1. This judgment addresses two motions: first, the plaintiff's motion seeking to adduce new evidence; and second, the defendant's motion to strike out the plaintiff's proceedings.

2. The first application is the plaintiff's motion dated 27^th June 2024 pursuant to Order 61, rule 8 of the Rules of the Superior Courts 1986, as amended ("the RSC 1986") seeking liberty to adduce new evidence in the Affidavits of Mr. Reggie Booth sworn on 5^th July 2024, Mr. Oliver (Ollie) Carey sworn on 14^th October 2024 and Mr. Mark Hilliard sworn on 29^th October 2024.

3. In the second application, made on foot of a Notice of Motion dated 29^th October 2024, notwithstanding that it arises in the context of the defendant's appeal, the defendant seeks an Order striking out the plaintiff's proceedings against him on the basis of the rule in Henderson v Henderson or, alternatively, the doctrine of laches.

4. There is a somewhat complicated and involved history between the parties in this dispute.

Background

5. The immediate context involves an application by the plaintiff, who is the registered owner of lands and property comprised in Folio KK16922 County Kilkenny (which he purchased in or around 1996 from Roadmaster Caravans Limited), seeking inter alia mandatory injunctions directing the defendant to permanently remove all his equipment, building materials, storage units and prefabs from the plaintiff's property and business which is located at Shamrock Commercial Park, New Road, Castlecomer, County Kilkenny. This comprises showrooms, offices and three interconnecting warehouses and when viewed from the public road, there is situate to the left a large courtyard and to the right a yard together with approximately six acres of undeveloped land.

6. Put briefly, the plaintiff's application to adduce fresh evidence seeks to address a claim made by the defendant that he has acquired the yard and six acres by way of adverse possession.

7. The defendant had leased a showroom, office and toilet facilities from Roadmaster Caravans from in or around 1986.

8. When the plaintiff purchased the property in 1996, the plaintiff contends that the parties agreed that the defendant would surrender his statutory rights and a sum of money was paid to the defendant to surrender any rights which he may have had in respect of the showroom and part of Warehouse No. 2 and he was permitted to remain in the showroom for a period of time before being asked to vacate it.

9. The plaintiff further states that the defendant rented a unit in Warehouse No. 3 in or about 1999/2000 and he did so whilst paying rent until in or around 2002.

10. It is further contended that after 2002, the defendant did not pay rent and the plaintiff commenced ejectment proceedings in 2010 and successfully obtained Orders from the Circuit Court (Her Honour Judge Alice Doyle) in proceedings bearing Record No. 2010/E33, on 28^th September 2018 against the defendant (Mr. Leahy) trading as Ideal Kitchens and Bedrooms, which Order was confirmed by the High Court (Murphy J.) on 30^th April 2019 and in the judgment of the High Court (Murphy J.) in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192. The defendant, in addressing each of the applications before me, sought to revisit matters which were dealt with in the Orders of Her Honour Judge Doyle and Ms. Justice Murphy.

11. In her judgment in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 at paragraph 52, Murphy J. inter alia held that that "[t]he court's findings of fact therefore as to what transpired following the purchase of Shamrock Commercial Park, Castlecomer by Mr Doyle are as follows. Following the purchase of the property Mr Doyle paid the defendant/counterclaimant Mr. Leahy IR£17,000 for a waiver or surrender of his rights under the Landlord and Tenant (Amendment) Act 1980. In late 1999, when Mr Doyle required the use of the showroom area which Mr Leahy had rented from the previous owner, he permitted Mr Leahy to occupy another part of the premises on the same terms and conditions as he had occupied the showroom. Mr Leahy went into occupation in late 1999 or early 2000. He paid rent until in or about September/October, 2002. Despite demand, in the form of invoices and/or rental statements, he has paid no rent since that time. He remains in occupation and has asserted in correspondence a willingness to pay any rent found to be due."

12. The context of the plaintiff's application to adduce further evidence and the defendant's strike out motion arise from a different set of proceedings.

13. The Circuit Court proceedings, bearing Record No. 2019/E16, arose because when the defendant vacated the unit in July 2019, he moved the contents (primarily building materials) out of the unit to the adjacent yard outside. Ultimately, this resulted in the plaintiff issuing these proceedings against the defendant and an Order was made by His Honour Judge James McCourt on 6^th March 2020 inter alia consisting of a mandatory injunction directing the defendant to permanently remove all equipment, building materials, storage units, building scrap, prefabs and any material whatsoever belonging to him from the yard contained within Folio 16922 of the Register of County Kilkenny and from any other part of the said Folio.

14. Thereafter, the defendant issued two motions: on 9^th June 2020, the defendant issued a motion seeking a stay on the Order of His Honour Judge McCourt of 6^th March 2020. On 6^th January 2021, the defendant issued a motion to strike out the Order of His Honour Judge McCourt on of 6^th March 2020. Further, a Notice of Appeal was filed by the defendant but not progressed. The plaintiff also issued proceedings for attachment and committal against the defendant for failing to comply with the Order dated 6^th March 2020.

15. These three motions came before His Honour Judge Comerford on 6^th October 2021. When asked to state the basis upon which he was keeping the machinery in the yard area, the defendant replied that it was based on adverse possession since in or around 1997 and indicated that he had also made an application to the Land Registry (the Property Regulatory Authority or "PRA") on two occasions.

16. His Honour Judge Comerford case managed the matter and directed the parties to deliver pleadings, and, after an adjournment, the matter was heard on 6^th December 2021.

17. The gravamen of the plaintiff's application to adduce new evidence relates to the extent of the land over which the defendant is claiming adverse possession.

18. At the hearing before His Honour Judge Comerford on 6^th December 2021, for example, evidence was adduced by the plaintiff together with four witnesses who had worked with the plaintiff at various stages subsequent to his acquisition of the premises in around 1996.

19. At this hearing, the defendant gave evidence on his own behalf.

20. In response to being asked to identify the land over which the defendant was alleging adverse possession, the defendant outlined an area outside of the premises which included six acres of land.

21. The plaintiff submits, and I accept, that it was not possible to address what the defendant was stating to the court for the first time at that point. The plaintiff could not address matters prior to 1996 as he had gone into occupation in late 1996 and signed a contract in early 1997. Further, these matters arose in the context of a motion for attachment and committal which, in seeking to facilitate the parties, in effect became a case management process which resulted in expedited directions as to pleadings and the matter being set down for hearing, limited to one day, on a Monday, with judgment given on that day.

22. Earlier, for example, on 6^th October 2021, His Honour Judge Comerford had made the following Orders:

"(1) Refuse the Defendant's application to strike out the Order of Judge James McCourt made in Kilkenny Circuit Court on the 6^th March 2020.

(2) Refuse the Defendant's application to put a Stay on the Order of Judge James McCourt made in Kilkenny Circuit Court on the 6^th March 2020.

(3) Refuse the Defendant's Ex-Parte application dated the 7^th July 2021.

(4) Treat the Plaintiff's Notice of Motion for Attachment and Committal of the Defendant, dated the 12^th November 2020, as a Motion for early filing of the full action.

(5) Date fixed for full hearing in Kilkenny Circuit Court at 10.30am on 1^st November 2021. The matter will proceed regardless of whether or not a Defence has been filed.

(6) Reserve costs to the hearing."

23. Mr. Terry Doyle, solicitor for the plaintiff, in his Affidavit sworn on 25^th June 2024 states that the following witnesses gave evidence on behalf of the plaintiff at that hearing on 6^th December 2021:

"Barry Monaghan was the plaintiff's business partner and he gave evidence in relation to a meeting he had in 2006 in respect of the possible development of the lands to the right of the yard. Mr. Monaghan gave evidence in respect of the defendant's expression of interest in purchasing a site on the undeveloped lands;

Caroline King was employed by the plaintiff in the accounts department. Ms. King gave evidence in relation to the payment of rates while the defendant was a tenant in the commercial unit and in relation to the issue of insurance of the premises;

Jim Purcell was a forklift driver who had worked full time for the defendant since 2005. Mr. Purcell gave evidence in relation to the dealings he had with the defendant in respect of entering and exiting the gate to the yard amongst other matters;

Brian Bolster gave evidence that he had worked for the plaintiff since 2003 as a warehouse operative and he gave evidence in relation to his use of the yard amongst other matters."

18. Mr. Doyle described the nature of the evidence given by the defendant in the hearing before His Honour Judge Comerford as follows:

"The defendant adduced evidence that he had acquired rights in 1988 and he alleged that the plaintiff had purchased the property 'knowing that the defendant was in adverse possession of the yard'. Under cross-examination, the defendant was asked to mark the area on the map that he was claiming adverse possession over. [1]...

... The defendant stated in evidence that he had dispossessed the plaintiff of both the yard and the lands beyond the yard which comprise six acres. The defendant was asked about the affidavits and maps he had lodged with the Property Registration Authority and the defendant replied that he was unable to locate those affidavits or maps. The defendant also alleged that a draftsman prepared a map which was lodged with his second application to a Property Registration Authority, but that this map was also unavailable."

19. In her judgment in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 at paragraph 49, the High Court (Murphy J.) inter alia observed obiter that "[i]n cross-examination it transpired that during the currency of these proceedings, Mr Leahy had lodged a section 49 application under the Registration of Title Act 1964, with the Property Registration Authority, claiming adverse possession of the land adjoining the development. This may well include the land to which he claims to be entitled as a matter of contract. The extent of his claim to adverse possession is not before the court. The application appears to have been rejected by the Property Registration Authority. The only significance of this matter in determining the rights of the parties before the court on this claim, is that in cross- examination, Mr Leahy stated that he had sought squatter's title as a bargaining tool, to bring the plaintiff Mr Doyle to the table. That frank admission, in the court's view, provides the key to the unlocking of this whole case".

The Order of the Circuit Court dated 6^th December 2021

20. On 6^th December 2021, the plaintiff was represented by solicitor and counsel and the defendant appeared in person. After hearing the evidence and submissions of the parties, His Honour Judge Comerford ordered as follows:

"(1) A mandatory injunction in favour of the Plaintiff directing the Defendant to permanently remove all equipment, building materials, storage units, building scrap, prefabs and any material whatsoever belonging to him from the yard contained within Folio 16922 of the Register of County Kilkenny and from any other part of the said Folio.

(2) An order directing that all materials are to be removed with [in] [sic.] a period of 12 weeks from today's date and the Defendant to be put on notice that he is in contempt of Court if any of the materials as set out above are on the premises after the expiration of that 12 week period.

(3) An injunction restraining the Defendant, by himself, his servants or agents from in any manner or fashion howsoever, causing or occasioning acts of trespass by entering onto or interfering with the Plaintiff's property save that the Defendant may enter onto the property for a period of 12 weeks for the sole purpose of removing materials in accordance with the mandatory injunction.

(4) A Declaration that the Defendant, his servants or agents has no interest in Folio 16922 of the Register of County Kilkenny and has no entitlement to occupy the said property in any manner whatsoever and/or to store his belongings thereon.

(5) No order is made in relation to damages.

(6) The Court makes no order in relation to the relief sought at paragraph 4 of the Equity Civil Bill.

(7) The Court makes an order for costs in favour of the Plaintiff being half the amount of the Plaintiff's costs to include any reserved costs, same to be taxed in default of agreement.

(8) The Court refuses the Defendant's application for a stay.

(9) Liberty to apply."

APPLICATION TO ADMIT NEW EVIDENCE

The plaintiff's application pursuant to O. 61, r. 8 RSC 1986

21. The plaintiff's application to adduce new evidence is summarised at paragraphs 16 to 24 of the Affidavit of Terry Doyle, solicitor, sworn on 25^th June 2024, where he referred to this application to adduce new evidence at the hearing of the appeal from three witnesses; Mr. Reggie Booth, Mr. Oliver (Ollie) Carey and Mr. Mark Hilliard in circumstances outlined by Mr. Doyle as follows:

"(17) The plaintiff seeks liberty to adduce evidence at the hearing of this appeal from three witnesses; Mr. Reggie Booth, Mr. Ollie Carey and Mr. Mark Hilliard in circumstances where firstly, it was not appreciated until the matter proceeded to a hearing on 6^th December 2021 that the period of possession which would be seized upon by defendant, was a period prior to the plaintiff going into occupation of the property. I say that the plaintiff had acquired the property in 1996/1997 and no evidence was adduced by the defendant from any witnesses in support of his claim to the fact that he had already acquired adverse possession of the yard when the plaintiff went into occupation.

(18) Secondly, the land over which adverse possession was claimed by the defendant was never identified by [the] defendant by reference to a map. The extent of the area only emerged during cross-examination, when the defendant was asked to mark the map and an identified area over which he was claiming adverse possession. The defendant marked the yard outside the commercial unit and 6 acres of adjoining undeveloped land. The plaintiff had been given no indication prior to this that the defendant was also claiming he had taken possession of the six acres of undeveloped land.

(19) Thirdly, a case was fixed for hearing and assigned a date for full hearing, in the context of an application for Attachment in the absence of a defence having been delivered. I say that as a result of the short timeframe between the delivery of the defence and counterclaim and the hearing on 6^th December 2021, a notice for particulars had not been raised. Instead, however, I wrote the defendant on several occasions thereafter requesting a copy of his Land Registry applications which would identify the property over which he was claiming adverse possession and I also requested that he produce said Land Registry applications which should have included a marked map and I also requested the defendant to produce said affidavit at the hearing of the proceedings on 6^th December 2021 which he failed to do."

22. Mr. Doyle, in his Affidavit following these matters, then addresses why evidence is required from each of the witnesses, as follows:

"(20) I say that the Plaintiff wishes to adduce evidence from one Mr. Reggie Booth. I say that Mr. Booth was a Tenant of Roadmaster Caravans Limited, the company from which the plaintiff purchased the property in 1996/1997. I say that Mr. Booth ran an indoor carting business from the property in the mid to late 1990s and that the plaintiff wishes to adduce evidence from Mr. Booth in relation to the defendant's use of the yard/6 acres, prior to the plaintiff acquiring the property in 1996/97 and immediately thereafter until his departure.

(21) I say that the plaintiff also wishes to adduce evidence from one Mr. Ollie Carey who was the manager for the plaintiff's business (Doyle's Wholesale) when the plaintiff purchased the property. Mr. Carey can adduce evidence in relation to work carried out to clear the 6 acres by one Mr. Fintan Phelan, now deceased and the uses of the property after purchase and his discussions with the defendant Mr. Leahy about leaving the gate open.

(22) I say that the third witness the plaintiff wished to call is a Mr. Mark Hilliard who was the Chief Financial Officer for the plaintiff company in 1996. I say that Mr. Hilliard can also adduce evidence in relation to discussions and correspondence with the defendant Mr. Leahy in 1997 relating to rent and security measures".

The response of the defendant on the question of new evidence

23. By an Affidavit sworn on 24^th September 2024, the defendant replied to the Affidavit of Mr. Terry Doyle, sworn on 25^th June 2024. He inter alia referred to the decision of the High Court (Murphy J.) and stated that he had not been able to exhibit the attendance notes, particularly that dated 6^th September 2011, during that appeal. The defendant's response to the plaintiff's motion (and his own application to strike out the plaintiff's proceedings) referred inter alia to matters the subject of previous litigation which had already been decided and in relation to which the defendant disagreed. The defendant's submissions addressed matters including access to the Digital Audio Recordings (the 'DAR') of the matters before the Circuit Court which he stated he was not able to obtain due to financial reasons.

24. At paragraph 8 of his Affidavit, the defendant refers to proceedings under Record No. 2010/E33 and at paragraph 9, he refers to Record No. 2019/E16.

25. At paragraph 16 of his Affidavit, the defendant sets out the nature of his disagreement with the evidence of Barry Monaghan, Caroline King, Jim Purcell and Brian Bolster.

26. At paragraph 19, the defendant refers to Mr. Doyle's summary of the intended evidence of Reggie Booth, Ollie Carey and Mark Hilliard.

27. In summary, for example, the defendant objected to Mr. Booth giving evidence, arguing that Mr. Booth had no real knowledge of the defendant's use of the yard/lands and that Mr. Terry Doyle, solicitor, was ambiguous as to the start and termination date of Mr. Booth's rental period of the premises, and asserted that this ambiguous statement was consistent with the defendant's application to strike out proceedings on the basis of the doctrine of laches.

28. In relation to Mr. Carey, the defendant objected to his giving of evidence, arguing that it was a misrepresentation to suggest that Mr. Carey had an input/involvement with the contractor (Mr. Phelan) in relation to the six acres of land, and that it was also a misrepresentation that the plaintiff used the six-acre land in question which he stated was a semi hard cored area used by the previous owners (Roadmaster) to store caravans and was allegedly used by the defendant to set up his 21 metre x 8.5 metre mobile marketing unit consisting of article showroom with awnings powered by a nosed tractor unit.

29. The defendant stated in his Affidavit that Mr. Fintan Phelan (now deceased) was well-known to the defendant as he was the defendant's contractor who had constructed his shopping mall in Castlecomer, and argued that because he could not now call Mr. Phelan as a witness, this supported his argument to strike out the plaintiff's proceedings based on the doctrine of laches.

30. The defendant also stated in his Affidavit that Mr. Carey, like Mr. Hillard, was an associate in business with the plaintiff and made allegations seeking to question whether their evidence could be relied upon.

31. The defendant's objection to Mr. Hilliard, inter alia alleged that nothing Mr. Hilliard said on behalf of or in support of the plaintiff could now be relied upon and alleged that he had made misrepresentations at the 2010 ejection hearing to avoid any memorandum appearing regarding the 1999 Agreement and payment of the security deposit and contested evidence as to where the moneys emanated from and where the plaintiff asserted that he paid the defendant moneys in relation to his statutory rights. The defendant's allegation again sought to question whether Mr. Hilliard's evidence could be relied upon.

DISCUSSION & DECISION ON NEW EVIDENCE APPLICATION

O.61, r. 8 RSC 1986

18. Order 61 of the RSC 1986 addresses appeals from the Circuit Court.

19. Order 61, rule 8 provides as follows:

"Where any party desires to submit fresh evidence upon the hearing of an appeal in any action or matter at the hearing or for the determination of which no oral evidence was given, he shall serve and lodge an affidavit setting out the nature of the evidence and the reasons why it was not submitted to the Circuit Court. Any party on whom such affidavit has been served shall be entitled to serve and lodge an answering affidavit or to apply to the Court on the hearing of the appeal for leave to submit such evidence, oral or otherwise, as may be necessary for the purpose of answering such fresh evidence, provided, however, that the Court may at any time admit fresh evidence, oral or otherwise on such terms as the Court shall think fit, and may order the attendance for cross-examination of the deponent in any affidavit used in the Circuit Court or the High Court."

20. The applicable legal principles in this application were set out in the judgment of the Supreme Court in Murphy v Minister for Defence [1991] 2 I.R. 161 at 164 where Finlay C.J. referred to the following three considerations:

"(1) The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

(2) The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

(3) The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible." [2]

The context

21. To recap, the context for the plaintiff's application seeking liberty to admit fresh evidence relates to the extent of the land over which the defendant is claiming adverse possession. Upon becoming aware of the defendant's application to the (now styled) Property Registration Authority (from his statement before the Circuit Court in or around late 2018), the defendant was asked by the plaintiff in correspondence to identify the portion of land that he was claiming adverse possession over and he did not do so until giving evidence before His Honour Judge Comerford.

22. As set out earlier in this judgment, at that point, for the first time, the defendant outlined an area outside of the premises which included six acres of land, and it was not possible to address what the defendant was stating to the court for the first time. The plaintiff could not address matters prior to 1996 as he had gone into occupation in late 1996 and signed a contract in early 1997.

23. I am satisfied, for the following reasons, that the application to adduce new evidence from Mr. Reggie Booth, Mr. Oliver Carey and Mr. Mark Hilliard meets the criteria as set out in Murphy v Minister for Defence [1991] 2 I.R. 161 at 164 per Finlay C.J in that, in each of their cases, their respective intended evidence (or that sought to be adduced) (a) was in existence at the time of the trial and could not have been obtained with reasonable diligence for use at the trial, (b) was such, that if given, it would probably have an important influence on the result of the case, though it need not be decisive and (c) was apparently credible, though not necessarily incontrovertible.

Decision in relation to Mr. Reggie Booth

24. The intended evidence of Mr. Reggie Booth in his Affidavit sworn 5^th July 2024, for example, is that he operated a go-cart track through his company, Indoor Carting, from the plaintiff's property from about mid-1996 to 1998 and he rented the right front warehouse from the plaintiff and is therefore evidence that existed at that time and given the circumstances in which the defendant clarified his claim of adverse possession when asked about it during the hearing before His Honour Judge Comerford, I am satisfied that Mr. Booth's evidence was in existence at the time of the trial and could not have been obtained with reasonable diligence for use at the trial. Mr. Booth's intended evidence would have an important influence on two matters: first, the defendant's use of the premises, in that he states that at all times, he used the right hand access point to enter his unit and both he and his staff parked his car in the yard to the right hand side of the warehouse (when viewing the property from the road) and access to the yard for vehicles was through a large gate with a smaller gate beside it for access to his customers who parked their cars outside the gate. Mr. Booth's intended evidence is that he held the key to these gates during his occupation and his go-cart track normally operated four evenings per week and on Saturday and Sunday; second, Mr. Booth's intended evidence addresses the land adjacent to the yard (which now represents the defendant's expanded claim for adverse possession) to the effect that permission was given by the plaintiff to Carlow Car Club (with whom Mr. Booth was involved) by the plaintiff (who was involved in sponsoring the rally) to clear (with a loader) and spray this land adjacent to the yard for a service area for a rally in or around 2006 which the Club ran. As Mr. Booth's intended evidence relates to the use of the yard and the user of the premises in 2006, it is such that it is presumptively credible without necessarily being incontrovertible.

Decision in relation to Mr. Oliver Carey

25. Mr. Oliver (Ollie) Carey was a former general manager of the plaintiff's business. Mr. Carey's intended evidence in an Affidavit sworn on 14^th October 2024 will address that in around 1997/1998 he witnessed that the land adjacent to the yard (the subject of the defendant's expanded claim for adverse possession) was overgrown and was cleared by a loader and debris pushed back towards the trees at the rear of the land and that Mr. Fintan Phelan (now deceased) was employed to put in foundations with subfloor in the right hand yard which was then filled with gravel to enable demonstrations of machinery to be carried out, such as power float demonstrations, plate compactor and roller screed demonstrations. Given the circumstances in which the defendant clarified his claim of adverse possession when asked about it during the hearing before His Honour Judge Comerford, I am satisfied that Mr. Carey's evidence was in existence at the time of the trial and could not have been obtained with reasonable diligence for use at the trial.

26. I am satisfied that Mr. Carey's intended evidence in his Affidavit sworn on 14^th October 2024 is such, that if given, it could have an important influence on the result of the case, though it need not be decisive and is credible, though not necessarily incontrovertible. In this regard, Mr. Carey's intended evidence refers to details of the works carried out in the period 1997 and 1998 including having a Belle Mini Skidsteer Loader on display in the right hand yard for testing purposes and customer demonstrations, the presence of gravel in this yard where diesel concrete mixers were tested, demonstrations, testing and use of a range of Efco chainsaws that were on display, use of trees for cutting taken from the forest behind the premises, and that most of the testing and demonstration was carried out in the right hand yard for safety reasons as there was too much activity in the left hand yard with trucks coming and going. Mr. Carey's intended evidence also refers to the lock on an existing gate into the right hand yard when Doyle's Wholesale purchased the premises and that various tenants at that time all had keys for access purposes, and that on numerous occasions Mr. Carey spoke to the defendant about not locking the gate because the gardaí had spoken to him on two or three occasions about the gate being left open. Mr. Carey's intended evidence is that he had a new heavy duty lock and chain installed and gave a key to the defendant but that it was still left open and he recalls that a replacement gate was erected at a later stage and a lock was placed on the replacement gate by the plaintiff's servants or agents and that key/fob was given to the defendant. Mr. Carey's intended evidence is that he spoke to the defendant about not locking the gate.

Decision in relation to Mr. Mark Hilliard

27. Mr. Mark Hilliard was the Retail Managing Director for the plaintiff's company, MP Doyle Limited in 1996 when the plaintiff purchased the premises at Shamrock Commercial Park, Castlecomer and his intended evidence is set out in an Affidavit sworn on 29^th October 2014.

28. Mr. Hilliard's intended evidence is that he met the defendant in or around January 1997 and wrote to him in relation to new rent arrangements and security measures and his leasing arrangements going forward and he exhibits correspondence dated 7^th January 1997 and 21^st January 1997 and states that the defendant was claiming statutory rights to a portion of one of the warehouses at the property and that he was compensated for forgoing any such rights. In his intended evidence, he states that at no time did the defendant claim any rights statutory or otherwise to any portion of the property outside of the warehouses and was not to his knowledge in occupation of any part of the property outside the warehouses.

29. Having regard to his Affidavit dated 29^th October 2014, I am satisfied that Mr. Hilliard's intended evidence was in existence at the time of the trial and could not have been obtained with reasonable diligence for use at the trial, was such, that if given, it would probably have an important influence on the result of the case, though it need not be decisive and is credible, though not necessarily incontrovertible.

APPLICATION TO STRIKE OUT

Introduction

30. In the defendant's Affidavit dated 24^th September 2024 replying to the Affidavit of Terry Doyle, solicitor for the plaintiff, sworn on 25^th June 2024 grounding the plaintiff's application to admit new evidence, the defendant alleges at paragraphs 4 as follows:

"(4) Terry Doyle's affidavit is a testament to the necessary and proper intended motions. The defendant on the 22^nd July 2024 received leave from Mr. Justice Coffey to file and [deliver] [sic.] to the plaintiff returnable on the 06 November 2024 any motion (i) Notice of Motion to strike-out these proceedings as of the rule of Henderson and Henderson (ii) Notice of Motion to strike-out these proceedings as of the Doctrine of Laches (iii) Notice of Motion for the Plaintiff to produce documents (inter alia arising out of Terry Doyles affidavit of the 25^th day of June 2024)".

31. Insofar as the defendant's strike-out application (relying on the rule in Henderson v Henderson and the doctrine of laches) was a response to the matters referred to in the plaintiff's application to adduce new evidence, there is an overlap in the issues addressed in Mr. Leahy's Affidavit sworn on 29^th October 2024 grounding the application to strike-out and his replying Affidavit sworn on 24^th September 2024 in reply to the plaintiff's motion to admit new evidence and the plaintiff did not reply to the Affidavit of the defendant dated 29^th October 2024.

The Defendant's reliance on Henderson v Henderson

32. At paragraphs (6) to (10) of Mr. Leahy's Affidavit sworn on 29^th October 2024 grounding the application to strike-out, he refers to his reliance on the rule in Henderson v Henderson and states at paragraph (7) of that Affidavit that the plaintiff "was given the opportunity to raise the subject lands of these proceedings by Judge Doyle in [C]ircuit [C]ourt proceedings record no. 2010/EJ003 and refused not to do so."

33. At paragraph (8) of his Affidavit, the defendant alleged inter alia that the plaintiff made a "strategic decision to preclude the lands the subject of these proceedings from the 2010 proceedings", at paragraph (9) he refers to a site visit from Her Honour Judge Doyle on that occasion to the factory and lands, and to the Order of 3^rd April 2019 directing release of the DAR (on payment of same) of the hearing which took place before her in Kilkenny Circuit Court on 28^th September 2018 and stating at paragraph (10) that the plaintiff was "now captured by that decision and cannot now raise the matter of these lands in these proceedings. Thereof these proceedings should be struck-out".

34. In his oral submissions, the defendant submitted that the rule in Henderson v Henderson meant that "you cannot bring something you should have brought back then" and that he did not know the law that well back then and also referred to the proceedings before Her Honour Judge Doyle and Ms. Justice Murphy.

The Defendant's reliance on Laches

35. In seeking to rely on the doctrine of laches, the defendant in his Affidavit sworn on 29^th October 2024 grounding the strike out application, and in his oral submissions, refers to what he describes as "the massive loss of memory" and the majority of his Affidavit refers to the decisions of Her Honour Judge Doyle in the Circuit Court and the judgment upholding that decision in the High Court (Murphy J.) which is reported as Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 (unreported, High Court (Murphy J.) 28^th March 2019).

36. In brief summary, the proceedings in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 involved various claims and counterclaims in relation to part of the premises at Shamrock Commercial Park, Castlecomer. The proceedings commenced in early March 2010, in mid-May 2012 they were adjourned generally with liberty to re-enter, and approximately 4 years and 9 months later in early February 2017, a notice of re-entry was filed and on the same date the plaintiff delivered replies to the defendant/counterclaimant's notice for particulars of 2^nd August 2011.

37. The matter came on for hearing before Her Honour Judge Alice Doyle who granted an Order for possession of the property to the plaintiff, to be delivered up within ten weeks from the 28^th September 2018 and that the defendant was to pay to the plaintiff the sum of €29,796 in respect of arrears of rent and mesne rates, and the plaintiff was awarded the costs of proceedings to be taxed in default of agreement. Pending an appeal, the High Court (MacGrath J.) granted a stay in December 2018.

38. As mentioned earlier in this judgment, on 28^th March 2019, the High Court (Murphy J.) held inter alia as follows: following the purchase of the property, the plaintiff had paid the defendant IR£17,000 for a waiver or surrender of his rights under the Landlord and Tenant (Amendment) Act 1980. In late 1999, when the plaintiff required the use of the showroom area which the defendant had rented from the previous owner (Roadmaster Caravans Limited) he permitted the defendant to occupy another part of the premises on the same terms and conditions as he had occupied the showroom; the defendant went into occupation in late 1999 or early 2000 and paid rent until in or about September/October, 2002 but despite demand, he had paid no rent since that time and that the defendant remained in occupation and has asserted in correspondence a willingness to pay any rent found to be due. The Order of the High Court (Murphy J.) dated 30^th April 2019 stated as follows:

"(1) The Court affirms the entirety of the Order of Judge Alice Doyle of the 28^th of September 2018 made in favour of the Plaintiff.

(2) The Court notes the Defendant's undertaking to commence vacating the premises within a period of two weeks of today's date and the Court accepts the Defendant's undertaking to that effect.

(3) The Court grants the Defendant a period of ten weeks from today's date to fully vacate the premises and in the event that the Defendant does not vacate or commence the process of vacating within two-weeks from today's date, the Plaintiff has liberty to re-enter the matter.

(4) The Court grants costs of the proceedings to the Plaintiff above and below to be taxed in default of agreement."

39. The defendant submitted that the doctrine of laches was not just about delay and time, it was also about attitude and how the delay occurred. In this case, the defendant submitted that the delay happened in or around 2011 and 2012 because a reply to a notice for particulars was not furnished and the matter was not re-entered until 2017 and by that time the delay had resulted in the loss of memories.

40. On 26^th July 2011 in proceedings entitled The Circuit Court, Southeastern Circuit, County of Kilkenny, Record No. 2010/EJ003, Michael Doyle v Michael Leahy t/a Ideal Kitchens and Bedrooms, Her Honour Judge Doyle had made the following Order:

"(1) Adjourn the matter peremptory to next sessions

(2) Allow seven days to lodge amended Defence and Counterclaim

(3) Mr. Leahy to serve documents by hand

(4) Mr. Leahy undertakes to remove rubble within three weeks from this date".

41. The defendant states that on the day, there had been no Order made which he states explains why he sought the DAR and the attendance notes. He referred to a copy of an attendance note dated 6^th September and explained how he came to be in possession of the attendance notes. He states that his defence and the attendance note were made in 2011 and were referring to a payment in 1999, in contending that these matters were all about delay, and he questioned the accounts from Mr. Doyle and Mr. Hilliard 9 years later and 18 years later in relation to their recollection of matters, including the provenance of sums of money, stating that their recollection may be down to memory loss.

42. Further, the defendant stated that the Circuit Court Order fixes the date as of 26^th July 2011 and confirms that the material was "rubble". He compared this to what he alleged was his error referred to in the judgment of the High Court (Murphy J.) in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 at paragraph 45 and, for example, his mistake of referring to Euros rather than pounds.

43. The defendant submits that the laches issue which was before the High Court (Murphy J.) was in relation to a different matter and Henderson v Henderson does not apply as he could not have made the point before in referring to the delays and alleged lapses in memories in relation to cases filed in 2019, which is his argument in this application.

ASSESSMENT & DECISION ON APPLICATION TO STRIKE OUT

44. I am, for the following reasons, refusing the defendant's application to strike out the plaintiff's proceedings in Circuit Record No. 2019/E0016.

Decision on the defendant's reliance on Henderson v Henderson

45. The application to strike out arises in the context of the defendant's appeal from the Order of His Honour Judge Comerford dated 6^th December 2021. I have set out the involved context in which this appeal arose at the beginning of this judgment. Essentially, when giving effect to one court Order in or around July 2019, the defendant moved the contents (primarily building materials) out of the unit to the adjacent yard which led to the issuing of proceedings and subsequent Orders of, first, His Honour McCourt on 6^th March 2020 and subsequently, His Honour Judge Comerford on 6^th December 2021 directing the defendant remove all his material from the yard contained within Folio 16922 of the Register of County Kilkenny and from any other part of the said Folio. These are not matters which could have been but were not made in previous proceedings or which might be captured by the rule in Henderson v Henderson (1843) 3 Hare 100.

46. Further, the nature of the exact claim which the defendant was in fact making in relation to adverse possession, including over the six acres, and the particularisation of this claim, arose during the course of his giving evidence before His Honour Judge Comerford on 6^th December 2021 and by reference to a map/plan which was handed to the defendant when giving evidence.

47. As quoted earlier in this judgment, the general and unspecified nature and context of the defendant's alleged claims were referred to in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 at paragraph 49, where Murphy J. inter alia observed that under cross-examination, during the currency of these proceedings, the defendant had lodged a section 49 application under the Registration of Title Act 1964, with the Property Registration Authority, claiming adverse possession of the land adjoining the development and that the extent of his claim to adverse possession was not before the court. As set out earlier, Murphy J. stated that this application appeared to have been rejected by the Property Registration Authority and added that the "only significance of this matter in determining the rights of the parties before the court on this claim, is that in cross- examination, Mr Leahy stated that he had sought squatter's title as a bargaining tool, to bring the plaintiff Mr Doyle to the table. That frank admission, in the court's view, provides the key to the unlocking of this whole case".

48. Similarly, the general and unspecified nature of the defendant's alleged claim is evident from two copies of letters from the Property Registration Authority ("PRA") to the Defendant.

49. The first page of a letter from the PRA to the defendant (the copy furnished to me was undated) sent to him at his address with reference number D2018LR147699U in relation to Folio No. KK11S, KK16992, with the words "rejected" referred to the defendant as the applicant and stated as follows:

"Dear Sir/Madam,

Documents and validated fees are returned. This application cannot be registered until the following issues have been remedied:

(1)A personal applicant must complete a Personal Applicant Identification Form. This is available on our website under FORMS and it is the first form under Frequently Used forms [Identification form–Land Registry Identification Form].

(2) The application plot affects folio KK16992 AND KK11S (a subsidiary folio registered to NAMA).

(3) Is the property securely bounded or fenced off from all adjoining property. What is the age, nature and condition of such boundaries? I note from Google maps that the left-hand boundary of the plot appears to be a commercial building. This commercial building appears to have access to this plot. I fail to see how the occupiers of this commercial building are excluded from accessing this plot. Based on this alone, this application does not appear to be suitable for adverse possession. A property must be securely bounded so as to exclude others in order to make a claim for adverse possession." (Bold and underlining in original letter).

50. A letter from the PRA to the defendant dated 30^th August 2019 sent to him at his address with reference number D2019LR094512G in relation to Folio No. KK16992 and referring to the defendant as the applicant, stated as follows:

"Dear Sir/Madam,

Documents and validated fees are returned. This application cannot be registered until the following issues have been remedied:

(1)My requisitions dated 3^rd January 2019 on your previously lodged application refer. The majority of my requisitions have not been replied to.

(2) I fail to see how lodgement of a court transcript will prove a case for adverse possession. It may well be that this application should be adjudicated on by the courts.

(3) The schedule applies for registration of a plot marked "A". The map lodged is different to the previous map lodged by you and does not contain the letter "A."

(4) The colour (copy) photographs were not explained.

As already stated, this application does not appear to be a case that is suitable for adverse possession".

51. Whilst the defendant submits that this rejection by the PRA of an application which has never been filed is not the same as a refusal of an application where the file has been considered and at no time did the PRA refuse his applications, i.e., he states that because his paperwork was not correct his application was not considered or 'put on file' (and, in addition, states that he was informed that if a matter is before the High Court, the application would be automatically rejected), such documentation highlighted by the PRA, and requested by them from the defendant, could assist in clarifying the alleged claims of adverse possession made by the defendant and raised by him when giving evidence before His Honour Judge Comerford.

Decision on Laches

52. The central focus of the defendant's application was based on alleged delay or laches and what he described as a loss of memory for something going on for so long. The copy extract referred to by the defendant, entitled 'Irish Legal Authorities on the Doctrine of Laches and listing authorities' and 'Historical Foundations and Principles' which was referred to by the defendant does not assist the defendant's arguments in this application to strike out the plaintiff's proceedings.

53. A large portion of Mr. Leahy's Affidavit on 29^th October 2024 grounding his strike out motion, also dated 29^th October 2024, refers to the issues involved in proceedings in 2010 and the subsequent judgments of Her Honour Judge Doyle and the decision of the High Court (Murphy J.), on appeal, in Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 (which judgment was delivered on 28^th March 2019), including at paragraphs 2, 7, 9, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34 of an Affidavit running to 35 paragraphs.

54. The defendant accepts that he already made an argument of laches before the High Court (Murphy J.) who determined that he was not entitled to rely on it.

55. The defendant sought leave to appeal the decision of the High Court (Murphy J.) to the Supreme Court which was refused in a determination of the Supreme Court dated 31^st July 2019 in Michael Doyle v Michael Leahy t/a Ideal Kitchens and Bedrooms [2019] IESCDET 184.

56. The defendant also raised similar allegations before the High Court (Hyland J.) which have been struck out as against counsel and those proceedings are ongoing against Mr. Terry Doyle (solicitor) and Mr. Michael Doyle (the plaintiff) under Record No. 2019 9220P.

57. Further, and without in any way commenting on the merits of any proposed or future amended plea based on laches, or any application to amend his defence to plead laches, it is open to the defendant, in due course, to make an application to amend his defence and seek to plead laches.

CONCLUSION

58. In the circumstances, I shall, pursuant to O. 61, r. 8 of the RSC 1986, grant leave and so order that the evidence in the Affidavits of Mr. Reggie Booth sworn on 5^th July 2024, Mr. Oliver (Ollie) Carey sworn on 14^th October 2024 and Mr. Mark Hilliard sworn on 29^th October 2024 be submitted at the hearing of this appeal.

59. As the defendant's replying Affidavit sworn on 24^th September 2024 to the plaintiff's motion to adduce new evidence addressed matters which went beyond the issue of the admission of fresh evidence, I shall grant the defendant leave to file an Affidavit addressing the fresh evidence of Mr. Reggie Booth, Mr. Oliver (Ollie) Carey and Mr. Mark Hilliard and that this be done within 4 weeks of the perfection of the Order in this application.

60. I refuse the defendant's application seeking to strike out the plaintiff's proceedings.

PROPOSED ORDER

61. Accordingly, I shall make an Order pursuant to O. 61, r. 8 of the RSC 1986, granting the plaintiff leave to submit the fresh evidence in the Affidavits of Mr. Reggie Booth sworn on 5^th July 2024, Mr. Oliver Carey sworn on 14^th October 2024 and Mr. Mark Hilliard sworn on 29^th October 2024 for the hearing of this appeal.

62. I shall make an Order granting the defendant liberty to file an Affidavit addressing the fresh evidence of Mr. Reggie Booth, Mr. Ollie Carey and Mr. Mark Hilliard and that this be done within 4 weeks of the perfection of this Order.

63. I shall make an Order refusing the defendant's application seeking to strike out the plaintiff's proceedings.

64. The proceedings in relation to the substantive appeal shall be listed in the Non-Jury/Judicial Review List.

65. I shall put the matter in before me at 10:30 on Wednesday 14^th May 2025 to address the question of costs.

Appearances

66. Dermot Cahill SC and Cliona Cleary BL appeared for the Plaintiff, instructed by Malcomson Law, solicitors.

67. The Defendant is a litigant-in-person.

CONLETH BRADLEY

7^th May 2025

[1] Mr. Doyle then exhibited a map which was marked by the defendant in the witness box.

[2] See also the application of Murphy v Minister for Defence in McMullin v Kennedy [2012] IESC 56 per Denham C.J., at paragraph 18.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doyle v Leahy (Approved) [2025] IEHC 266 (07 May 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC266.html Cite as: [2025] IEHC 266

High Court of Ireland Decisions