ACC Bank Plc v Sweeney

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 16 August 2023
• Neutral Citation: [2023] IEHC 503
• Court: High Court
• Docket Number: 2012 No. 780 S

Between

ACC Bank Plc

Plaintiff

and

Seamus (Otherwise Shay) Sweeney

Defendant

[2023] IEHC 503

2012 No. 780 S

THE HIGH COURT

Summary judgment – Leave to issue execution – Delay – Moving party seeking leave to issue execution – Whether the moving party had met the threshold for the grant of leave to issue execution

Facts: Judgment was entered in the sum of €646,913.72 against the defendant, Mr Sweeney, 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. A judgment mortgage was certified on 10 December 2012. On 13 April 2022, Pepper Finance Corporation (Ireland) DAC (Pepper Finance) filed a motion seeking to have itself substituted for ACC Bank plc (ACC Bank) as the plaintiff in the proceedings and an order, pursuant to Order 42, rule 24 of the Rules of the Superior Courts (RSC), granting it leave to issue execution in respect of the 2012 judgment. The motion was adjourned twice to allow supplemental affidavits to be filed by the moving party. The first category of reasons put forward in an attempt to explain the delay in executing the 2012 judgment related to the status of ACC Bank. It was said that ACC Bank was going through a “complex restructuring” as a consequence of the global financial crisis. The second category related to the Code of Conduct on Mortgage Arrears which was described as having placed “severe limitations on banks in contacting delinquent borrowers”. Reference was also made to the decision in Start Mortgages Ltd v Gunn [2011] IEHC 275, which identified a lacuna in the transitional provisions under the Land and Conveyancing Law Reform Act 2009. The third category related to the sale of a property owned by the defendant. It appeared that ACC Bank held a mortgage over a property in County Limerick and that the property was sold by a receiver in July 2020. The final category related to the transfer of the loan portfolio to Rabobank on 17 December 2018 and the subsequent transfer, on 23 August 2019, to Newgrange Loan Acquisitions DAC with Pepper Finance Ireland as nominee. The delay of some two and a half years between the transfer of the loan portfolio and the filing of the motion seeking leave to issue execution was explained as follows: first, time had been required to verify the identity of the defendant in accordance with the anti-money laundering legislation; secondly, time had to be allowed for the defendant to engage in respect of his loan; and thirdly, enforcement action could not have been taken during part of this time period because of the public health restrictions introduced in response to the coronavirus pandemic.

Held by Simons J that the moving party had failed to meet the threshold for the grant of leave to issue execution as per Smyth v Tunney [2004] IESC 24. He found that none of the reasons for the delay prior to March 2020, i.e. prior to the introduction of public health restrictions in response to the coronavirus pandemic, represented a good explanation for the delay; this amounted to a period of unexplained delay of approximately eight years. Accordingly, he refused the application for leave to issue execution pursuant to Order 42, rule 24 RSC. He held that this finding made it unnecessary to consider the detail of the related application to substitute Pepper Finance for ACC Bank as the plaintiff in the proceedings. He held that this was because a substitution order would be of no practical benefit in circumstances where the 2012 judgment could not be enforced. He refused all reliefs sought in the motion of 13 April 2022.

Simons J held that, for the reasons explained in ACC Bank plc v Sweeney [2023] IEHC 356, the defendant was entitled to recover his costs of the motion as against the plaintiff pursuant to s. 169 of the Legal Services Regulation Act 2015, such costs to include all reserved costs. Simons J held that the costs were to be adjudicated under Part 10 of the 2015 Act in default of agreement between the parties. He held that the costs order was stayed in the event of an appeal.

Applications refused.

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 16 August 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 The hearing of the applications had been adjourned to allow Pepper Finance to file a supplemental affidavit addressing, if and insofar as possible, a shortcoming identified in its proofs: ACC Bank plc v. Sweeney [2023] IEHC 356. An affidavit was duly filed, and the hearing resumed on 31 July 2023. Judgment was reserved until today.

ORDER 42, RULE 24

3 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.

4 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.

5 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.”

6 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.”

7 The cases in which leave to execute has been granted can conveniently be considered as falling into four broad categories. It should be emphasised that the categories of cases are, of course, not closed. The illustrative list that follows is not intended to be exhaustive.

8 The first category is where the delay has been caused by the conduct of the indebted party. For example, on the facts of Smyth v. Tunney, the indebted party had, by their conduct, contributed to the delay in the execution of the relevant costs orders. In particular, they had previously demanded that execution be deferred until all proceedings between the parties were disposed of. Other examples would include cases where the indebted party has evaded earlier attempts at execution.

9 The second category is where there has been a change in the financial circumstances of the indebted party. In Mannion v. Legal Aid Board [2018] IEHC 606, for example, the High Court (Noonan J.) granted leave in a case...