Proceedings should be brought against ‘persons unknown’ only in exceptional circumstances - Supreme Court

Court proceedings should be brought against “persons unknown” only in exceptional circumstances, the Supreme Court has held.

In a ruling delivered on Monday, the court said the High Court has jurisdiction to permit proceedings against unknown individuals but there are “principled and pragmatic reasons” for why exercising this ability should remain exceptional.

The procedure, said Mr Justice Gerard Hogan, “cuts across” the general constitutional principle that justice shall be administered in public. Proceeding against unnamed people is also apt to cause “confusion and uncertainty” not least where coercive enforcement of court orders is required, he said.

Pepper Finance

The court’s ruling comes in an appeal by financial fund Pepper Finance Corporation (Ireland DAC) against the Court of Appeal’s decision to set aside contempt orders made in its favour against unknown people occupying two north Dublin properties.

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The complexes at 31 Richmond Avenue in Fairview and 21 Little Mary Street had been owned by businessman Jerry Beades but the High Court granted possession in favour of IIB Homeloans in 2008.

Pepper purchased the defaulted loans and issued possession proceedings in late 2020 against “persons unknown”, who it said comprised about 20 people who refused to leave the buildings. The court made orders requiring the occupants to vacate.

The High Court made orders in October 2021 permitting gardaí to attach the occupants of the properties to bring them before the court over their alleged contempt of the orders. However, within two weeks the orders were discharged, on consent between the sides, as the occupants had yielded possession.

The residents claimed their failure to comply with the orders was because they had nowhere else to go, and some claimed they paid rent to Mr Beades over the years.

Despite the premises being vacated, the Court of Appeal allowed some of the occupants to appeal the contempt matter, which, that court found, was the equivalent of a criminal conviction.

Adequate steps

That court last year set aside the attachment and committal orders holding that the occupants had not been properly served with all the relevant legal documents. Pepper did not take adequate steps to ascertain the identities of people living in the building before serving them with the court’s orders, the court ruled.

In a judgment on behalf of a five-judge Supreme Court, Mr Justice Hogan said he does not fault Pepper for resorting to the expedient of suing “persons unknown” when it commenced its proceedings, “even if it could have done more to ascertain the identity of some of the occupants”.

However, a plaintiff runs the risk of complications in enforcing court orders at a later stage, he said. There is no reason why Pepper could not have amended the case to name individuals who were subsequently revealed to be occupying the flats, he said.

The failure by Pepper to personally serve each individual with an order to vacate and a penally endorsed order was “fatal” to its motion to have the occupants arrested to be brought before the court on alleged contempt of court orders.

The judge said he would dismiss the appeal and affirm the Court of Appeal’s decision, albeit for different and narrower reasons. His four colleagues agreed with his findings.