ACC Bank Plc v Sweeney

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 03 July 2023
• Neutral Citation: [2023] IEHC 356
• Docket Number: 2012 No. 780 S

Between

ACC Bank Plc

Plaintiff

and

Seamus (Otherwise Shay) Sweeney

Defendant

[2023] IEHC 356

2012 No. 780 S

THE HIGH COURT

Appearances

Neil Rafter for the moving party instructed by OSM Partners

Darragh Haugh for the defendant instructed by David Punch & Co. Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 3 July 2023

INTRODUCTION

1 This ruling is delivered in respect of two related applications as follows. First, Pepper Finance Corporation (Ireland) DAC (“ Pepper Finance”) seeks to have itself substituted for ACC Bank plc (“ ACC Bank”) as the plaintiff in these proceedings. Secondly, Pepper Finance then seeks an order, pursuant to Order 42, rule 24 of the Rules of the Superior Courts, granting it leave to issue execution in respect of a judgment entered on 12 September 2012.

2 One of the principal issues to be addressed in this ruling is whether an adjournment should be granted so as to allow Pepper Finance to file a further affidavit remedying the shortcomings in its proofs (if possible).

PROCEDURAL HISTORY

3 The within proceedings take the form of summary proceedings. Judgment was entered against the defendant in the Central Office of the High Court on 12 September 2012 in circumstances where he had failed to enter an appearance to the proceedings. Judgment was entered in the sum of €646,913.72. It appears, although this is not stated on affidavit, that a judgment mortgage may have been certified on 10 December 2012.

4 There were no further steps taken in the proceedings until the year 2022. On 13 April 2022, the motion the subject-matter of this ruling was issued. Pepper Finance seeks to have itself substituted for ACC Bank as the plaintiff in these proceedings; and then seeks an order, pursuant to Order 42, rule 24, granting it leave to issue execution in respect of the 2012 judgment.

5 The motion initially came on for hearing before the High Court (Coffey J.) on 4 July 2022. The motion was one of a number of similar applications listed before the High Court on that date. Most, if not all, of the applications were adjourned in circumstances where the court considered that the grounding affidavits in each case did not provide an adequate explanation for the delay in seeking to execute the respective judgments. The motions were adjourned to allow Pepper Finance to file further affidavits remedying the shortcomings in its proofs.

6 The motion in the present proceedings was adjourned until 19 December 2022, with directions as to the filing of further affidavits. On the adjourned date, the defendant was given liberty to enter an appearance to the proceedings in order to contest the motion. (It will be recalled that judgment had previously been entered against the defendant because of his failure to enter an appearance in 2012). The motion was transferred to the Non-Jury List; thereafter, in March 2023, the motion was allocated a hearing date of 26 June 2023. The motion came on for hearing before me on that date.

ORDER 42, RULE 24

7 A party who has the benefit of an order or judgment is generally required to execute same within a period of six years. If this is not done, then it is necessary to make an application for leave to issue execution pursuant to Order 42, rule 24 of the Rules of the Superior Courts.

8 The grant of leave to issue execution under Order 42, rule 24 is discretionary. The criteria governing the exercise of this discretion have been set out in Smyth v. Tunney [2004] IESC 24, [2004] 1 I.R. 512. There, the Supreme Court held that it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute following the lapse of six years from the date of the judgment or order, provided that there is some explanation at least for the lapse of time. The Supreme Court went on to state that, even if a good reason is given, the court must consider any counterbalancing allegations of prejudice.

9 The discretionary nature of the relief has been reaffirmed by the Court of Appeal in KBC Bank plc v. Beades [2021] IECA 41 (at paragraph 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 included that the applicants had made a number of unsuccessful attempts to execute.”

10 The Court of Appeal provided further elaboration on the legal test as follows in Ulster Bank Ireland Ltd v. Quirke [2022] IECA 283 (at paragraphs 59 and 60):

“I do not think that it is open to doubt that the threshold set by Smyth v Tunney is a low one, but it is nonetheless a threshold that must be met. As Simons J. said in Hayde v H & T Contractors, at para.21, ‘ The threshold is not particularly high: it is not necessary to give some unusual, exceptional or very special reasons for the delay. It is nevertheless a threshold which has to be satisfied: the threshold albeit minimal is not meaningless.’

As to whether or not any reason is required to explain the lapse of time for the period of six years from the date of the relevant judgment or order, I consider that this must be so. Once the period of six years from the date of the judgment or order has expired, an application is required for leave to issue execution, and the applicant, in order to succeed with an application, must explain the ‘lapse of time’ up to that point. If the application is made six years and one day after the judgment/order, the lapse of time in such a scenario can only refer to the period of time beginning on the date of the judgment or order and ending on the date of the application, because there has been no other lapse of time at that point, and yet an application is required. That being the case, the lapse of time during that period must always require explanation, regardless as to when the application is ultimately advanced. Following upon the expiration of six years from the date of judgment, every day before an application is made also forms part of the ‘lapse of time’ which in an overall sense must be explained.”

11 The Court of Appeal also expressed full agreement with earlier dicta from the High Court to the effect (i) that there is a public interest in ensuring that creditors are not deterred from engaging positively with judgment debtors for fear that they may be precluded thereafter from enforcing their judgment in the event that the engagement does not bear fruit, and (ii) that to require a judgment creditor to execute promptly could be counter-productive in many 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 to an assignee before taking steps to enforce that judgment. McDonald J. also observed that the assignee of a judgment debt cannot absolve itself of any inactivity on the part of the original judgment creditor.

DISCUSSION AND DECISION

13 As...