The High Court has granted continuing Mareva-type relief following the disposal of a statutory appeal from a determination order.
Delivering judgment for the High Court, Ms Justice Niamh Hyland commented that “the inherent jurisdiction of the High Court includes a power to make orders that remain in place beyond the final determination of the proceedings, including pending resolution of discrete matters by an inferior court”.
Background
The applicant tenant ceased paying rent to her landlord and did not comply with a notice of termination served upon her on 18 May 2021, only vacating the property in February 2023.
An adjudication took place before the Residential Tenancies Board which determined that the tenant owed a sum to the landlord, and the tenant appealed that decision to the Tribunal established pursuant to s.102 and s.103 of the Residential Tenancies Act 2004.
The Tribunal made a determination upholding the notice of termination and directing the tenant to pay arrears of €25,359.50 to the landlord, which figure was less €1,709 determined to be owing by the landlord to the tenant for breaching his obligations. The tenant was directed to pay rent of €3,250 per month until she vacated the property.
The Residential Tenancies Board then made a determination order in terms of the Tribunal’s determination. The tenant appealed the Tribunal’s findings in respect of the validity of the notice of termination and the quantum awarded to her in respect of the landlord’s breaches.
Before the appeal was heard, and whilst the tenant was still in possession of the property and without paying rent, the landlord brought a motion seeking to compel the tenant to maintain, or not to dissipate, sums she was due to receive from her mother’s estate. The High Court granted the order sought, and the tenant subsequently vacated the property.
The tenant’s appeal then came on for hearing before Ms Justice Hyland, who refused the appeal and affirmed the determination order.
The landlord brought two further motions, the first seeking to raise the amount secured by the Mareva-type order to €73,041 and to vary the determination order to reflect that change, and the second to reduce the sum sought to be restrained to €45,000 pending payment of the arrears and seeking an order of garnishee attaching that sum or appointing a receiver over that amount.
The tenant brought a motion seeking damages and seeking to overturn the Mareva-type order on the basis of non-disclosure by the landlord.
The High Court
Ms Justice Hyland noted at the outset that pursuant to s.123(4), the determination of the High Court on appeal was final and conclusive, and was required to be enforced.
The judge expressed confusion as to why the landlord sought reliefs which would circumvent the existing statutory regime for enforcement in the District Court, noting that this would obviate the tenant’s right to invoke the limited jurisdiction of the District Court to revisit the determination order.
Finding that the landlord would be entitled to a garnishee order, the court considered that to grant a garnishee order would ignore the statutory scheme for enforcement of the debt. Recognising that the same logic applied in respect of the appointment of a receiver, Ms Justice Hyland refused those reliefs.
Seeing as the determination order was designed so that further arrears would be accounted for, the court further refused to vary the order.
Without prejudice privilege
The tenant argued that in the application for a Mareva-type order, the landlord gave the impression that there was a lack of interaction between the parties which justified an argument that she had no intention to satisfy the debt from the monies owing to her from her mother’s estate. The tenant asserted that there was ample interaction, and sought to rely on without prejudice material in support of that assertion.
Referring to QRD Development Company No. 3 DAC [2022] IEHC 498, Ms Justice Hyland noted that it is well-established that privilege over without prejudice material cannot be waived unilaterally, and that the present attempt to waive privilege was “ineffective” where the tenant did not identify any grounds to justify a waiver.
The court then considered whether the tenant could rely on the failure to disclose the existence of without prejudice negotiations, considering that whilst the rule protects the content of negotiations, “disclosing the fact of without prejudice negotiations without referring to their content does not have the same negative effect on settlement negotiations”.
Full and frank disclosure
Turning then to whether the landlord had failed to put all relevant facts before the court when seeking the Mareva-type relief, the judge found that the landlord’s affidavit did give the impression that the tenant’s legal team failed to engage with the landlord’s concerns.
Noting that the starting point was O’Mahony v Horgan [1995] 2 IR 411, the court highlighted the necessity to make full and frank disclosure of all material matters, with “material” being what was discussed in Atkin v Moran[1871] IR 6 EQ 79 as “if it is such as might in any way affect the mind of the Court, it is its duty to bring it forward”.
Ms Justice Hyland was guided by Bambrick v Cobley [2005] IEHC 43, finding that even if she had known of the settlement negotiations, she would not have been persuaded to refrain from granting the Mareva-type order, and nonetheless, it was evident from the affidavits before her that the omission was innocent, and that “the failure was on the lesser end of the scale”.
Finding it inappropriate to discharge the order, the court instead suggested a variation of the costs order following the grant of the injunction.
Moving to the landlord’s motion to reduce the sum not to be dissipated from the tenant’s inheritance, the court noted that the landlord’s solicitors had since confirmed that the tenant stood to inherit €68,136.86. Ms Justice Hyland found that as the appeal had been determined, the role of the court was arguably at an end.
Referring to the judgment of Mr Justice Garrett Simons in O’Keefe v. Commissioner of An Garda Siochana [2023] IEHC 489, the High Court confirmed that it had jurisdiction to make orders continuing beyond the final determination of the proceedings, including pending the resolution of discrete matters by an inferior court, such as the District Court.
Accordingly, the court concluded that it had jurisdiction to order the retention of certain sums for the purpose of satisfying any District Court order that may be made enforcing the determination order, where the interests of justice permitted.
Conclusion
Finding that the tenant had neither adduced any evidence to counter the landlord’s evidence as to the financial impact of her defaults upon him, nor made any undertakings or offers to pay the outstanding rent, the court found that the balance of justice tilted in favour of the landlord, and granted an order restraining the tenant from dissipating her share of the state below €45,000 pending any order of the District Court or the Circuit Court on appeal.
Hamilton v. PRTB [2023] IEHC 539
