up in front of all the entrances to

the centre to stop any access into or egress from the premises. Members of the

security team were locked inside the centre overnight as these blockades were set

up. These events occurred over the course of the night of the 22nd to 23rd

15. It is perhaps worth noting in this regard that the said members of the security team were

being locked inside a building which somebody had sought to set ablaze only a few days

previously. Yet the defendants come to court making no comment at all about the effect

of this conduct on the individuals who were subject to same.

16. The sixth (unchallenged) matter of importance is that the locks of the doors which served

the buildings on the Property were glued shut, rendering them unusable. Mr Collins in the

above-referenced affidavit avers, inter alia, as follows in this regard:

“19. They [the protestors] also changed a lock in one of the access doors, which gave

access to a fire escape, to stop workers gaining access to the building. The front of

the building was blocked by the protestors and again access to workers was

blocked. Glue was used to seal the locks on access doors so the doors could not be

17. The seventh (unchallenged) matter of importance is that an attempt was made to nail

shut an entry/exit door. Mr Grennan in the above-referenced affidavit, at para. 17, avers,

inter alia, that “[o]n the 28th October an attempt was made to nail shut an entry/exit

door. This attempt was abandoned when interrupted by a member of security staff.”

Again, the court notes that this episode has not been disavowed by the named

18. The eighth (unchallenged) matter of importance is the profoundly serious consequence of

the interference with the doors. Mr Grennan in the above-referenced affidavit, avers, inter

alia, as follows in this regard:

“The protestors changed the lock on one exit door and it is locked permanently. They

have put glue into the lock on the front door and it now cannot be opened….As a

consequence there is now no functioning emergency exit at the Property. My men

are extremely worried because – as outlined above – there has already been one

attempt made to burn the Property to the ground.”

19. Again, the court notes that this objectionable behaviour has not been disavowed by the

20. The ninth (unchallenged) matter of importance is that the protest involved a full-time, 24-

hour, non-stop picket placed on the Property with numbers of protestors managed by

means of a so-called ‘whistle system’. Mr Collins, in the above-referenced affidavit, avers,

inter alia, as follows, in this regard:

“17. A full-time, twenty-four-hour picket was put in place at the Property on Sunday the

20th of October. The minimum number I have witnessed participating in this picket

is 20 individuals while I have witnessed as many as 45 individuals picketing the

Property. There is a notification system in place between the protestors which

allows numbers to be rapidly increased. This notification system involves the

blowing of whistles which appears to be quite effective as the area is small and

many protestors live or work near the Property. A makeshift campsite has been

established at the site. Builders attempting to gain access to the centre have been

intimidated by members of the picket line and subsequently refused entry to carry

out finishing works. 90% of all contractors hired have refused to enter the premises

due to fear of the people around the centre”.

21. The fact that this is how the protest was organised is not denied.

22. The tenth (unchallenged) matter of importance is that sight of the Private Security

Authority licences was demanded every day from the security guards working at the

Property, even though the persons working as guards did not change much. Mr Grennan,

in the above-referenced affidavit, avers, inter alia, as follows in this regard:

“20. On the morning of 30th October, I received a call at approximately 06:50

informing me that male protestors stopped security staff who had been attempting

to access the building through the channel along the fence, asking them for their

PSA (Private Security Authority) licence and taking photos of it. When the licences

had been produced protestors walked outside the fence and alongside security staff

members while security walked inside the narrow three-foot space for 200 metres

to get in. Again, the security staff have been frightened by the extraordinary

hostility shown towards them and the disregard shown for their safety by the

protestors and complain of very serious intimidation.”

23. In his third affidavit, Mr Collins avers, inter alia:

“Mr Smith states…that there was no intimidation of Joseph Grennan’s staff. The only thing

that has ever passed between protestors and security staff, according to his version

of events, was the security staff were asked to produce their ID badges. Mr Smith

states his belief that this is something security workers are obliged to do when a

member of the public asks them to. Mr Smith goes on to allege that in making such

requests the protestors wanted to make sure that these men were genuine security

staff because the protestors were afraid ‘someone’ would enter the building and

cause damage and the protestors would get the blame. I find this an astonishing

suggestion. The security workers were on the building prior to the pickets because

the situation in which the protest came to be called had generated a situation

where an attempt had been made to burn the building to the ground. There is a

rota of workers at the Property and it has been the same people on that rota since

the day the protest started. At most, there were four workers. The protestors were

familiar with their faces. They were always in security clothing, in the uniform of

GSL and these workers were there 24 hours a day: yet every day they were

regularly stopped and questioned by the protestors and they were obliged to move

through the gauntlet which had been set up for them.”

24. This is unchallenged evidence of targeted, nasty, hostile harassment of people

endeavouring to go about their lawful work.

25. The eleventh (unchallenged) matter of importance is that having engaged in all these

activities at the perimeter of the premises on the Property, the protest (remarkably)

proceeded to the erection of floor-to-ceiling barricades inside the said premises. Mr

Grennan in the above-referenced affidavit, avers in this regard:

“19. Obstacles have been placed inside the Property which prevent the use of an

escalator and block access to an entry/exit point located adjacent to the Tesco

store. These obstacles were installed on or around Monday the 28th of October….

29. On the evening of Friday 8th November another entry/exit at the top of the

escalator was blocked off by protestors with a seven-foot high fence.”

26. The twelfth (unchallenged) matter of importance is the issue of the drones that were

flown around the Property for the purpose of interfering with the ability of the security

guards to get any respite from the situation presenting. Mr Grennan, in the above-

referenced affidavit, avers, inter alia, as follows:

“18. My security staff and I have also noticed that drones controlled by the protestors

have been caused to fly around and above the Property….As such there is no

respite for the members of my staff. Even on a tea-break at the top of the building

there is always someone effectively peering at them.

28. The protestors have what could be described as a support van on site in which food

and beverages are prepared. This van is the property of Desmond Wisley….I believe

that Mr Wisley is the individual who is controlling the drones which are flown

around the building.”

27. It turns out that this last belief was correct. Yet far from apologising for this conduct, Mr

Wisley’s stance is that he did not engage in the drone-flying too often. One does not have

to imagine just how perturbing the drone-flying must have been for the workers on-site

because Mr Collins in his third affidavit speaks to this aspect of matters, averring, inter

“58. Mr Wisley suggests that I, and other deponents on behalf of the plaintiff,

exaggerated about the presence and effect of drones. He confirms that he did fly

drones around the Property, but says he checked his logbook – which he didn’t

exhibit – which apparently shows that there were only three drone flights during

the relevant period, and that the drones were in the air for thirty-two minutes in

total….The point being made (at paragraph 18 of Joseph Grennan’s affidavit [i.e.

the para.18 quoted just above]) was not that the drones were constantly there, but

that there was a constant feeling on the part of the security guards that they were

being harassed and watched, and the presence of drones fed into this. I would

hardly have thought that the point needed to be made – and yet it does not seem

to have occurred to Mr Wisley – that flying drones in a built-up area for the purpose

of peeping into windows of the upper storeys of buildings is not normal flying

activity. The only purpose of peeping through upper-storey windows at my staff

was to let them know that they were being watched, to deny them any private

moment and to make them uncomfortable in the same way as his neighbours would

be deeply uncomfortable if Mr Wisley flew his drones to the upper windows of their

homes to peep in at them.”

28. Mr Wisley makes no comment in this regard.

D. The Effects of the Protest on Workers

29. The twelve matters mentioned above are serious matters, none of which have been put in

issue by the named defendants. Any of these matters, it seems to the court, would by

itself be serious enough to engage the discretion of the court to grant the interlocutory

injunction now sought. Cumulatively they provide overwhelming evidence for the court to

grant such relief. Yet serious though the above twelve points are, they go to what was

done, rather than the effect of same on the individuals affected by what was done. There

is, in this regard, a remarkable failure by the named defendants to address those effects,

which effects are set out clearly in the affidavit evidence of (1) Mr Kershaw (a GSL staff

member), (2) Mr O’Sullivan (an architect who was engaged by Remcoll to do certain work

at the Property), (3) Mr Thorausch (a GSL staff member) and (4) Mr Maxwell (a onetime

property developer from whom the Property was acquired by Remcoll and who was later

engaged to manage Remcoll’s refurbishment project at the Property).

30. Mr Kershaw avers, inter alia, as follows (Pleadings Book 1, Tab 34):

“14. As I have stated above, I feel like an animal when arriving and leaving work due to

being forced to enter a cage to enter and exit the building. I have requested that an

alternative access point be found but the protestors have changed the lock on the

only other entry/exit point which is a fire escape. This door has also been glued

shut and silicon has been poured into the keyhole. The protestors’ actions in this

respect make me worry for my safety if anything should go badly wrong at night at

the Property in view of the fact that there has already been one attempt to set the

15. The atmosphere at the Property is very, very intimidating and it is a very

distressing work environment to have to face daily. I have attempted to calm the

situation by speaking with the more reasonable protestors and explaining that

myself and my colleagues are simply trying to do our jobs and secure the Property

and have no wish to become involved in aggressive stand-offs with the protestors. I

have asked for the harassment and intimidation to stop but it has continued

16. I feel deeply uncomfortable and unsafe at work. Emergency exits are glued shut

and various entry and exit points [are] unusable due to the actions of the

protestors. I arrive and leave work through a barrier of intimidating and aggressive

individuals. At this point, I feel that I putting my life at risk when going to work.

17. I feel as if I am going to work in a prison. It is a toxic environment and one which

is greatly distressing.”

31. Nobody ‘marks’ this affidavit in the pleadings, no security guard, for example, has sworn

an affidavit to the effect that Mr Kershaw is exaggerating or that his feelings are not a

proportionate response to the situation that he faced.

32. Mr O’Sullivan avers, inter alia, as follows (Pleadings Book 1, Tab 37):

“5. On arrival in Ballinamore, I called Frank Maxwell, who is the contractor engaged on

the Ballinamore project, and requested that he might bring me into the building and

to the site which I needed to view. Frank informed me that he could not do so as if

he was to arrive on site he would be ‘lynched by the crowd’. He informed me that it

is not safe for his building contractors on site.

6. I could hardly believe that the situation was as bad as had been described to me

and so I asked Frank how I was to gain access and I was informed that the protest

is confined to the areas outside the building and that there should not be a problem

accessing the clinic and the food-store. Nonetheless, having been informed that it

was not safe on sire for contractors I was apprehensive about accessing the

building and going about my work. However, there is an urgency attached to this

project which I am aware that the Plaintiff requires to complete as soon as possible.

I decided to complete the work which I had travelled from Cork (a journey of four

hours) to attend to.

7. I entered the building and walked into the concourse. It quickly became apparent

that goods had been removed from the existing food store and were being used to

block access off the concourse. Moreover, a 6-7 foot high mesh fence had been

installed in the concourse blocking all alternative access avenues and making it

impossible for me to access the areas which I had needed to inspect.

8. There was a man who seemed to be on patrol in front of this fence. I asked him if

he was a member of security. He informed me that he was not, and he was, in fact,

a protestor with the group outside while folding his arms and standing upright. I did

not need him to inform me verbally that access would not be provide beyond the

fence: that was already blindingly clear. For the avoidance of doubt, the situation

was simply that I wanted to do the work for which I had been hired and I was not

allowed to carry it out: there was no argument to be had.

9. At this point I formed the view that the situation was simply unsafe for me. I made

my way to Tesco and purchased some items to ensure I would not be challenged as

to what my purpose on site was. Once outside I contacted two colleagues to discuss

the matter. We were all agreed that as the situation was unsafe the only option was

to leave without having completed my work.

10. I contacted Frank Maxwell again to relay what had occurred. Frank advised that he

would contact security and have them escort me to the site. I was willing to

attempt this as I felt that this would be a sufficient level of protection. Twenty

minutes later I again spoke with Frank who informed me that security had said that

it was not safe for me to access the site. I was informed that up until my phone call

neither Frank Maxwell nor the member of security he spoke with had been aware of

the installation of the 6-7 foot high mesh fence inside the property [emphasis in

33. Mr Thorausch avers, inter alia, as follows (Pleadings Book 1, Tab 58):

“7. On the morning of Wednesday, the 23rd October, I arrived at the Property to

commence my shift at around 7 a.m. I found that the entrance to the building had

been locked. At the entry and exit points to the building large bollards had been

placed. I could not gain access to the building and my colleagues could not exit the

building….There were about ten protestors on the site at this time. I was informed

by the protestors that no member of the security staff would be allowed to enter or

exit the building. I was asked for and provided details of my PSA Licence and my

name. The number of my licence was noted down by a protestor.

8. I was informed that if the bollards preventing access to the building were removed

that additional protestors would be called and there would be trouble. I felt

unnerved as there was nothing I could do in this situation and I was being

prevented from doing my job. In the end I was forced to climb over a wall to access

the building whole my colleagues were forced to exit the building the same way.

9. I am aware that my colleagues felt extremely intimidated by this accident and I can

understand this. I am originally from…Germany and now reside permanently in

Ireland. When in Germany I received high-quality military training as an infantry

member of the German Air Force and I believe this has helped me to cope with

incidents such as these, but I can see that many of my colleagues are finding the

situation extremely difficult.

10 . I have been approached subsequently by protestors seeking details of my PSA

licence which I provide when asked to do so.

11. There is a serious fire issue at the Property due to the way in which the protestors

have blocked various access points. If there was a fire it would certainly be very

dangerous. If there was a fire then the escape routes are very limited and – as my

colleague Paul Kershaw has outlined in his Affidavit – the fire escape has been

blocked. This dangerous situation is compounded by the fact that there has in fact

been an attempt made to set the Property on fire.

12 My wife has been at the Property on two occasions to meet me briefly. On both

occasions she has been questioned by protestors as to what she is doing at the

13. The work environment at the property is certainly extremely difficult and I am

fortunate to have training to deal with similar situations which I can rely on. If it

were not for my military training I think that I would feel extremely intimidated.”

34. Mr Maxwell avers, inter alia, as follows (Pleadings Book 3, Tab 8):

“3. I am advised that assertions have been made in a number of recent Affidavits

sworn by the Defendants in this matter that no tradespeople who attended at the

property were denied access to the property and that if tradespeople did not enter

the property during the course of the protest then they made that choice out of

respect for the protest. I have also been advised that the protest has been

described to the court as silent, respectful and in the nature of a ‘family affair’. I

make this Affidavit for the purpose of addressing these assertions.

4. The work at the Rock Centre progressed well until meetings were held in

Ballinamore which culminated in a protest and picket being placed on the building,

Monday the 21st of October was the first day that the protestors began to make

work at the building difficult. On that day both I and contractors at the Rock Centre

were taunted by the protestors. Specifically Mr Desmond Wisley continuously

taunted me by shouting ‘Judas’ at me. From that day all contractors accessed the

building via the rear entrance until access was completely blocked by the

5. Also on the 21st October Fred Walsh and Ciaran Smyth arrived on site. They

walked around the building and seemed to me to be identifying entrances. The next

morning every entrance to the building, both front and rear, was blocked. From the

22nd October onwards we could no longer gain access to the building and the

tradespeople, who are all locals, were very reluctant to pass the protest and would

not do so. Some of the tradespeople were ‘allowed’ to gather their tools by the

protestors but they were warned at the same time not to work on the building.

6. A couple of days after the tradespeople were forced off the site I met with Fred

Walsh who is the chairman of the protest committee and explained my predicament

having been engaged to complete a project which is very important to my

company. I explained that we were on a contract and had incurred significant costs

and owed a lot of money to various parties incurred as part of the project. I said if

we didn’t finish the project we would not get paid and this would have a knock-on

effect on the sub-contractors almost all of whom were local people. He told me the

project was not happening and that we would not be allowed into the building to

finish the work. He then told me that if ‘them people’ move in we can all lock our

doors. I understand that by ‘them people’ he meant the unfortunate families who

were to be accommodated in the asylum centre.

7. I am also involved in a small shop at the top of the town in Ballinamore. A boycott

was placed on this shop. Several of the shop’s customers were harassed,

intimidated and warned not to go into it. It appears that this was due to my

involvement in attempting to complete the project at the Rock Centre.

8. Throughout the duration of the protest I had grave concerns for my own safety

and I would have such concerns again if my company lost the protection of the

35. It is quite something for the defendants to the within proceedings to swear that

tradespeople (who were locals) did not pass the protest out of respect for the protestors,

in circumstances where they have not furnished to the court even a single affidavit from

anyone swearing to this version of events. Mr Maxwell tells of the level of personal

intimidation and vindictiveness that has presented. None of the defendants looked for any

time to deal with any of the matters set out in the affidavit/s of any of Messrs Kershaw,

O’Sullivan, Thorausch and Maxwell concerning the effects that the protest had on them.

36. Turning to some of the principal applicable case-law, the court has been referred, in

particular, to Keating & Co. Ltd. v. The Jervis Shopping Centre Ltd [1997] 1 IR 512, Eircell

Ltd v. Bernstoff (& Others) [2000] IEHC 18, Thames Cleaning and Support Services Ltd v.

United Voices of the World [2016] EWHC 1310 and Merck Sharp & Dohme Corporation v.

Clonmel Healthcare Ltd [2019] IESC 65. The court briefly considers each of these cases

37. In the development of the Jervis Street Shopping Centre, cranes were moving through

the airspace of the lands owned by Keatings and they sought an injunction to prevent

that. Of particular interest is the following observation of Keane J., as he then was, at p.

“It is clear that a land-owner, whose title is not in issue, is prima facie entitled to an

injunction to restrain a trespass and that this is also the case where the claim is for

an interlocutory injunction only. However that principle is subject to the following

qualification explained by Balcombe LJ in the English Court of Appeal in Patel v.

W.H. Smith (Eziot) Ltd. [1987] 1 W.L.R. 853…859:-

‘However, the defendant may put in evidence to seek to establish that he has

a right to do what would otherwise be a trespass. Then the court must

consider the application of the principles set out in American Cyanamid v.

Ethicon Ltd [1975] AC 396 in relation to the grant or refusal of an

interlocutory injunction.’”

38. In the context of the within application, Remcoll’s title is not in issue and no evidence has

been tendered (because none could be tendered) to the effect that the defendants

have/had a right or entitlement to do that to which objection has been taken by Remcoll

39. This case arose from the nationwide installation of mobile phone masts at the turn of the

century. Eircell had come to an arrangement to erect a mobile phone mast on land. The

individual plaintiffs, who were part of a protest group, objected to the erection of the

mast, claiming that radiation it emanated posed a cancer risk, and engaged in a

disruptive, intimidating protest to stop Eircell proceeding as it wanted. Barr J., at p. 10-

11, observes, inter alia, as follows:

“It is not in controversy that Eircell would be entitled to the injunctive relief which they

seek pending trial of the action if they satisfy the court on two points. The first is

that as to the right of way controversy, there is sufficient evidence before the court

to establish that there is a fair issue to be tried in that regard. In the light of the

foregoing arguments, I have no doubt that Eircell has established that proposition.

The second factor which must be established by the plaintiff is that in all the

circumstances the balance of convenience favours the granting of the injunctive

relief sought. In that regard they rely on the following points:-

(i) There is presently a part of their phone network which has a poor signal. The mast

is required to remedy that deficiency. Without it Eircell is at a disadvantage with its

competitor and is suffering an on-going loss of business on that account. It is

impossible to quantify that loss and, therefore, damages do not constitute an

(ii) In determining what loss or inconvenience would be suffered by the group or

anyone else if the relief sought is granted the issue relates only to the perspective

[sic; prospective?] use of the boreen by Eircell which it is accepted will be minimal.

Accordingly, no significant relevant loss will be suffered by the defendants pending

the trial of the action.

(iii) It is proper for the court to take into account the merits of the group’s case and

their reprehensible conduct in the matter of intimidation and attempted unlawful

enforcement of alleged rights.

(iv) Conversely, it is also proper to take into account the fair and reasonable behaviour

of Eircell and its agents in this matter.

All in all, I am satisfied that the balance of convenience favours the granting of the relief

sought pending the trial of the action”.

40. Here the court is likewise presented with a protest that has been conducted in a

reprehensible manner. Notably, Barr J. in striking the balance of convenience asks himself

what damage could be caused to the protestors by the granting of the injunction sought?

Here a like question arises in respect of the defendants: what damage could be caused to

them in injuncting them from watching or besetting, or trespassing upon Remcoll’s

property? How could this result in damage to the defendants? In this regard, there is,

with respect, a complete failure on the part of the named defendants to apprehend what

is at stake in the issuing of the within application. What is being sought is a limited relief

to stop them from engaging in quite outrageous behaviour on Remcoll’s own property.

That the defendants would look to resist this is, with all respect, extraordinary, given

what they have averred to in their own affidavit evidence.

41. The decision of the English High Court in Thames Water has certain resonances with

comments made by this Court in the granting of the interim injunction, viz. that people

have a right to protest; however there are parameters within which that right is

circumscribed and when individuals step over those boundaries the courts will not hesitate

to exert their entitlement to grant reasonable injunctive relief; nobody has a right to

behave in any way s/he wants simply because s/he objects to or is offended by another’s

course of conduct. These observations, it seems to the court, are all the more pertinent

when a protest is not taking place on a street, or near or in the vicinity of a property, but

in actual occupation of another’s land and the penetration of premises thereon.

42. In Thames Property a dispute arose concerning a disorderly picket on a street outside a

shop. There are particular protections in the context of industrial disputes, with what is

presently before this Court not being an industrial dispute. Even so, the observations of

Warby J., at paras. 48-52, are of interest:

“48. I have viewed the video clips which Mr Elia wanted his addressees to view. The first

clip is introduced by a screen shot referring to the ‘Topshop 2’. The accompanying

video shows a very noisy and disorderly protest involving, at an estimate, upwards

of 40 people in a crowd occupying the whole pavement in front of a Top Shop store

during opening hours. The demonstration is clearly organised, with banners, and

drumming, shouting, whistling and clapping. Red smoke billows around. It is quite

impossible for members of the public to pass through the crowd without

encountering substantial obstruction. At least one police officer is jostled. Mr Elia is

clearly the organiser and leader of the event. He declaims at the crowd and

passers-by loudly through a megaphone. One of the ‘Topshop 2’ is present, next to

the second defendant. She might perhaps be said to be there to picket. But she

does not address anyone with the aim of discouraging them from working. Mr Elia

explains to the crowd that she has come to ‘face her oppressors and tell them to

fuck off’. Mr Elia encourages crowd members, saying: ‘Anyone who wants to

express their disgust at this company using the megaphone feel free to do so.’

49. Speech of this kind is not unlawful. Freedom of speech includes the right to

embarrass or offend. It is not necessary in a democratic society to prevent people

telling their alleged oppressors to ‘fuck off’ or expressing their disgust at the

employment practices of high street shops. It may be legitimate to do this noisily.

If the word ‘picket’ were given the broad meaning attributed to it by the claimants,

the order they seek would have the effect of prohibiting the defendants from

encouraging such behaviour ‘at Wood St’. I would not grant such an injunction,

which would go too far.

50. But such activities can tip into public disorder, harassment, intimidation, and other

interferences with the rights of others which it is necessary and proportionate to

prevent, for one of the legitimate aims identified in Articles 10(2) and 11(2). The

more they involve physical confrontation at close quarters between the protesters

and with those seeking to go about their lawful daily activities of going to work or

to the shops or places of entertainment the more likely they are to go beyond the

lawful limits of protest. Mr Elia himself has referred to ‘the right for individuals to

protest peacefully’. The conduct shown in the video clips goes beyond that limit, in

51. This is most clearly the case outside Top Shop. But the video of events at the

Barbican arts centre shows what is clearly an organised group of union staff and

‘supporters’ engaged in an organised and prepared protest, again using banners,

the chanting of slogans, banging and shouting, and again a megaphone is wielded

by Mr Elia to denounce the employer loudly to all present. This is clearly an

incursion onto private land, involving obstruction, and interference with lawful

activities. It is clearly not an event which involves passers-by lending their support

52. Mr Elia’s witness statement, served since the hearing before Garnham J, seeks to

minimise this activity or to put a gloss on it. He says the videos are condensed into

2-3 minutes, and are intended to give ‘a heightened sense of tension and drama

and use emotive music in order to create atmosphere and portray emotions’. I have

not heard Mr Elia give evidence, and there has been no cross-examination. Doing

the best I can, however, I do not think a trial court would find this evidence

convincing. Mr Powell submits that the videos “do not portray the whole protest

fully and, in that sense, accurately.” But condensed material can be accurate. Mr

Elia's evidence does not say, and I do not believe, that the videos contain a false or

misleading portrayal of the events they depict. Mr Elia's evidence sits ill with the

anger and aggression shown in the defendants' own publicity material, and smacks

of an attempt to play things down after the event, when confronted with the threat

of an injunction. Nor do I find persuasive Mr Powell's submission that these

proceedings have themselves brought about a change of heart such that the court

can conclude that there probably would be no unlawful conduct if the application

43. In the within proceedings, there is an incursion onto private land and a protest organised

on an ongoing basis and in such a way as to involve physical confrontation. There is

harassment and intimidation and the court has had furnished before it the evidence of of

Messrs Kershaw, O’Sullivan, Thorausch and Maxwell concerning the effects that the

protest had on them, which evidence has not been gainsaid. The conduct of the protest at

issue has tipped far beyond what could be described as legitimate, appropriate or

proportionate – an observation that the court can safely make even at this stage in the

proceedings, given the number of serious matters (touched upon above) that are

unchallenged in the within proceedings.

44. The named defendants (with the exception of Mr Wisley) are claimed by Remcoll to be in

a leadership role in respect of the protest. It is not in issue that all of the named

defendants have been involved in a protest where objectionable activities have taken

place and consequent upon which Remcoll seeks protection. It is a matter of concern that

the named defendants adopt the position that the application before the court is moot,

even though the defendants are not in a position to confirm that the said objectionable

activities would not start up again were the court to decline the continuation of the

injunctive relief that is now being sought. In this regard, the court notes that since the

making of the interim order, there have been breaches of that order:

In the third affidavit of Mr Collins, referenced above, he avers, inter alia, as

“12. One fact in particular convinces me that the Plaintiff needs to secure interlocutory

orders. I was speaking to Frank Maxwell, the head builder on site, on Monday 9

December, and he informed me that there had been a power outage on Sunday

night as a result of a storm. The power was down in the whole town of Ballinamore

for about an hour, around 11 pm. During that time persons unknown took down all

four of the planning application notices at the Property, and tore the injunction

orders off the wall at the main entrance and threw them down in behind the trolleys

at Tesco. I was amazed at the opportunism of this. To think that people would go

out on a stormy night, to avail of a power outage, and rip down Court orders and

planning applications. What will be clear from the foregoing is that the Property is

being watched constantly and it re-confirms to me that there is still a strongly

negative attitude in some quarters of the population towards this project, and that

the Property and the people now occupying it [seven families have moved in since

the court made the interim order], continues to need the protection of this

Honourable Court.”

Clearly a sorry state of affairs continues to present in terms of the hostility in some

quarters to the (re-) development of the Rock Centre and the arrival of, as Mr Maxwell

gently puts it in the above-quoted affidavit evidence (in the course of describing

outrageous alleged racism) “the unfortunate families…accommodated in the asylum

(2) In a supplemental affidavit of Mr Kershaw (Pleadings Book 3, Tab 4), Mr Kershaw

also avers, inter alia, to an alleged breach of the interim injunction on 30th

November 2019 when a white Ford Transit van marked entered land across the

road from the Property and remained on the land while the occupants (whom it is

averred were “remembered…as protestors at the Property”) appeared to be

engaged in taking photographs of the Property. A partial explanation has been

provided by the father of one of the named defendants in this regard, though there

are striking omissions in what is averred to, most notably (i) there is no mention of

the taking of photographs and (ii) only the actions of the father are sworn to

whereas Mr Kershaw avers to having viewed two individuals.

4. Merck Sharpe & Dohme (2019)

45. This is a judgment from last summer in which O’Donnell J., for the Supreme Court,

reviews the law concerning the granting of injunctions. In this regard, the following

observations seem especially pertinent:

“30. Lawyers, whether judges, practitioners, teachers, or students, tend to favour

propositions which can be reduced to some simple formulae that can be readily

understood, remembered, and applied. The lucidity of the admirably short

judgment in American Cyanamid has lent itself to the reduction to some apparently

simple and logical steps. Once it is established that there is a serious issue to be

tried, then it was normally no part of a court’s function when considering an

application for an interlocutory injunction to attempt to anticipate the outcome of

the case. Instead, the court should proceed to assess the balance of convenience.

As to that the governing principle related to the adequacy of damages, this involved

considering two hypotheses and balancing the outcome. If the plaintiff was refused

an injunction but succeeded at the trial would he or she be adequately

compensated by the award of damages at the trial? On the other hand, if the

defendant was restrained by injunction, but nevertheless succeeded at the trial,

would he or she be adequately compensated by the award of damages pursuant to

the undertaking for damages which the plaintiff would have been required to give

at the time of the grant of the injunction? In either case, it was also relevant to

consider if the party was capable of meeting any award of damages if made.

34. Clarke J. (as he then was) observed in Metro International S.A. v. Independent

News & Media plc [2005] IEHC 309…that this is largely a semantic issue, and I

agree that in most cases either approach would lead to the same conclusion. It is

apparent, however, that Clonmel, for example, lay some stress on the argument

that if damages are an adequate remedy for the plaintiff, then an injunction should

be refused without any further inquiry as to the balance of convenience or indeed

other factors. While I consider it as an error to treat the observations in American

Cyanamid and Campus Oil as akin to statutory rules, it is nevertheless necessary to

consider if the judgment supports this approach. At para. 408B of the report of the

judgment in American Cyanamid, the judgment stated that unless the material

available to the court at the hearing of the application for an interlocutory

injunction fails to disclose that the plaintiff has any real prospect of succeeding in

his claim for a permanent injunction at the trial, ‘the court should go on to consider

... the balance of convenience’. As to that, the ‘governing principle’ is the adequacy

of damages. This implies that the adequacy of damages is part of the balance of

convenience. However, at para. 408F Lord Diplock states:- ‘It is where there is

doubt as to the adequacy of the respective remedies in damages ... that the

question of [the] balance of convenience arises’. This suggests that adequacy of

damages comes before the balance of convenience, which on this approach would

involve a consideration of a number of unusual factors. The ambiguity in this

regard is an indicator that the decision was not intended to lay down strict

guidelines: instead, it was intended to remove the existing guideline of a

requirement of a prima facie case which had become entrenched, and reassert the

flexible nature of the remedy.

35 In my view, the preferable approach is to consider adequacy of damages as part of

the balance of convenience, or the balance of justice, as it is sometimes called.

That approach tends to reinforce the essential flexibility of the remedy. It is not

simply a question of asking whether damages are an adequate remedy. As

observed by Lord Diplock, in other than the simplest cases, it may always be the

case that there is some element of unquantifiable damage. It is not an absolute

matter: it is relative. There may be cases where both parties can be said to be

likely to suffer some irreparable harm, but in one case it may be much more

significant than the other. On the other hand, it is conceivable that while it can be

said that one party may suffer some irreparable harm if an injunction is granted or

refused, as the case may be, there are nevertheless a number of other factors to

apply that may tip the balance in favour of the opposing party. This, in my view,

reflects the reality of the approach taken by most judges when weighing up all the

factors involved.”

46. Having regard to the foregoing it seems to the court that the primary issues before the

court in adjudicating on the within application is whether there is a fair question to be

tried and where the balance of convenience or the balance of justice lies – though the

court does not see in any event that damages would be an entirely adequate remedy for

Remcoll in all the circumstances presenting and described herein.

47. A number of issues might usefully be touched/re-touched upon before the court proceeds

(1) At the hearing, counsel for the defendants identified all six named defendants as

the six individuals who had taken the lead in negotiations with the Minister and in

the ‘peaceful’ protest. That is a submission which sits most uneasily with certain of

the averments of the defendants as to not having had a leadership role.

(2) Although each of the defendants in their affidavit evidence condemn the arson done

at the Property, the fact that their condemnation is limited (and it is limited) to the

arson and not, e.g., to the erection of barriers and the containment of workers,

does seem rather to offer an insight as to how they view, e.g., the unchallenged

singularly inappropriate behaviour that occurred at the Property and which is

(3) As to the defendants’ affidavits having been filed, as was suggested by their

counsel in argument, not to answer the within application as such but to defend

their reputations, a reasonable query might be raised as to what the day’s hearing

of the interlocutory injunction was about, if this is so. This Court cannot adjudicate

one way or another at this time on the substantive dispute, in particular as to which

version of events is correct.

(4) It has not been alleged by Remcoll that the defendants are guilty of the attempted

arson at the Property; rather what is alleged in this regard is that the named

defendants have stoked an atmosphere of fear and tension in the locality of

Ballinamore, which atmosphere permitted some individual to believe that s/he could

take matters into her/his own hands in a potentially devastating manner.

(5) It has been submitted by counsel for the six named defendants that her clients

have been named as defendants because they are each a good ‘mark’ for damages.

There is no evidence in support of this submission. Moreover, the reason why they

are joined is identified in para.28 of the first affidavit of Mr Collins (quoted in

footnote 1 above), though the court must admit that it does not see why one would

proceed in any event against defendants whom one did not perceive to be a good

‘mark’ for damages.

(6) There is nothing procedurally wrong/misconceived in Remcoll having not proceeded

against the named defendants in a representative capacity. They are not so sued

because they have not been identified at random or otherwise as representative of

the protestors as a whole. They are being sued in their personal capacity because

(i) they are personally identified (with the exception of Mr Wisley) as being the

individuals with a leadership role in respect of the protest, and (ii) they are each

identified (along with Mr Wisley) as persons who were actually protesting at a

protest in the context of which the acts complained of took place.

(7) It is contended by the defendants that no reason remains for the continuation of

the interim injunction because seven families have now moved into the asylum

centre. This does not chime with events on the ground: in the course of an hour-

long black-out on 9th December all the copies of the court’s interim order were torn

down from the Property, an affront to the court, and also an indication that the

Property continues to be watched by people who are profoundly hostile to the

asylum centre. Mr Kershaw has sworn to people taking photos of the Property on

30th November and nobody has gainsaid that. So there appears to be an air of

hostility vis-à-vis the asylum centre at a time when vulnerable people are now

there and require the continuing protection of the court. In that context it seems to

the court that it would be utterly irresponsible of it to remove the protection that

has vested (thanks to the interim order) pending the trial of the action, which trial

can, in the court’s view, be brought on relatively quickly in the New Year (there is

no need for extensive discovery and the key witnesses appear already to have been

(8) As to the criticism that no notice was provided that injunctive relief was to be

sought, Mr Collins in his third affidavit (referenced above) avers, inter alia, as

“15. The inconsistency which attends the Defendants’ complaint in this regard will

not be lost on this Honourable Court. Each of the Defendants deny that they

occupied any leadership role in respect of the protest. What purpose would a

‘cease and desist’ letter have served: after all on the Defendants’ version of

events they were people without influence or leadership in respect of the

protest? Of course the Defendants were leaders, spokespeople and

influencers in respect of the protest….Leaving aside the disingenuousness of

the Defendants and the internal incoherence of the narrative to which each of

them has now sworn, the protests were aggressive, intimidating, bullying,

carried the whiff of violence, were associated with an attempted arson and

had reached the point where workers and professionals were being refused

unfettered access to the property. Given that this was the degree to which

the protests had escalated, the Plaintiff had no reason to believe that a

modest request to ‘cease and desist’ would be met with a positive response.

Moreover, the Plaintiff had a genuine concern – which the Defendants’ refusal

to condemn any of the outrageous carry-on at the Rock Centre has done

nothing to assuage – that if the protestors were tipped off that the Plaintiff

was seeking an injunctive relief that this would prompt even more extreme

behaviour up to, and including, another attempt to burn the Property.

16 [T]he reliance which the Defendants place on the absence of a ‘cease and

desist’ letter speaks to an utter inversion of the responsibilities of the

respective parties to this dispute. If it is the case that the Defendants were

about to arrange for the termination of the protest at the Property, then one

would have expected them to alert the Plaintiff to the fact that the campaign

of bullying and intimidation were about to stop: instead the application for

injunctive relief was finally necessitated because in the days beforehand the

harassment of workers was significantly escalated to the point where a third

party service provider and an architect were prevented from accessing the

Property. The truth of the matter is that the protest was not going to end

until this Honourable Court forced the Defendants to back down.”

(9) Counsel for the defendants referred to the reference in the affidavit evidence of Mr

Collins to the Property now being in a ‘spotless condition’ as proof that Remcoll has

suffered no damage. However, this is to misunderstand Mr Collins’ averment, a

point to which he avers in his third affidavit (referenced above):

“78. Five of the defendants state that they do not believe the plaintiff suffered

any damage. They refer to my comment in my second affidavit that after the

protests stopped – this Honourable Court having granted the reliefs sought

by the Plaintiff – I visited the Property and said that it was ‘spotless’….What I

meant was [that] the protestors had taken everything away, except the

portable toilet. All rubbish was gone, all the tents, vans, fuel for fire was

taken away. I did not mean that the plaintiff had not suffered any damage

over the course of the protest. I outlined the damage suffered, and the

potential damage to the plaintiff, at paragraphs 29-35 of my First Affidavit. In

circumstances where the Defendants are all legally advised I believe that

they understand the difference between the detritus of the protest being

cleared away and the Plaintiff having suffered damage.”

(10) The court has been urged not to continue the injunctive relief because if the court

does that, how could anyone ever ‘look behind’ the affidavit evidence furnished by

Remcoll in the within application? However, the answer to that complaint is not to

refuse the injunction (because that would require the court to engage in assessing

the evidential merits of the affidavit evidence before it in the absence of cross-

examination). The affidavit evidence will be ‘looked behind’ at trial and will be found

to be truthful and accurate, or not. If truthful and accurate, then the characters of

the six defendants will undeniably be tarnished. But if the affidavit evidence

furnished by Remcoll is found to be untruthful or inaccurate then the named

defendants’ characters will be restored, and they will be able to seek such remedy

as they may by reference to Remcoll’s undertaking as to damages. That is how

such matters are always resolved. The issue for now is the balance of justice. None

of the defendants have sworn as to any personal disadvantage arising in relation to

the continuation of the injunctive relief.

(11) The defendants complain that they have been wrongly blamed for the wrongdoing

done at the protest. That is a matter which will be determined at trial, but yes, for

now they have been roundly blamed by Remcoll for the organisation of (and

participation in) the protest where the actions occurred. Ultimately the evidence

before the court will be tested at trial, but that evidence is at this time, it seems to

the court, serious enough to warrant continuation of the injunctive relief.

48. What are the appropriate conclusions to be drawn by the court from all that it has

described in the preceding pages? It seems to the court that the following conclusions

might be drawn, in addition to such other conclusions as are stated elsewhere in the

(1) There is a fair issue to be tried between the parties. There are substantial

allegations of trespass, harassment and intimidation and interference with

economic rights, many of which are challenged by the named defendants but many

of which are uncontroverted.

(2) Leaving aside that the named defendants say they are not in a position of

leadership, and Remcoll states that they are, the court notes that the named

defendants have declined thus far to commit to do anything to rein in the excesses

(3) The court is concerned that on the defendants’ version of events the protest has

been suspended because, for the time being, the defendants have gained the

advantage that they have in their interactions with the executive branch of

government concerning the use of the asylum centre. This makes it more likely (not

less so) that the protests will resume if the protestors do not continue to be

satisfied regarding their interactions with the executive branch.

(4) There is an ugly and frightening lawlessness to the form which the protest took,

including an utter disregard for private property rights, which gives no comfort that,

absent court order, there will be a return to general lawfulness of action. Indeed,

there has to be some concern, given the events of 9th December, in particular the

removal and disposal of the posted court orders (an affront to the court) that even

the proposed continuation of the injunctive relief may not suffice to see a return to

a general situation of lawfulness, pending the outcome of Remcoll’s substantive

action; that said, it seems to the court that a continuation of the court’s injunction

can only assist in preserving the status quo ante (and the rule of law) in this

(5) There is no serious challenge to the evidence of Messrs Kershaw, O’Sullivan,

Thorausch and Maxwell concerning the effects that the protest had on them. By

contrast, none of the assertions by the defendants as to how the protest was

viewed by the workmen has been the subject of affidavit evidence from even one

(6) Having regard to Thames Cleaning, an organised, prepared protest which takes

place on private land, interfering with lawful activities, is an appropriate situation in

which to grant injunctive relief.

(7) Having regard to Keating, a landowner whose title is not in issue is prima facie

entitled to an injunction to restrain trespass.

(8) Where protestors engage in intimidation and their conduct is reprehensible the

court, as in Eircell, ought not to be slow in granting injunctive relief in order to

mark its disapproval of such activity.

(9) The above-quoted observations of O’Donnell J. in Merck Sharpe and Dohme, if the

court might respectfully observe, articulate the key concern of any court presented

with an application such as the within, which concern can be described in a variety

of forms, viz. where is the balance of justice?; where will the greatest justice be

done?; and on foot of which outcome is there the least risk of injustice? Here,

Remcoll owns property attended by unwanted protestors whose protest has been

attended by the most unsavoury of conduct. On the other hand, there are the

named defendants: they come to court to challenge the injunction; however, their

affidavit evidence suffers from the deficiencies/drawbacks identified in the

preceding pages. This is a situation where the balance of justice clearly lies in

favour of continuing the protection, which protection is particular only to the lands

owned by the Remcoll.

49. Having regard to the foregoing, the court will grant the interlocutory injunctive relief

sought, subject to the continued provision of an undertaking as to damages.

Result: Judgment in favour of the plaintiff

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Remcoll 2 Ltd v Walsh & ors [2019] IEHC 942 (23 December 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC942.html Cite as: [2019] IEHC 942

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