Start Mortgages DAC v Piggott

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 15 June 2020
• Neutral Citation: [2020] IEHC 293
• Docket Number: [2008 No.161 SP]
• Court: High Court
• Date: 15 June 2020

BETWEEN

START MORTGAGES DAC

PLAINTIFF

AND

BARRY PIGGOTT

DEFENDENT

[2020] IEHC 293

Mary Rose Gearty J.

[2008 No.161 SP]

THE HIGH COURT

Renewal – Possession of property – Leave to issue execution – Plaintiff seeking renewal of execution order – Whether s. 11(6)(a) of the Statute of Limitations of 1957 applies to the renewal of an order for leave to execute a possession order

Facts: Dunne J, on the 30th of June, 2008, gave an order to the bank whose interest was acquired by the plaintiff, Start Mortgages DAC, for possession of a property in Limerick, which property was owned by the defendant, Mr Piggott. The defendant had been unable to make mortgage payments on the property but, over the following years, various attempts were made by all parties to ensure that the defendant kept his home. A number of payment plans were put in place and there was a small measure of success but, one by one, all such arrangements failed and, by 2016, the defendant had stopped making payments. The plaintiff sought and obtained leave to issue execution of the order in November 2018, and that order was renewed in July 2019. The 2018 order, as renewed, permitted, on its face, the execution of the possession order up to the 24th July 2020, some weeks after the period of 12 years would have passed since the making of the 2008 order. A second renewal of this order was sought. The issue for the purposes of this application was whether or not s. 11(6)(a) of the Statute of Limitations of 1957 applies to the renewal of an order for leave to execute a possession order. The applicant argued that the order may be renewed for a further year under the relevant rules of court and Irish authorities. The defendant consented to the renewal. If the Statute required that the order be executed within 12 years of the date on which the possession order became enforceable, there was a concern that further proceedings would be statute barred in a fortnight.

Held by the High Court (Gearty J) that if leave to renew the order was not granted in this case the result would be contrary to the wishes of all parties who had worked together over the years to achieve two socially desirable results: that homeowners retain their homes and that lenders are repaid. Gearty J found that it could work a serious injustice in other comparable cases and this ruling followed and adopts the rationale expressed by Irvine J and Charleton J in Ulster Investment Bank Ltd v Rockrohan Estate Ltd [2015] IESC 17 and [2009] IEHC 4. Gearty J held that the provision limiting actions on judgments cannot apply to enforcement provisions in these circumstances. Even turning to modern commercial requirements, given the potential for delay in such actions it seemed to Gearty J absurd to suggest that the limitation period must apply not only to the first steps in the execution of a judgment but that the whole process of execution must be complete within 12 years. Gearty J held that in this case, as in Rockrohan, such a result could not have been the intention of the legislature. Gearty J held that for commercial purposes it is far better for mortgagor and mortgagee if payments are made and if time is granted in circumstances where the debt is being addressed. Gearty J held that it is in nobody’s interest if houses are repossessed and sold to pay off debt if the debt can be addressed by repayment and it is, and should be, a last resort to repossess a home. Gearty J held that modern longevity and commercial reality support the view that this is the only sensible interpretation of s. 11(6)(a).

Gearty J held that the Court would grant the plaintiff leave to renew the execution order for a further year, pursuant to Order 42 rule 20 of the Rules of the Superior Courts.

Application granted.

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 15th day of June, 2020

1. Introduction

1.1 On the 30th of June, 2008, Ms. Justice Dunne gave an order to the bank whose interest was acquired by this Applicant, the Plaintiff, for possession of a property in Limerick, which property was owned by the Defendant. The Defendant had been unable to make mortgage payments on the property but, over the following years, various attempts were made by all parties to ensure that the Defendant kept his home. A number of payment plans were put in place and there was a small measure of success but, one by one, all such arrangements failed and, by 2016, the Defendant had stopped making payments. The Plaintiff sought and obtained leave to issue execution of the Order in November 2018, and that Order was renewed in July of 2019. The 2018 Order, as renewed, permits, on its face, the execution of the Possession Order up to the 24th July 2020, some weeks after the period of 12 years will have passed since the making of the 2008 order. A second renewal of this Order is now sought.

1.2 The issue for the purposes of this application is whether or not section 11(6)(a) of the Statute of Limitations of 1957 applies to the renewal of an order for leave to execute a possession order. In other words, is the order sought, to renew the Order of Possession, an “action on a judgment”, to use the phrase in section 11. The Applicant has argued that the order may be renewed for a further year under the relevant rules of court and Irish authorities. The Defendant consent to the renewal. If the Statute requires that the order be executed within 12 years of the date on which the possession order became enforceable, there is a concern that further proceedings will be statute barred in the next fortnight.

1.3 The Applicant is reluctant to execute the order, despite the passage of 12 years, due to the ongoing global pandemic, the medium to long-term effects of which are not clear. The applicant Plaintiff is reluctant to take any action which would render the respondent Defendant homeless during the current crisis, particularly given their efforts to reduce the debt in the relatively recent past.

1.4 The relevant rule of court requires an application for leave to renew an order if it has not been executed within 6 years but there is Supreme Court authority to confirm that once the application is made within 12 years of the date of the judgment, one need only show the court sufficient reason for the delay in order to obtain such leave; part payment of the debt in the meantime easily satisfies that test.

1.5 There are conflicting authorities from other jurisdictions as to whether the Court can make such an order after 12 years have passed. If there is no jurisdiction to further renew the Order for Possession, the Plaintiff seeks an order granting it leave to issue execution in the proceedings on foot of the Order for Possession granted in 2008.

1.6 Section 11(6)(a) of the 1957 Statute provides that “actions on a judgment must be taken within 12 years of the judgment”. The Supreme Court declined to consider a similar issue in Smyth v. Tunney, [2004]1 IR 512 at page 520; [2004] 2 ILRM 537, at page 548, as it was not necessary in that case given that the application for leave to execute was made in time (one day before the expiry of 12 years since the possession order was made).

2. Irish Authorities

2.1 The Statute of Limitations provides, in section 11(6)(a) 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.”

2.2 The Supreme Court decision in Smyth v Tunney, confirms that the Court has a discretion to renew an order for execution and that the party seeking leave to renew must show sufficient reason as to why she has not yet executed the judgment in which case the court will give her leave to execute within the following year. This leave application may be renewed time after time. The Rules of the Superior Courts [RSC] are silent as to whether or not an order can be renewed beyond the period of 12 years from the date of judgment, although the Circuit Court Rules provide that such applications must take place within 12 years of the judgment (see Order 36 rule 9).

2.3 English case law on the matter is of very limited assistance. Several cases outline the history of the limitation provisions, but the position is much clearer in this jurisdiction. In Lowsley v Forbes (t/a L.E. Design Services) [1999] 1 AC 329, the leading decision in England and Wales, the House of Lords noted the position in a case called W. T. Lamb & Sons v Rider [1948] 2 KB 331, which was that no limitation period applied to execution on a judgment and also noted that the relevant statute was enacted in 1980 in that jurisdiction after the WT Lamb case. This sequence of events persuaded Lord Lloyd of Berwick in Lowsley, to follow Lamb despite disagreeing with its logic. The case is decided, in part, due to an analysis of statutory interpretation that simply does not apply here: it is of limited interest to judges or lawyers here what Parliament intended in enacting the Limitation Act of 1980 after an English Law Reform Commission report was published or in deference to a decision in the English Court of Appeal. This Court is concerned to ascertain the meaning of the Statute of Limitations of 1957 and to apply it, using available Irish authority and common sense.

2.4 In a very recent judgment, Greene King Brewing and Retailing Ltd v Baker [2020] IEHC 221, [2020] IEHC 221, Ms. Justice Pilkington relied on the decision of Ulster Investment Bank Ltd v Rockrohan Estate Ltd [2015] IESC 17 [2015], 4 I.R. 37, and [2009] IEHC 4. This is not only the most pertinent authority for the purposes of this case but the reasoning of Ms. Justice Irvine in Rockrohan has the endorsement of a Supreme Court judgment upholding the result and the rationale by which it was attained.

3. Ulster Investment Bank Ltd v Rockrohan : High Court and Supreme Court

3.1 In Rockrohan, Irvine J. began her consideration of the application of section 11(6),...