ACC Bank Plc v Thomas Joyce, Patricia Joyce, Niall O'Meachair and Valwick Properties

JurisdictionIreland
JudgeMr. Justice Denis McDonald
Judgment Date22 February 2022
Neutral Citation[2022] IEHC 92
CourtHigh Court
Docket Number[2010 No. 9146 P]
Between
ACC Bank Plc
Plaintiff
and
Thomas Joyce, Patricia Joyce, Niall O'Meachair and Valwick Properties
Defendants

[2022] IEHC 92

[2010 No. 9146 P]

THE HIGH COURT

COMMERCIAL

Leave to issue execution – Lapse of time – Prejudice – Applicant seeking an order granting leave to issue execution as against the third defendant – Whether the applicant provided any reason to explain the lapse of time in the case

Facts: The applicant, Cabot Financial (Ireland) Ltd (Cabot), by notice of motion dated 12th May 2021, sought an order pursuant to O. 42, r. 24 granting Cabot leave to issue execution as against the third defendant, Mr O’Meachair, on foot of a judgment obtained by ACC Bank plc against him on 15th November 2010 in the sum of €271,637.31 together with the costs of the proceedings (limited to six-day costs). In circumstances where that judgment was more than six years old, the leave of the High Court was required before any steps were taken to execute the judgment. Cabot had previously sought an order pursuant to O. 17, r. 4 substituting it as plaintiff in the proceedings in place of ACC Bank plc. At a hearing on 22nd October 2021, McDonald J made such an order. He adjourned the application made by Cabot for an order pursuant to O. 42, r. 24 in order to allow Cabot an opportunity to place further evidence before the court in relation to the lapse of time since the judgment was obtained on 15th November 2010 and to give Mr O’Meachair the opportunity to place further evidence before the court in relation to any prejudice claimed to have been sustained by him as a consequence of the lapse of time in executing the judgment against him. A further hearing took place of the application under O. 42, r. 24 on 16th December 2021. Mr O’Meachair made the point that, in light of the long period which had elapsed since judgment was given, he had been led to believe that it would not be enforced. He also raised an issue in relation to the manner in which one of his assets had previously been realised by ACC Bank plc in part discharge of the judgment debt. In particular, he complained strongly that ACC Bank plc had failed to realise value for the asset. He further raised issues in relation to the net amount due on foot of the judgment. In addition, he sought to rely on Article 6.1 of the European Convention on Human Rights and on the decision of the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459 and related authorities.

Held by McDonald J that Cabot had wholly failed to provide a reason that explained the long period of inactivity on its part or on the part of its predecessor in title, ACC Bank plc. In those circumstances, McDonald J was compelled to refuse the application of Cabot under O. 42 for leave to execute as against Mr O’Meachair the judgment obtained by ACC Bank Plc on 15th November 2010.

McDonald J’s provisional view was that Mr O’Meachair should be entitled to his costs as against Cabot; as a lay litigant, those would be limited to his out-of-pocket expenses.

Application refused.

JUDGMENT of Mr. Justice Denis McDonald delivered on 22 th February 2022

1

. This judgment addresses the relief claimed in para. 2 of the applicant's notice of motion dated 12 th May 2021 by which the applicant, Cabot Financial (Ireland) Ltd. ( “Cabot”) seeks an order pursuant to O. 42, r. 24 granting Cabot leave to issue execution as against the third named defendant, Mr. O'Meachair, on foot of a judgment obtained by ACC Bank plc against him on 15 th November 2010 in the sum of €271,637.31 together with the costs of the proceedings (limited to six-day costs). In circumstances where that judgment is now more than six years old, the leave of the court is required before any steps are taken to execute the judgment.

2

. It should be noted that Cabot had previously sought an order pursuant to O. 17, r. 4 substituting it as plaintiff in these proceedings in place of ACC Bank plc. At a hearing on 22 nd October 2021, I made such an order, after hearing submissions from counsel for the plaintiff and from Mr. O'Meachair who appeared in person. Although Mr. O'Meachair opposed the order under O. 17, r. 4, I was satisfied, on the basis of the evidence placed before the court, that such an order should be made. On that occasion, I adjourned the application made by Cabot for an order pursuant to O. 42, r. 24 in order to allow Cabot an opportunity to place further evidence before the court in relation to the lapse of time since the judgment was obtained on 15 th November 2010 and to give Mr. O'Meachair the opportunity to place further evidence before the court in relation to any prejudice claimed to have been sustained by him as a consequence of the lapse of time in executing the judgment against him.

3

. Both Cabot and Mr. O'Meachair availed of the opportunity to place further evidence before the court and a further hearing took place of the application under O. 42, r. 24 on 16 th December 2021. The evidence placed before the court by Cabot is examined further below. Insofar as the evidence of Mr. O'Meachair is concerned, he made the point that, in light of the long period which has elapsed since judgment was given, he had been led to believe that it would not be enforced. He also raised an issue in relation to the manner in which one of his assets had previously been realised by ACC Bank plc in part discharge of the judgment debt. In particular, he complained strongly that ACC Bank plc had failed to realise value for the asset. He further raised issues in relation to the net amount due on foot of the judgment. In addition, he sought to rely on Article 6.1 of the European Convention on Human Rights ( “ECHR”) and on the decision of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and related authorities. As explained further below, it seems to me that the Primor line of authority is inapplicable in the context of O. 42, r. 24.

4

. A number of the provisions of O. 42 are relevant to an application of this kind. In particular, O. 42, r. 23 and r. 24 are relevant. O. 42, r. 23 provides for a six-year period for execution on foot of a judgment. However, O. 42, r. 24 permits the court to extend the six-year period. These rules provide as follows:-

“23. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment, or the date of the order.

24. In the following cases, viz.:

  • (a) where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;

  • (b) where a party is entitled to execution upon a judgment of assets in futuro;

  • (c) where a party is entitled to execution against any of the shareholders of a company upon a judgment recorded against such company, or against a public officer or other person representing such company; the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried: and in either case the Court may impose such terms as to costs or otherwise as shall be just. Provided always that in case of default of payment of any sum of money at the time appointed for payment thereof by any judgment or order made in a matrimonial cause or matter, an order of fieri facias may be issued as of course upon an affidavit of service of the judgment or order and non-payment.”

5

. The principles to be applied on an application of this kind were considered by the Supreme Court in Smyth v. Tunney [2004] 1 I.R. 512. In that case, Geoghegan J. noted at p. 519 that:-

“Order 42, r. 24 does not set out any express criteria on foot of which the leave to execute after the six years may be granted or refused.”

6

. Notwithstanding the lack of any express criteria, Geoghegan J, identified that the court has a discretion on an application of this kind and that, to engage this discretion, the applicant has an obligation to provide some explanation for the lapse of time. In this context, he observed at p. 518:-

“…it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute out of time provided that there is some explanation at least for the lapse of time.”

7

. These are the principles to be applied in the exercise of the court's discretion under O. 42, r. 24. The discretionary nature of the power conferred by the rule was reiterated by the Court of Appeal in KBC Bank plc v. Beades [2021] IECA 41 where Whelan J. said at para. 67:-

“It is clear from the jurisprudence, particularly the decision of the Supreme Court in Smyth v. Tunney [2004] 1 I.R. 512, that O. 42, r. 24 is a discretionary order and reasons must be given for the lapse of time since the judgment or order during which execution did not occur. Even where a good reason is identified for the delay, the court can take into account counterbalancing arguments of prejudice. It is noteworthy that in Smyth v. Tunney, as in the instant case, orders sought to be executed had been made in the course of long running litigation, and leave to issue execution pursuant to O. 42, r. 24 had been made some twelve years or so later. It is also noteworthy that the reasons identified for lapse in time in Smyth v. Tunney ...

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5 cases
  • ACC Bank Plc v Sweeney
    • Ireland
    • High Court
    • 16 August 2023
    ...relevant judgment, for a period of some six years. Leave to issue execution was refused on the grounds of delay. In ACC Bank plc v. Joyce [2022] IEHC 92, the High Court (McDonald J.) rejected a submission that it had been necessary for the judgment creditor to await the finalisation of the ......
  • Mars Capital Ireland DAC v Hunter
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    • 17 June 2022
    ...relevant judgment, for a period of some six years. Leave to issue execution was refused on the grounds of delay. In ACC Bank plc v. Joyce [2022] IEHC 92, the High Court (McDonald J.) rejected a submission that it had been necessary for the judgment creditor to await the finalisation of the ......
  • Start Mortgages Designed Activity Company v Hanley
    • Ireland
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    • 10 July 2023
    ...two points in his second affidavit. First, reference is made to the judgment of the High Court (McDonald J.) in ACC Bank v. Joyce [2022] IEHC 92. On the facts of that case, it was held that the assignee of a judgment debt cannot absolve itself of legal responsibility for inactivity on the p......
  • ACC Bank Plc v Sweeney
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    • High Court
    • 3 July 2023
    ...instances, not least in a case where that would have entailed execution during a severe economic recession. 12 In ACC Bank plc v. Joyce [2022] IEHC 92, the High Court (McDonald J.) rejected a submission that it had been necessary to await the transmission of the interest in a judgment debt ......
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