Carlisle Mortgages v John Sinnott

CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date20 May 2021
Neutral Citation[2021] IEHC 288
Docket Number2008 No. 953 SP
Date20 May 2021
Carlisle Mortgages
John Sinnott

[2021] IEHC 288

2008 No. 953 SP


Execution – Extension of time – Order of possession – Plaintiff seeking an extension of time within which to issue execution – Whether the lapse of time had caused prejudice to the defendant

Facts: The plaintiff, Carlisle Mortgages (the lender), applied to the High Court for an extension of time within which to issue execution. The application was made pursuant to Order 42, rule 24 of the Rules of the Superior Courts. The plaintiff sought to issue execution in the form of an order of possession under Order 47 directed to the County Registrar of Wexford. The application was made pursuant to a notice of motion issued on 30 March 2021. The motion came on for hearing before Simons J on 17 May 2021. The defendant, Mr Sinnott (the borrower), was represented on that occasion by his solicitor. The solicitor made a submission in opposition to the application for leave to execute. First, it was said that the application was not urgent. If and insofar as the lender cited concerns in respect of the Statute of Limitations, these were said to be misplaced. Reference was made to the judgment of the High Court (Gearty J) in Start Mortgages DAC v Piggott [2020] IEHC 293 in support of the proposition that the making of an application under Order 42, rule 24 is not subject to the twelve year limitation period. Secondly, reference was made to the fact that the borrower’s spouse was in ill-health, and it was suggested that it was inappropriate to make an application at the time. It was also said that it would be harsh to grant leave to execute having regard to the ongoing coronavirus pandemic. Thirdly, and more generally, it was suggested that efforts were being made to reach some form of resolution in relation to the proceedings.

Held by Simons J that it was evident that the lender made reasonable efforts to obtain an execution order within the twelve-month period but was unable to do so. Simons J found that the delay was attributable to matters outside the control of the lender; more generally, the delay since 27 July 2009 was attributable to concerns as to whether an order of possession could be effected safely and to negotiations with the borrower. Simons J held that the lapse of time since 8 July 2019 had not caused any prejudice whatsoever to the borrower; rather, the borrower and his spouse had been allowed to remain in occupation of the mortgaged property for a further period of time, notwithstanding that no payments had been made in respect of the outstanding loan since May 2009. Simons J noted that, whereas the court had sympathy for the borrower’s spouse given her ill-health, the fact remained that the High Court order of 27 July 2009 remained unexecuted. Simons J held that the interests of justice were met by imposing a short stay (two months) on the effect of the order granting leave to execute. Simons J held that the lender could not fairly be criticised for having sought to bring its motion on for hearing as a matter of urgency, so as to ensure that the application for leave to execute was moved within twelve years of the original substantive order (27 July 2009).

Simons J proposed making an order for leave to execute pursuant to Order 42, rule 24. Simons J held that a stay would be placed on that order for a period of two months.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 20 May 2021


This matter comes before the High Court by way of an application for an extension of time within which to issue execution. The application is made pursuant to Order 42, rule 24 of the Rules of the Superior Courts. The plaintiff seeks to issue execution in the form of an order of possession under Order 47 directed to the County Registrar of Wexford.


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. That rule provides as follows.

“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.”


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. The Supreme Court held that 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. Even if a good reason is given, the court must consider counterbalancing allegations of prejudice.


The discretionary nature of the relief has recently 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.”


The cases in which leave to execute has been granted can conveniently be considered as falling into three broad categories. 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.


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 where the party seeking execution had, at all material times during the initial six year period, believed that the indebted party did not have the capacity to pay the judgment debt and that, accordingly, there was no point in attempting execution. The application for leave to execute outside the six year period was allowed in circumstances where the court was satisfied that the judgment creditor had reasonable grounds to conclude that the indebted party's financial circumstances had significantly improved as a result of her having settled other legal proceedings.


The third category is where execution has been deferred pending an attempt by the parties to reach an accommodation whereby alternative arrangements for the payment of the underlying debt might be entered into. 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. There is now an established line of case law where leave to issue execution, in the form of orders of possession, has been granted in mortgage proceedings where the explanation for the delay is that the creditor had sought to negotiate a resolution with the debtor. See, for example, Start Mortgages DAC v. Gawley [2020] IECA 335; Start Mortgages DAC v. Piggott [2020] IEHC 293; and Ulster Bank Ltd v. Quirke [2021] IEHC 199.


The categories of cases are, of course, not closed. I am satisfied that cases where the delay in execution is attributable to circumstances outside the control of the person seeking to enforce the judgment represent a fourth category. In the absence of any prejudice to the indebted party, leave to execute should not normally be refused unless there has been some culpable delay by the party seeking to execute.



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3 cases
  • Mars Capital Ireland DAC v Hunter
    • Ireland
    • High Court
    • 17 June 2022
    ...circumstances outside the control of the person seeking to enforce the judgment. An example is provided by Carlisle Mortgages v. Sinnott [2021] IEHC 288. There, leave to issue execution had been granted where the delay had been caused, initially, by a difficulty in serving the order and, th......
  • Start Mortgages DAC v Noel Rogers and Una Rogers
    • Ireland
    • High Court
    • 2 November 2021
    ...of O. 42, r. 20 and, thus, expiring after one year. The fact that this is so is noted by Simons J. in Carlisle Mortgages v. Sinnott [2021] IEHC 288 as is the fact that the lender in that case had queried the correctness of the Central Office's interpretation and application of the rules (se......
  • Irish Nationwide Building Society v Con Heagney
    • Ireland
    • High Court
    • 14 January 2022
    ...for the failure of the applicant to seek leave to issue execution years ago. 63 As Simons J. observed in Carlisle Mortgages v. Sinnott [2021] IEHC 288, it is socially desirable that a homeowner who encounters financial difficulties should retain his home if the lender can be repaid. In a ca......

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