Promontoria – Designated Activity Company v Oliver O’ Sullivan and Edmund Heaphy


The Plaintiff initiated proceedings by way of Special Summons seeking a Declaration that there was due and owing monies by the Defendants to Promontoria in the sum of €255,163.68 as of August 2018 in addition to an Order that the said amount plus interest stands well charged on the interest of the Defendants in the property at 43, Dubh Carraig, Ardmore, Waterford.

The Plaintiff sought a Well charging Order on two separate grounds, one being on the basis of a Solicitors Undertaking to the Plaintiff’s predecessor, Ulster Bank, and secondly, on the basis of an agreement between the Bank and the Defendants to create such security in a Letter of Loan Offer dated the 10th September 2007.


Solicitors Undertaking:

In 2002, the Solicitors for the Defendants gave an Undertaking to hold Title Deeds on trust for the Bank. The Undertaking appeared to have been in consideration of the Bank advancing money to the Defendant’s to discharge previous Third-Party mortgages and encumbrances however, the advances to which they related to were not specified in the Undertaking. Furthermore, the Undertaking did not specify the property rather it described the property as “Office/Apartment at Dubh Carraig, Ardmore, Waterford”. Finally, the Undertaking exhibited a Land Registry map for the overall development of which the apartment formed part of, and the map was reasonably small scale.

Loan Facility:

By offer letter dated the 10th September 2007, the Bank offered credit facilities in the amount of €190,000. The Facility Letter identified the relevant security as a First Legal Charge over property at 43, Dubh Carraig, Ardmore, Co. Waterford.

In 2016, the Bank registered a Caution over the Folio as no Mortgage was executed over the property and the Loan Facilities were transferred to the Plaintiff following a loan sale in 2016.

It was claimed that the Undertaking and the Loan Facility created an equitable mortgage over the property and that €255,000 was Well Charged against the Defendants’ interest in the property

It was not established that the 2002 Loan, to which the Solicitors Undertaking related to, was still outstanding by 2007 when the Loan Facility was concluded or indeed whether it was still outstanding at the present time.


Decision of the High Court:

The Court observed that the Solicitors Undertaking was not sufficiently cleared to create an equitable mortgage over the property. It was not clear that any of the funds advanced pursuant to the Undertaking remained outstanding. The Undertaking did not clearly identify the property. The court also noted that proceedings only issued in 2019, meaning that the Plaintiff did not meet the 12- year limitation period to take an action and as such the Plaintiff could not rely on the undertaking to ground the claim.

In respect of the 2007 Loan Facility, the Court was not satisfied that the full amount which was sought to be Well Charged was due and owing as the Summons did not comply with the requirement for the full particularization of the debt and there was a lack of detail as to how the interest claimed was calculated. It was noted that the Defendants did not deny that the principal amount in the 2007 Loan Facility had been advanced and remained outstanding. The Court was satisfied that there was no dispute but that the principal amount of €190,000 was advanced and remained outstanding and on that basis, it granted a Declaration that €190,000 was Well Charged in favor of the Plaintiff in respect of the Defendants’ interest in apartment number 43, Dubh Carraig, Ardmore, Co. Waterford.

Distressed Assets: Possession and Damages


This case was an emergency interlocutory application by the Plaintiff to prevent the Receiver Ken Tyrell and Everyday Finance from taking possession and selling his lands and from prohibiting an on-line action.  The urgency was that there was an auction scheduled to take place imminently.

By way of background the purchase of the property was funded by a loan from AIB and secured by a Charge over the lands.  The Plaintiff failed to meet his obligations in November 2016 and while he engaged with AIB, the loans were eventually transferred in 2019 to Everyday Finance.  Further engagement ensued between the Plaintiff and Everyday Finance however no resolution was found.

In September 2021 Everyday appointed Ken Tyrell as Receiver.  The Receiver’s power was limited to collection of the rents and profits.  The Plaintiff and his brother had a company called Hennessy Brothers Farming Limited which had licences to farm most of the lands subject to a €50,000 per annum payment which included a licence fee which was not paid over to the Receiver.  The Plaintiffs were unable to pay their debts or secure a restructuring of their debts.

The application for the injunction involved the restraining of the sale in the manner proposed by the Receiver and Everyday.  It was not contested that Everyday had a power of sale or that the power had arisen or that it was exercisable.  The Plaintiff said that he was shocked to be told that his lands were advertised for sale on a website.  The land appeared to have been first advertised for sale in early February 2022 with an auction date for the 24th February 2022 and the advertising campaign appeared to have been limited to those who might stumble on the listing on the website.

The Judge ultimately concluded that he did not believe that damages would be an adequate remedy.   Judge Allen referred to the issue of Everyday attempting to sell the lands with the Plaintiff in possession, but he did not go as far to say that Everyday were not entitled to offer the lands for sale without vacant possession.

Ultimately the Court concluded by granting the Orders sought essentially preventing the sale of the charged lands.  The Court did make directions to ensure the expedient exchange of Pleadings and early Trial date to minimise the risk of injustice to either party.

Vaginal Mesh


Vaginal Mesh

Have you or a loved one been affected by the vaginal mesh implant scandal?

Transvaginal mesh implant was a popular gynecological procedure carried out on women most commonly for the purposes of treating prolapse or stress urinary incontinence.

Unfortunately, a growing number of women have suffered with serious complications arising from this procedure being carried out and have developed chronic pain and other life altering problems.

For free confidential female led medico legal advice please contact MDM Law on 021 239 0620 or e-mail or




The Facts:

This matter came before the High Court by way of Statutory Appeal taken by the Insurer against a decision of the Financial Services and Pension Ombudsman made in respect of a complaint concerning an insurance policy. The Policy provided cover against structural defects in the property.

Donnelly and Luijkx purchased a house in 2006 with the benefit of an insurance policy which covered against structural defects in the property. In 2010 it emerged that some of the houses in the development had sustained damage associated with pyrite in the in-fill. Further defects came to light in the property when it was found that deflecting roof trusses in the attic were causing gaps and cracks in the ceilings and walls of the house. The property owner’s engineer in their report stated that “we are of the opinion that the damage observed is a direct result of the structural inadequacy of the in-situ trusses”.

There were two separate issues, one being a pyrite related property damage and damage to the structure of the roof. The Provider gave cover in respect of the pyrite damage but did not accept that the damage relating to the roof involving deflecting roof trusses was covered. The basis for the Provider’s refusal was rooted in the view that the roof trusses themselves, which it was accepted was structural and therefore covered by the policy, were not inherently defective. It was maintained that the deflection to the roof trusses arose from the manner in which a water tank had been positioned in the attic area without adequate or properly placed load spreading supports which in turn caused an intended load to be applied to the trusses. The Provider maintained that this constituted damage “caused to the structure” which was outside of the Policy rather than damage inherent “in the structure” which was covered.

The Ombudsman decision:

Donnelly and Luijkx made a complaint to the Ombudsman who upheld their complaint on grounds that it was unreasonable, unjust and improper for the provider not to remediate the damage, and the Provider was also ordered to compensate them for inconvenience in the sum of €20,000. The entire complaint centred on the question of whether cover was properly declined having regard to the terms of the contract of the insurance and the evidence as to the cause of the damage. The Provider appealed the decision maintaining that the Ombudsman was guilty of serious and significant error in construing the definitions of “structure” in the policy.

The Ombudsman’s jurisdiction to consider and to determine complaints is created by part 5 of the Financial Services and Pensions Ombudsman Act 2017 and more particularly under Section 60. The Ombudsman may order redress including financial redress for the complainant as he considers appropriate. Any financial redress shall be such amount as the Ombudsman deems just and equitable having regard to all the circumstances which shall not exceed any actual loss of benefit under the scheme concerned or the statutory cap under Section 60(50). The Ombudsman noted that the fact of the application of the policy had to be subject of expert engineering analysis indicated the complexity of the contractual provision and he did not accept the provider’s position. He believed that any reasonable examination of the circumstances of the complaint indicated that the defect was with the structure.

The jurisdiction to order compensation by the Ombudsman is provided for in Section 60 (40) (d) which empowers the Ombudsman to pay an amount of compensation to the complainants for any loss, expense or inconvenience sustained by the complainants as a result of the conduct complained of. The level of compensation is however capped by this section at a monetary sum of €250,000. In this case a sum of €20,000 was awarded by the Ombudsman.

The Appeal:

On Appeal the decision of the Ombudsman was upheld and it noted that structure under the policy is defined as including “load bearing parts of … roofs” and accordingly that the trusses are part of the structure. The Court was satisfied that the Ombudsman was entitled to find that it was unreasonable for the provider not to accept that the damage was caused by a defect in the design, construction, material, components, and workmanship of the trusses and therefore covered by the policy. Furthermore, the Court was satisfied that the level of compensation ordered was within a range that was reasonable and they affirmed the decision and directions of the Ombudsman.

Niamh O’Connor| Partner

MDM Solicitors | 18 South Mall, Cork, T12 WR97

T: +353 (21) 239 0620


Kinder Surprise Recall

The Food Safety Authority (“FSAI”)  has been contacted by consumers who have advised that they have purchased some Kinder Surprise Chocolate Eggs which are now being recalled due to a link with an outbreak of salmonella.

The Food Safety Authority of Ireland have said that there have been ten cases of food poisoning linked to the chocolate, a number which have involved young children.  The Irish cases have involved the same strain of salmonella that has been detected in the UK and outbreaks have also been reported in a number of other European countries.

The batches currently being recalled are the Kinder Surprise 20g egg, and the Kinder Surprise 20g 3-pack of eggs, with best before dates between the 11th July 2022 and the 7th October 2022.

The Chief Executive of the FSAI, Dr Pamela Byrne, has advised that if anyone has any of the affected product at home, not to eat it.  The FSAI has said it is liaising with the Department of Health and the investigation into the outbreak is ongoing.  The most common symptom of salmonella food poisoning is diarrhoea, which can sometimes be bloody, other symptoms may include fever, headache, and abdominal cramps.  The elderly, infants and those with impaired immune systems are more likely to have more severe illness.

Retailers are being asked to remove the implicated products from sale and display, points of sale,  wholesalers are requested to contact affected customers and customers have been urged not to consume such products.

If you have been affected, we at MDM can discuss this with you and advise you on your rights and can assist anyone affected.

If you are a wholesaler, retailer or consumer do not hesitate to contact our offices on 021 239 0620 or e-mail us at for more information.