Jason Hayde v H & T Contractors Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 February 2021
• Neutral Citation: [2021] IEHC 103
• Docket Number: 2020 No. 176 CA
• Court: High Court
• Date: 18 February 2021

Between

Jason Hayde

Plaintiff

and

H & T Contractors Limited

Defendant

[2021] IEHC 103

2020 No. 176 CA

THE HIGH COURT

CIRCUIT APPEAL

Appearances

Laurence Masterson for the plaintiff instructed by Hennessy & Perrozzi Solicitors

No appearance on behalf of the defendant company

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 February 2021

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court (Her Honour Judge Linnane). The Circuit Court had refused the plaintiff's application for leave to seek an execution order pursuant to Order 36, rule 9 of the Circuit Court Rules. Such leave had been necessary in circumstances where the judgment which is sought to be enforced had been entered more than six years previously.

PROCEDURAL HISTORY

2 These proceedings arise out of the construction of a dwelling pursuant to a contract entered into between the plaintiff and the defendant company. The plaintiff alleges that the construction works were defective. The proceedings issued before the Circuit Court on 26 January 2011. The plaintiff subsequently obtained judgment in default of appearance on 28 June 2011, and damages were assessed on 24 October 2011. The relevant order of the Circuit Court reads as follows:

“THE COURT DOTH ORDER that the Plaintiff do recover from the Defendant the sum of €22,408.00 together with the costs of the Proceedings to be taxed in default of agreement, such costs to include any reserved costs.”

3 The costs were subsequently “taxed”, i.e. measured, by the County Registrar on 17 October 2014. The certificate of taxation was not, however, taken up until 1 July 2020. No step had been taken to enforce the judgment prior to that date.

4 In circumstances where more than six years had elapsed since the entering of the judgment, it had been necessary for the plaintiff to apply for leave to seek an execution order pursuant to Order 36, rule 9 of the Circuit Court Rules.

5 The application is grounded on the affidavit of Mr. John Hennessy, Solicitor. The explanation for the delay is set out as follows at paragraphs 5 and 6 of the affidavit.

“5. The Plaintiff's costs were taxed and ascertained in the sum of €15,258.08 on October 17th, 2014. However, the Certificate of Taxation did not issue until July 1st, 2020. I beg to refer to a copy of the said certificate upon which marked with the letter ‘JH3’ I have signed my name prior to the swearing hereof.

6. I say that the Plaintiff did not issue execution of the said order before now, because of the expensive cost of obtaining the certificate of taxation: €1,190.00, eventually paid by this firm of solicitors. I say the payment of same was low in priority due to the nature of such cases and the difficulty to recover such moneys, however, it was eventually decided by the partners to pursue, on behalf of the Plaintiff the damages and costs.”

6 An application for leave to seek an execution order was made before the Circuit Court on behalf of the plaintiff on 13 October 2020. The Circuit Court refused leave. A notice of appeal was filed on behalf of the plaintiff. The appeal came on for hearing before me on 15 February 2021. There was no appearance on behalf of the defendant company on that occasion. Two affidavits of service have been filed which confirm that the notice of appeal was properly served on the defendant company, and that it was subsequently notified of the hearing date.

DISCUSSION

7 Order 36, rule 9 of the Circuit Court Rules provides as follows.

9. Every decree of the Court, and every judgment in default of appearance or defence, shall be in full force and effect for a period of twelve years from the date thereof, and an execution order based on any such decree or judgment may be issued in the Office within the said period, but not after the expiration of six years from the date of such decree or judgment without leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.

8 As can be seen, a judgment in default of appearance shall be in full force and effect for a period of twelve years. However, if a party has not sought an execution order within the first six years of that period, it is necessary to apply to a judge of the Circuit Court for an execution order. Such an order cannot, after the lapse of six years, simply be issued in the Office without leave.

9 The rule differs from the equivalent provision under the Rules of the Superior Courts in that there is, in effect, an outer time-limit of twelve years. There is no outer time-limit prescribed under Order 42 of the Rules of the Superior Courts. Presumably, the inclusion of a twelve-year period in the Circuit Court Rules is intended to coincide with the period prescribed under section 11(6)(a) of the Statute of Limitations 1957, which provides that an action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable. (This is how the rule appears to be understood by the learned authors of Dowling and Martin, Civil Procedure in the Circuit Court (3rd Ed, 2018, Round Hall)).

10 It is open to question whether the issuance of an execution order represents an action brought upon a judgment. Certainly, there is authority to the effect that the renewal of an order for possession is not subject to a twelve-year time-limit. The High Court (Gearty J.) held in Start Mortgages DAC v. Piggott [2020] IEHC 293 that the process by which a possession order, already obtained, is renewed, is not an action upon a judgment in the sense intended by the Statute of Limitations.

11 This distinction between the wording of the Circuit Court Rules and...