Pepper Finance Corporation (Ireland) DAC v Doyle and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 04 December 2023
• Neutral Citation: [2023] IEHC 662
• Court: High Court
• Docket Number: 2023 20 CA

Between

Pepper Finance Corporation (Ireland) DAC

Plaintiff

and

Matt Doyle

Marion Doyle

Bridget O'Connell (Deceased)

Defendants

[2023] IEHC 662

2023 20 CA

THE HIGH COURT

CIRCUIT APPEAL

Order for possession – Leave to issue execution – Order 36 of the Circuit Court Rules – Plaintiff seeking an order granting it leave to issue execution – Whether Order 36 of the Circuit Court Rules should be given a purposive interpretation so as to align it with Order 42 of the Rules of the Superior Courts

Facts: The plaintiff, Pepper Finance Corporation (Ireland) DAC, sought to execute an order for possession made by the County Registrar on 10 November 2008. The plaintiff issued a motion on 30 September 2022 seeking an order granting it leave to issue execution. The application was made pursuant to Order 36, rule 9 of the Circuit Court Rules. The motion also sought an order renewing the execution order first issued on 24 March 2010. The motion was refused by the Circuit Court (Judge O’Sullivan) by order dated 26 January 2023 on the grounds that more than twelve years had expired since the date of the decree or judgment sought to be enforced. The plaintiff filed an appeal against that order to the High Court. The appeal ultimately came on for hearing before Simons J on 20 November 2023. Counsel on behalf of the plaintiff invited the court to depart from the literal wording of Order 36. It was submitted that Order 36 should, instead, be given a purposive interpretation so as to align it with the equivalent rule under the Rules of the Superior Courts, i.e. Order 42, and more generally with the Statute of Limitations. The next argument advanced on behalf of the plaintiff was predicated on s. 22(6) of the Courts (Supplemental Provisions) Act 1961. Counsel on behalf of the plaintiff submitted that this indicated that, in cases of concurrent jurisdiction, the Circuit Court exercises a jurisdiction equivalent to that of the High Court in all respects, including, relevantly, in relation to the execution of judgments and orders. The plaintiff made a more general complaint to the effect that the imposition of a twelve year time-limit is ultra vires.

Held by Simons J that the fact, if fact it be, that the Statute of Limitations does not delimit the period within which a decree or judgment may be executed does not affect the interpretation of Order 36 of the Circuit Court Rules. He found that there was no doubt as to the intent of the Rules Committee in adopting Order 36. He held that it is apparent from the wording of s. 22(6) of the 1961 Act that it is concerned with the substance of the remedy which may be granted by the Circuit Court. He held that the Circuit Court can grant the same type of relief, redress or remedy as can the High Court; thus the Circuit Court can, in an appropriate case, grant an order for possession. He held that the section does not go further and prescribe that the procedural requirements in relation to the execution of judgments and orders must be equivalent. He held that no challenge to the validity of the Circuit Court Rules could be raised in the context of the application because the High Court, in determining the appeal, was exercising the statutory jurisdiction of the Circuit Court rather than its own original jurisdiction. He held that, just as the Circuit Court could not strike down the Circuit Court Rules, neither can the High Court in the exercise of its appellate jurisdiction. He held that Order 36 of the Circuit Court Rules precludes both the issuance of, and renewal of, an execution order after the expiration of twelve years from the date of the relevant decree or judgment; the judgment which it is sought to enforce in the present case is dated 10 November 2008. He held that the application for leave to execute must be refused; the twelve year period had already expired even before the motion was filed on 20 September 2022.

Simons J held that no order for costs would be made in circumstances where there was no attendance on behalf of the defendants, the Doyles and Ms O’Connell, and they could not, therefore, have incurred any recoverable costs.

Application refused.

Appearances

Rudi Neuman for the plaintiff instructed by AMOSS LLP

No attendance on behalf of the defendants

JUDGMENT of Mr. Justice Garrett Simons delivered on 4 December 2023

INTRODUCTION

1 This judgment is delivered in respect of an application for leave to issue execution. The application comes before the High Court by way of an appeal from the Circuit Court. Accordingly, the application falls to be determined by reference to the Circuit Court Rules rather than the Rules of the Superior Courts. The High Court is, in effect, exercising the Circuit Court's statutory jurisdiction rather than its own original jurisdiction.

2 There is a crucial distinction between the rules of the respective courts insofar as execution is concerned. Order 36 of the Circuit Court Rules provides that every decree of the Circuit Court shall be in full force and effect for a period of twelve years and that any execution order must be issued within the said period. Not only is there no comparable provision under the Rules of the Superior Courts, but the thrust of the case law is to the effect that there is no limitation period on the issuance of execution orders by the High Court.

3 The moving party invites the High Court, in determining this appeal, to interpret Order 36 of the Circuit Court Rules in a manner which aligns with the equivalent rule under the Rules of the Superior Courts, i.e. Order 42, and, more generally, with the Statute of Limitations 1957.

4 The moving party is constrained to make these arguments in circumstances where the order for possession, which it is sought to enforce, is more than twelve years old. If, on its proper interpretation, Order 36 of the Circuit Court Rules does, indeed, impose a twelve year time-limit, then the application for leave to issue execution would have to be refused.

PROCEDURAL HISTORY

5 The moving party, Pepper Finance Corporation (Ireland) DAC, seeks to execute an order for possession made by the County Registrar on 10 November 2008 (“ the order for possession”). The order for possession had originally been granted in favour of Bank of Scotland (Ireland) Ltd. Thereafter, an execution order, in the form of an order of possession, was issued in favour of the original plaintiff. (As to the distinction between an order for, and an order of, possession, see Start Mortgages DAC v. Rogers [2021] IEHC 691 (at paragraphs 24 to 29)).

6 The execution order was issued on 26 March 2010. It seems that the execution order may not have been received from the Circuit Court Office until 8 June 2010. The execution order is directed to the several Sheriffs and County Registrars of the County of Kildare. It authorises the taking of possession of the property comprised in Folio 3969 of the Register County Kildare and the delivery of same to Bank of Scotland (Ireland) Ltd.

7 The execution order has been renewed from time to time. In the initial years, same was renewed in the Circuit Court Office. Thereafter, there were two applications for renewal made to a Judge of the Circuit Court on 1 May 2018 and 29 July 2020, respectively. A court application was deemed necessary in circumstances where there had been a transmission of interest from the original plaintiff, Bank of Scotland (Ireland) Ltd, to Tanager Ltd. The execution order was subsequently renewed in the Office on 26 May 2021. At no point, however, were either the execution order or the order for possession amended so as to reflect the change in the party said to be entitled to execution. (cf. Crowley v. Ireland [2022] IEHC 596 (at paragraphs 28 to 39)).

8 Pepper Finance Corporation (Ireland) DAC (“ Pepper Finance”) issued a motion on 30 September 2022 seeking an order granting it leave to issue execution. The application is made pursuant to Order 36, rule 9 of the Circuit Court Rules. The motion also seeks an order renewing the execution order first issued on 24 March 2010.

9 It is not clear from the papers as to upon what basis Pepper Finance asserts an entitlement to execute the order for possession. It may be that Tanager DAC has since changed its name to “ Pepper Finance (Ireland) DAC”, but this has not been explained on affidavit. It is not necessary to consider the implications of this evidential deficit having regard to my findings on the time-limit issue.

10 The motion was refused by the Circuit Court (His Honour Judge O'Sullivan) by order dated 26 January 2023 on the grounds that more than twelve years have expired since the date of the decree or judgment sought to be enforced.

11 Pepper Finance filed an appeal against that order to the High Court. The appeal ultimately came on for hearing before me on 20 November 2023. There was no attendance on behalf of the defendants, but Pepper Finance was in a position to prove service. Pepper Finance was given leave to file and serve short supplemental written submissions following the hearing. Judgment was reserved until today's date.

ORDER 36, CIRCUIT COURT RULES

12 Order 36, rule 9 of the Circuit Court Rules provides that every decree or judgment of the Circuit Court shall be in full force and effect for a period of twelve years. An execution order based on a decree or judgment may only be issued within a period of twelve years from the date thereof. If an execution order has not issued within a period of six years, then it is necessary to apply for leave to issue execution from the Circuit Court.

13 Put otherwise, the Circuit Court Rules anticipate that a decree or judgment will ordinarily be executed within six years. This is subject to an outer limit of twelve years. If it is sought to execute between years six and twelve, it is necessary to apply for leave to issue execution.

14 It is also necessary to apply for leave to issue...