Start Mortgages Plc v Ward

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] IEHC 444
• Docket Number: [2007/848SP]
• Court: High Court
• Date: 11 September 2020

BETWEEN

START MORTGAGES DAC

PLAINTIFF

-AND-

BERNARD M WARD

DEFENDANT

-AND-

MARY T WARD

DEFENDANT

[2020] IEHC 444

Niamh Hyland J.

[2007/848SP]

THE HIGH COURT

Protective certificate – Statute of Limitations – Order for Possession – Plaintiff applying to treat protective certificate as pausing the Statute of Limitations – Whether any reckoning of time for seeking to enforce any order against the defendants was placed on hold pending the expiration of the protective certificate

Facts: The plaintiff, Start Mortgages DAC, applied to the High Court seeking an order pursuant to Order 42, rule 24 of the RSC granting the plaintiff leave to issue execution in the proceedings on foot of an Order for Possession of 28 April 2008 in respect of the family home of the defendants, Mr and Ms Ward, in Donagh Patrick, Headford, Co. Galway. The plaintiff also sought additional relief to the effect that the order of 25 November 2019 granting the plaintiff leave to issue execution on foot of the Order for Possession is not an Order to which s. 11(6)(a) of the Statute of Limitations 1957 applies. The plaintiff’s core contention was that, as of the date of its request, the Order for Possession should be treated as being in existence for less than 12 years in circumstances where the defendants had obtained a protective certificate under the Personal Insolvency Act 2012 on 11 December 2019. That certificate was renewed on two occasions and ultimately expired on 9 May 2020. It was for that reason that the plaintiff did not act on foot of the Order of 25 November until 4 June 2020. The plaintiff made the case that any reckoning of time for seeking to enforce any Order against the defendants was placed on hold pending the expiration of the protective certificate, having regard to the provisions of s. 96(7) of the Personal Insolvency Act 2012 as amended. The plaintiff relied on the High Court and Supreme Court decisions of Ulster Investment Bank Ltd v Rockrohan Estate Ltd [2015] 4 I.R. 37 and the High Court decision of Start Mortgages v Piggot [2020] IEHC 293, which it asserted are analogous to this situation and suggested that, by analogy with the principles identified in those judgments, no limitation period applies when enforcing an order for possession by seeking leave to issue execution on the basis that an execution order is not an “action brought upon a judgment”.

Held by Hyland J that she would grant a declaration in terms of paragraph 3 of the Notice of Motion to the effect that the period 11 December 2019 to 27 April 2020, being the time for which the protective certificate in respect of the defendants was in force until the expiration of the Order for Possession, is not to be reckoned for in the calculation of the limitation period for the Order for Possession.

Hyland J held that there was no necessity to grant the relief sought at paragraph 1 giving the plaintiff leave to issue execution since they were entitled to rely on the extant Order of Simons J made on 25 November 2019 to this effect.

Application upheld.

JUDGMENT of Ms. Justice Niamh Hyland delivered 11 September 2020

1 The core relief sought by the plaintiff in this application is an order pursuant to Order 42, rule 24 of the RSC granting the plaintiff leave to issue execution in the proceedings on foot of an Order for Possession of 28 April 2008 (the “Order for Possession”) in respect of the defendants' family home in Donagh Patrick, Headford, Co. Galway. The defendants live there with their two daughters and grandson.

2 The plaintiff also seeks additional relief to the effect that the order of 25 November 2019 granting the plaintiff to leave to issue execution on foot of the Order for Possession is not an Order to which s. 11(6)(a) of the Statute of Limitations 1957 applies.

Approach of the Central Office

3 The curiosity in this case is that the plaintiff already has, by way of the aforementioned Order of 25 November 2019 of Simons J., an order giving the plaintiff leave to issue execution in respect of the Order for Possession for a period of 12 months pursuant to Order 42 of the RSC.

4 However, when the execution set was lodged with the Central Office in the usual way and a request was made on 4 June 2020 to the Central Office to issue the execution order authorised by the Order of 25 November 2019, in the words of Mr. Nevin, litigation manager for the plaintiff, in his grounding affidavit of 21 July 2020:

“By reply dated 11 June 2020 the plaintiff was informed that the Order for Possession was statute barred and an application for the leave of the Court would be required to determine whether or not the Plaintiff was still within the time-limits prescribed by the statutory provisions to obtain the Execution Order”.

5 The precise wording of the response of the Central Office of 11 June 2020 was as follows: “The registrar has considered the contents of your letter dated 4th June 2020. You will need to apply to the Court to determine whether still within the time - statutory provision”.

6 This response was presumably prompted by the fact that the date of request by the plaintiff was in excess of 12 years from the Order for Possession. Unfortunately, the precise statutory provision of concern to the Central Office was not identified. It may have been s. 11(6)(a) of the Statute of Limitations which provides as follows:

An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.

7 Alternatively, it may have been s. 13(2) of the Statute of Limitations Act which provides as follows:

The following provisions shall apply to an action by a person (other than a State authority) to recover land—

(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to...