Start Mortgages Designed Activity Company v Hanley

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date10 July 2023
Neutral Citation[2023] IEHC 387
CourtHigh Court
Docket Number2009 No. 1544 SP
Between
Start Mortgages DAC
Plaintiff
and
Shane Hanley
Defendant

[2023] IEHC 387

2009 No. 1544 SP

THE HIGH COURT

Order for possession – Execution – Leave – Plaintiff seeking leave to issue execution – Whether the plaintiff had met the threshold of establishing a good reason which explained the failure to execute the order for possession

Facts: The High Court (Dunne J) made an order on 12 March 2012 directing the defendant, Mr Hanley, to deliver up possession of the property comprised in Folio 26497F County Galway. The order for possession remained unexecuted. The plaintiff, Start Mortgages DAC, was the registered owner of the charge pursuant to which the order for possession had been made. The relevant entry in the folio was dated 11 September 2008. The plaintiff issued a motion on 26 September 2019 seeking leave to issue execution (the first motion). The motion came on for hearing before Simons J on 13 January 2020 and he made an order granting leave to issue execution. The defendant filed and served a notice of appeal against that order to the Court of Appeal on 13 February 2020. The Court of Appeal subsequently made an “unless order” on 20 November 2020, extending time for the defendant to file his written submissions until 2 December 2020. The appeal was ultimately dismissed as a result of the defendant’s failure to comply with that order. The plaintiff’s solicitors caused an order of possession to be issued out of the Central Office of the High Court on 9 November 2020. That order of possession was not enforced within the one year period allowed. The plaintiff issued a fresh motion seeking leave to issue execution on 11 April 2022 (the second motion). The hearing of the motion was adjourned, from time to time, to allow the defendant to pursue a data subject access request. Simons J made an order on 3 October 2022 directing that a hard copy of the data request pack be furnished to the defendant. The defendant filed a first affidavit in response to the second motion on 14 March 2023. At a subsequent hearing, the defendant was invited to file a further affidavit which engaged with the type of considerations relevant to an application for leave to issue execution. The defendant duly filed a second affidavit on 12 June 2023. The second motion was heard, remotely via the Pepix platform, on 26 June 2023 and judgment was reserved.

Held by Simons J that the explanation for the failure to execute the order for possession met the threshold of a reasonable explanation as per Smyth v Tunney [2004] IESC 24. He held that it would have been inappropriate for the plaintiff to have taken active steps to enforce the order for possession prior to the dismissal of the appeal by the Court of Appeal in December 2020; thereafter, the plaintiff was frustrated in seeking to execute the order of possession during the period 9 November 2020 to 8 November 2021. Accordingly, Simons J held that the plaintiff was required to issue a fresh application for leave to issue execution and that this was done within a reasonable period of time; the motion issued on 11 April 2022. He found that the delay in the motion coming on for hearing was explicable, in part, by the time taken up by a data subject access request. He was also satisfied that the delay in executing the order for possession had not caused any prejudice to the defendant.

Simons J proposed granting the plaintiff leave to issue execution, pursuant to Order 42, rule 24 of the Rules of the Superior Courts, in respect of the order for possession of 12 March 2012. Simons J’s provisional view was that the plaintiff, having been entirely successful in what was a contested application, was entitled to recover the costs of the motion as against the defendant.

Application granted.

Appearances

Rudi Neuman for the plaintiff instructed by Lavelle Partners LLP

The defendant appeared as a litigant in person

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 July 2023

INTRODUCTION
1

This judgment is delivered in respect of an application for leave to issue execution made by Start Mortgages DAC (“ Start Mortgages”). The application is made pursuant to Order 42, rule 24 of the Rules of the Superior Courts.

PROCEDURAL HISTORY
2

The High Court (Dunne J.) made an order on 12 March 2012 directing the Defendant to deliver up possession of the property comprised in Folio 26497F County Galway (“ the mortgaged property”). To date, the order for possession remains unexecuted. Start Mortgages is the registered owner of the charge pursuant to which the order for possession had been made. The relevant entry in the folio is dated 11 September 2008.

3

Start Mortgages issued a motion on 26 September 2019 seeking leave to issue execution (“ the first motion”). The motion came on for hearing before me on 13 January 2020 and I made an order granting leave to issue execution. The Defendant, as is his right, filed and served a notice of appeal against that order to the Court of Appeal on 13 February 2020. The Court of Appeal subsequently made an “ unless order” on 20 November 2020, extending time for the Defendant to file his written submissions until 2 December 2020. The appeal was ultimately dismissed as a result of the Defendant's failure to comply with that order.

4

Start Mortgages' solicitors caused an order of possession to be issued out of the Central Office of the High Court on 9 November 2020. This order of possession was not enforced within the one year period allowed. The following explanation for the failure to enforce this order of possession has been provided on affidavit: see paragraphs 13 and 14 of Ms. McCarthy's affidavit filed on 11 April 2022:

“I say that due to the unprecedented impact of the Covid-19 pandemic, the Plaintiff did not progress executing the Order for Possession as part of an agreed moratorium with the Banking and Payments Federation Ireland.

I had been advised by my solicitor that whilst the Order of Possession was in force during the coronavirus pandemic, the local Sherriff for Galway was not executing Orders of Possession for understandable public health and safety reasons. Accordingly, it was not practicable for the Plaintiff to execute the Order of Possession whilst it was enforceable in the period 9 November 2020 to 8 November 2021.”

5

Start Mortgages issued a fresh motion seeking leave to issue execution on 11 April 2022 (“ the second motion”). The hearing of the motion was adjourned, from time to time, to allow the Defendant to pursue a data subject access request. I made an order on 3 October 2022 directing that a hard copy of the data request pack be furnished to the Defendant.

6

The Defendant filed a first affidavit in response to the second motion on 14 March 2023. At a subsequent hearing, the Defendant was invited to file a further affidavit which engaged with the type of considerations relevant to an application for leave to issue execution. The Defendant duly filed a second affidavit on 12 June 2023. The content of these two affidavits is considered below, at paragraphs 20 and onwards.

7

The second motion was heard, remotely via the Pepix platform, on 26 June 2023 and judgment was reserved until today.

ORDER 42, RULE 24
8

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 of the Rules of the Superior Courts.

9

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. There, the Supreme Court held that it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute following the lapse of six years from the date of the judgment or order, provided that there is some explanation at least for the lapse of time. The Supreme Court went on to state that, even if a good reason is given, the court must consider any counterbalancing allegations of prejudice.

10

The discretionary nature of the relief has 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...

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