Michael Hickey

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Baker
Judgment Date18 Jan 2017
Neutral Citation[2017] IEHC 20
Docket Number[H:IS:HC: 2016: 000019]

[2017] IEHC 20

THE HIGH COURT

Baker J.

[H:IS:HC: 2016: 000019]

IN THE MATTER OF PART 3, CHAPTER 4 OF THE PERSONAL INSOLVENCY ACTS 2012 – 2015

AND IN THE MATTER OF MICHAEL HICKEY OF KILMACOMMA HILL, CLONMEL, WATERFORD (THE DEBTOR)

AMD IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 115A (9) OF THE PERSONAL INSOLVENCY ACT 2012 AS AMENDED

Insolvency – The Personal Insolvency Acts 2012–2015 – Rejection of Personal Insolvency Arrangement ('PIA') by creditors – Disposal of private residence – Review – O. 76 (A) of the Rules of the Superior Courts – Limitation to time to bring application under. s. 115A (9) of the Personal Insolvency Act 2012 – The Interpretation Act, 2005

Facts: The sole issue in the present application was whether the debtor was entitled to bring an application by way of an appeal under s. (9) of the Personal Insolvency Act 2012 as the prescribed statutory time limit had expired. The debtor argued that the personal insolvency legislation indentified 17 different time limits and only s. 119A and s. 115A of the 2012 Act had used the word 'after' and hence, the use of the word 'after' was intentional.

Ms. Justice Baker dismissed the applicant's application. The Court held that the interpretations contained under s. 18 of the Interpretation Act, 2005 were meant to bring clarity and uniformity and it did not mean that the prescription of two time limits in the same Act was meant to contradict each other. The applicant had lodged the Notice of Motion to bring the requisite application after the expiry of the 14-day time limit. The Court noted that the day on which the creditors' meeting was held was to be included to calculate the time limit that began to run for the filing of an application under s. 115A of the 2012 Act.

JUDGMENT of Ms. Justice Baker delivered on the 18th day of January, 2017.
1

One matter falls for determination in this judgment, the question of the time limit for the bringing of an application pursuant to s. 115A(9) of the Personal Insolvency Acts 2012 – 2015 ('the Acts').

2

Section 115A, inserted by the amending legislation of 2015, provides for a court review and approval of the coming into effect of a proposed Personal Insolvency Arrangement ('PIA') rejected by creditors in certain circumstances, with a view to enabling the debtor not to dispose of an interest in, or cease to occupy, all or part of his or her principal private residence.

3

Michael Hickey ('the debtor') made a proposal for a PIA under the Acts and a meeting of creditors was held in accordance with the provisions of the Act on 9th September, 2016. He did not obtain the requisite support for the approval of the PIA, albeit Permanent TSB, the mortgagee which held security over his principal private residence, voted for the arrangement. The debtor then sought to invoke the provisions of s. 115A(9) and the sole question for determination in this case is whether the debtor was in time in lodging the application. An objection by KBC was lodged in respect of the application pursuant to s. 115A (3) of the Act on 5th October, 2016 and the question of time was raised as a procedural objection.

4

Certain other matters were raised by way of objection, but it has been agreed that I would determine the procedural objection by way of a preliminary issue.

5

Section 115A(2) of the Act makes provision for the time limit for the bringing of an application to the Court under s. 115A(9):

'(2) An application under this section shall be made not later than 14 days after the creditors' meeting referred to in subsection (16) (a) or, as the case may be, receipt by the personal insolvency practitioner of the notice of the creditor concerned under section 111A (6) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), shall be on notice to the Insolvency Service, each creditor concerned and the debtor. ...'

Section 111A does not apply as that section relates only to the approval of a proposed PIA when there is only one creditor.

6

Order 76(A) of the Rules of the Superior Courts provides that an application under s. 115A (9) shall be brought by notice of motion. The motion dated 1st September, 2016 was lodged by e-mail on Friday, 23rd September, 2016, and stamped and lodged in the Central Office of the High Court on 28th September, 2016. For the purposes of the issue to be determined in this application no argument is made that the lodging of the notice of motion by e-mail is sufficient lodgement by 'electronic means' in accordance with O. 76(a), r. 4, and it is accepted that neither the personal insolvency practitioner ('PIP') or the solicitor instructed to act in the prosecution of the application is an authorised 'electronic user' within the meaning of r. 4(1) of that Order. I do not therefore intend addressing that issue further.

7

The meeting of creditors was held on 9th September, 2016 and if that day is to be included in the 14 day period prescribed by s. 115A(2) the time limit expired on 22nd September, 2016, a Thursday. If the day of the creditors' meeting is not to be reckoned time expired on 23rd September, 2016, a Friday.

Section 18(h) of the Interpretation Act 2005 ('The Act of 2005')
8

Section 18(h) of the Act of 2005 provides as follows:—

'(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;'

9

That section is not materially different from s. 11 of the Interpretation Act, 1937, and the statutory provisions have been considered in a number of cases to which I now turn.

10

In McGuinness v. Armstrong Patents Limited [1980] I.R. 289 McMahon J. was considering the meaning of the provisions of s. 11(2)(b) of the Statute of Limitations 1957 which provided the then relevant period for the bringing of an proceedings for damages for personal injuries. The statutory provision was expressed in the negative and provided that an action shall:—

'...not be brought after the expiration of three years from the date on which the cause of action accrued.'

11

The plenary summons would have been issued within time if the day on which the cause of action accrued was excluded from the computation of the three year period, but McMahon J. held that the date of accrual did come to be included within the statutory time limit in the light of the Act of 1937.

12

That judgment is not dispositive of the question before me as the word 'after' appeared in the Statute of Limitations Act and is not a word used in s. 11(2) (b) of the Act of 1957 as indicating or defining a time period which rather is to be seen as identified by the word 'from'.

13

The next case in sequence is the judgment of Ellis J. in The State (Hamad) v. North Eastern Health Board [1982] 1 JIC 2001 which called for the interpretation of a provision of the Health (Removal of Officers and Servants) Regulations, 1971 by which was provided for the consideration by the Chief Executive of representations made 'before the expiration of seven days after the giving of such notice'.

14

Ellis J. distinguished the judgement of McMahon J. in McGuinness v. Armstrong Patents, and said that the period of time specified in the Interpretation Act is distinguishable in a statute where

'... the period of time is expressed to begin or be reckoned from particular day...

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8 cases
  • Re Varma, a Debtor
    • Ireland
    • High Court
    • 6 Abril 2017
    ...concerned. The time limit is mandatory and no provision exists for the extension of time: Re Hickey & Personal Insolvency Acts [2017] IEHC 20. 8 The process of application to the court under s. 115A having been commenced by the debtor's notice of motion, s. 115A(3) provides for service......
  • Re Varma (a debtor)
    • Ireland
    • High Court
    • 6 Abril 2017
  • Re Finnegan (a debtor)
    • Ireland
    • High Court
    • 11 Febrero 2019
    ...the fourteen day period described by s.115A(2) is not capable of extension. This follows from a decision of Baker J. in Michael Hickey [2017] IEHC 20. The language used in the relevant provisions 62 Turning to the relevant statutory provisions, it is useful, in the first instance, to consid......
  • Re Hickey (a debtor) No.3
    • Ireland
    • High Court
    • 31 Mayo 2018
    ...a notice of motion for an order pursuant s. 115A(9) of the Act (an ‘application under s. 115A’) on 23 September 2016. 8 Judgment in In Re Hickey (No. 1) [2017] IEHC 20 was delivered on 18 January 2017 by which, at para. 33, his application under s. 115A was held to be out of time: ‘[T]he de......
  • Request a trial to view additional results

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