Wednesday, July 20, 2022

High Court reporters

The High Court has extended an injunction preventing an alleged former owner of lands in Co Wicklow earmarked for a data centre from trespassing on the property.

Mr Justice Tony O’Connor granted the order in favour of Fane Investments Limited restraining Mr Brian McDonagh, which it says is a former owner of lands it owns at Mount Kennedy, Kilpedder in Co Wicklow, from trespassing and interfering with the 82-acre property.

The judge also dismissed a separate pre-trial motion brought by Brian McDonagh and his brothers Maurice and Kenneth McDonagh against Fane, a related company called Quanta Capital Investments Ltd, and Mr Mel Sutcliffe who is a director of the firms, that also concerns the site.

The McDonaghs have sued those parties where they seek damages and various reliefs including an order requiring the defendants to specifically perform a 2017 agreement to enter into a 50-50 partnership.

Under that arrangement the brothers claim that the parties would develop a data centre on the lands through a Special Purpose Vehicle (SPV).

However, they claim that the defendants failed to comply with their obligations under the agreement. The defendants deny the claims.

Represented by Frederick Gilligan Bl, instructed by solicitor Carrie McDermott of MDM Solicitors, the defendants claim that the agreement never became legally binding because the McDonaghs failed to perform certain conditions included in the proposed partnership deal.

Injunction

In their pretrial motion the brothers sought orders including an injunction preventing the defendants from marketing, leasing or disposing of the lands in question, pending the outcome of the full hearing of their claim.

In his submissions to the court seeking the injunction Brian McDonagh told the court that it was their cases that he and his brothers had been “cheated” by the defendants, and that they would suffer irreparable damage if the lands were sold before the dispute has been resolved.

Mr Gilligan said that the injunction against his clients should not be granted.

The court heard that the lands at the centre of the dispute are currently green fields used for grazing animals, planning permission for a data centre has been obtained for the site.

In his rulings on Wednesday Mr Justice O’Connor said he was not prepared to grant the orders sought as part of the McDonaghs’ claim.

While he was not making any final determination in the matter, the judge said he was satisfied that damages would be an adequate remedy should the McDonaghs succeed in their action.

In its motion Fane, which says it acquired the lands from Ulster Bank in 2021, claimed that Mr Brian McDonagh, Drummin, Delgany, Co Wicklow, had been changing locks on the gates and have impeded Fane, and its agents from accessing the lands.

In June the High Court granted Fane a temporary injunction restraining Brian McDonagh from trespassing on or interfering with the lands.

Mr McDonagh opposed the application and denied any wrongdoing. He said that he had accessed the lands where his wife has kept two horses for some 15 years, and that they have grazing rights.

Ruling on Fane’s motion the Judge said he was satisfied to continue the injunction Fane sought.

He was satisfied from the evidence that Brian McDonagh was not the owner of the lands, and at best had an interest in the property through an SPV.

Horses

In regard to the horses on the lands, which he said were innocent parties, the judge said the parties should make arrangements between themselves for their removal.

If nothing could be agreed, then the Judge said Fane had the court’s permission to bring fresh proceedings seeking to have them removed from the lands.

The judge also made directions in respect of both actions and set out a timetable for the exchange of documents and pleadings in the disputes.

The judge said he was doing this with a view of having the matters before him resolved by the courts as soon as possible. The matter was adjourned by the judge to a date later this month

The court previously heard that the McDonagh brothers have been involved in lengthy proceedings concerning the lands with Ulster Bank and receivers it had appointed over the lands.

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