Ulster Investment Bank Ltd v Rockrohan Estate Ltd

CourtHigh Court
JudgeMs. Justice Irvine
Judgment Date14 Jan 2009
JurisdictionIreland
Neutral Citation[2009] IEHC 4

[2009] IEHC 4

THE HIGH COURT

[No.1055 SP/1986]
Ulster Investment Bank Ltd v Rockrohan Estate Ltd

BETWEEN

ULSTER INVESTMENT BANK LIMITED
PLAINTIFF
ROCKROHAN ESTATE LIMITED
DEFENDANT

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

RSC O.3

RSC O.1 r1

RSC O.54 r3

RSC O.3 r15

RSC O.2

RSC O.1 r6

RSC O.38 r8

STATUTE OF LIMITATIONS 1957 ACT S72

STATUTE OF LIMITATIONS 1957 ACT S11(6)(a)

STATUTE OF LIMITATIONS 1957 ACT S33

STATUTE OF LIMITATIONS 1957 ACT S11(6)(b)

STATUTE OF LIMITATIONS 1957 ACT S37(1)

RSC O.42 r23

RSC O.42 r24

STATUTE OF LIMITATIONS 1957 ACT S2(1)

STATUTE OF LIMITATIONS 1957 ACT S11(6)

STATUTE OF LIMITATIONS 1957 ACT S13(2)

STATUTE OF LIMITATIONS 1957 ACT S36(1)

STATUTE OF LIMITATIONS 1957 ACT S37(1)

STATUTE OF LIMITATIONS 1957 ACT S38

LOWSLEY v FORBES (TRADING AS LE DESIGN SERVICES) 1999 1 AC 329

EZEKIEL v ORAKPO 1997 1 WLR 340

YORKSHIRE v BANK FINANCE LTD v MULHALL & ANOR 2008 EWCA CIV 1156

BRADY & KERR LIMITATION OF ACTIONS 2ED

SCANLON PRACTICE & PROCEDURE IN ADMINISTRATION & MORTGAGE SUITS IN IRELAND 2ED

STATUTE OF LIMITATIONS 1957 ACT S2

BANK OF IRELAND v SLATTERY 1911 1 IR 33

CHARGING ORDERS ACT 1979 S1(1)

CHARGING ORDERS ACT 1979 S3(4)

LIMITATION ACT 1980 S15 (UK)

LIMITATION ACT 1980 S24(1) (UK)

LIMITATION ACT 1980 S20(5) (UK)

RSC O.46 r2

COMPANIES ACT 1948 (UK)

LLOYD IN RE 1903 1 CH 385

ASHE v NATIONAL WESTMINISTER BANK 2008 1 WLR 710 2008 EWCA CIV 55

SMYTH & GENPORT LTD v HUGH TUNNEY & ORS UNREP SUPREME 21.4.2004 2004/47/10840

RSC O.33 r11

REAL PROPERTY

Mortgage

Possession - Loan to finance development of mine - Guarantee debenture - Default - Well charging order - Refusal of order of possession on grounds of necessity - Appeal on basis that well charging order should have been postponed - Further proceedings claiming judgments obtained by fraud - Abuse of process - Isaac Wunder order - Setting of conditions and date for sale by examiner - Judicial review of decision of examiner - Dismissal of judicial review - Application for possession - Motion of defendant - Application for order to set aside or vary well charging order - Application for declaration that obligations discharged - Claim that terms of guarantee debenture did not reflect true agreement - Whether claim for rectification could be made by way of defence to application for possession - Procedure by special summons - Failure to raise issue prior to well charging order - Whether right to litigate issue - Application for order directing that title extinguished - Statute of limitations - Purpose of statute - Uncertainty of late claims - Prejudice in proving defence - Action - Policy reasons for distinguishing between actions and procedures for execution - Right of mortgagee to apply for possession - Whether fresh action being maintained - Whether process of execution - Intention of legislature - Application for declaration that arrears of interest limited to six years by statute - Whether interest incurred within six year period prior to commencement - Whether restriction on entitlement to recover interest arising subsequent to well charging order - Adverse possession - Covenant creating equitable charge - Absence of title or right to occupation - Discretion - Delay - Absence of complaint regarding delay - Prejudice - Time limits - Whether proceeds of sale of shares should have been placed in interest bearing account - Whether monies in interest bearing account would have exceed liability - Absence of legal basis for claim - Absence of challenge to sum well charged - Res judicata - Lowsley v Forbes (Trading as LE Design Services) [1999] 1 AC 329, Ezekiel v Orakpo [1997] 1 WLR 340, Yorkshire Bank Finance Limited v Mulhall [2008] EWCA Civ 1156, Bank of Ireland v Slattery [1911] 1 IR 33, Re Lloyd [1903] 1 Ch 385, Ashe v National Westminster Bank [2008] EWCA Civ 55 [2008] 1 WLR 710 and Philip Smith v Tunney [2004] 1 IR 512 considered - Statute of Limitations 1957 (No 6), ss 2, 11, 13, 32, 33 & 72 - Rules of the Superior Courts 1986 (SI 15/1986), O 1, 38, 42 & 54 - Possession ordered (1986/1055Sp - Irvine J - 14/01/2009) [2009] IEHC 4

Ulster Investment Bank Ltd v Rockrohan Estate Ltd

Facts: section 11(6)(a) of the Statute of Limitations 1957 provides 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.” Section 13(2)(a) of the Act of 1957 provides, inter alia, that “[no] action by a person…to recover land…shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it…” Section 36(1) of the Act of 1957 provides, inter alia, that “no action shall be brought to recover any principal sum of money secured by a mortgage or charge on land…after the expiration of twelve years from the date when the right to receive the money accrued.” Section 37(1) of the Act of 1957 provides that “no action shall be brought to recover arrears of interest payable in respect of any principal sum of money secured by a mortgage or charge on land…after the expiration of six years from the date on which the interest became due.” Order 42, rule 23 of the Rules of the Superior Courts 1986 provides that “as between the original parties to a judgement or order, execution may issue at any time within six years from the recovery of the judgement, or the date of the order”. Order 42, rule 24 provides that “where six years have elapsed since the judgement or order … the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried”. The plaintiff had advanced a loan to Bula ltd which was secured by a guarantee given by the defendant. Following default in repayment of the said loan, the plaintiff obtained a declaration from the High Court in 1987 that the sums so guaranteed stood well charged on the defendant’s interest in certain lands and also made an order for sale thereof. No order for possession of those lands was granted. Due to a series of related litigation brought by the directors of the defendant, the plaintiff took no further action to enforce the order for sale until 2008. It then sought, by notice of motion, an order for possession of the said lands. It also sought to have certain sums for principal and a further sum for interest declared well charged on the lands. That portion of the plaintiff’s claim as related to interest was incurred within the six year period prior to the commencement of the action. The defendant, in a separate motion, sought, inter alia: an order setting aside the well charging order, including the order for sale, made in 1987; an order directing that any title to and any right to sell that the plaintiff had in relation to the lands, was extinguished by virtue of section 13(2) of the Statute of Limitations Act 1957 and; an order directing that any arrears of interest on foot of the well charging order were limited to six years pursuant to the Act of 1957.

Held by Ms Justice Irvine in granting the relief sought, 1, that the purpose of the Statute of Limitations Act 1957 was to prevent stale claims and to relieve certain classes of defendants of the uncertainty of late claims being made against them. Those considerations did not apply where one party sought to enforce a judgment or order previously made against the other party at sometime removed from the date upon which it had been made as there was no surprise or evidential unfairness inherent in such a process. Accordingly, there were good policy reasons for distinguishing between “actions” within the meaning of the Act of 1957 and procedures whereby an order for judgment could be executed. The application for possession was one for an order ancillary to the well charging order and order for sale previously made and was sought purely for the purpose of enabling it to enforce that order and was not an “action” for the purposes of section 11(6)(a) of the Act of 1957.

2. That the provisions of sections 11(6)(a) and 37(1) of the Statute of Limitations Act 1957 placed no statutory restriction on the recovery of interest post the date of the well charging order. Neither the provisions of sections 36(1) nor 37(1) of the Act of 1957 restricted the right of the plaintiff to proceed to recover the principal and interest declared well charged by the High Court in its order of 1987.

3. That the right of the plaintiff to sell the defendant’s lands or to obtain an order for possession were not defeated by any right of the defendant to “adverse possession” of such lands, under section 13(2)(a) of the Act of 1957 or otherwise, as the plaintiff never had any title or right to occupation of the lands.

4. That the application for possession was not governed by Order 42, rules 23 and 24 of the Rules of the Superior Courts 1986 as it was not an application for execution within the meaning of that rule but rather an application for an order to assist it in enforcing the order previously made which itself permitted the plaintiff to execute the well charging order by a sale of the defendant’s lands. That, in any event, the plaintiff had established good reasons for the exercise by the Court of its discretion to grant the necessary leave to issue execution.

Reporter: P.C.

1

Ms. Justice Irvine delivered on the 14th day of January 2009

2

This judgment relates to two notices of motion which are before the Court in the within proceedings. The first of these in time is a notice of motion dated 17 th July, 2008 wherein the plaintiff, Ulster...

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6 cases
  • Ulster Investment Bank Ltd v Rockrohan Estate Ltd
    • Ireland
    • Supreme Court
    • 26 February 2015
    ...an adverse occupation by the mortgagor nor an efflux of time to enable the creation of a title by adverse possession. In the High Court ([2009] IEHC 4), the trial judge decided that the Statute of Limitations 1957 had no applicability in the circumstances of the case. At issue in the appeal......
  • Start Mortgages DAC v Piggott
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    ...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......
  • Hickey v Carlyon
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    • 12 June 2016
    ...interest due on monies declared well charged on a property is that of this Court in Ulster Investment Bank v. Rockrohan Estate Limited [2009] IEHC 4. 18 In 1981, the defendant in that case (‘Rockrohan’) had entered into a debenture with the plaintiff (‘UIB’) guaranteeing the indebtedness of......
  • Eoin Mckeogh v John Doe 1 (user name Daithii4U) and Others
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    ...therefore be struck out. Counsel for the plaintiff relied on the case of Riordan v Hamilton & Ors and Ryanair v. Bravofly and Anor [2009] IEHC 4 to strengthen their claim for striking out. Counsel for the defendant submitted that the adverse publicity allegedly garnered by the plaintiff......
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2 firm's commentaries
  • Renewal Of Orders For Possession After Twelve Years
    • Ireland
    • Mondaq Ireland
    • 3 December 2020
    ...DAC v Barry Piggott [2020] IEHC 293 2 Ulster Investment Bank Limited v Rockrohan Estate Limited [2015] IESC 17 [2015], 4 I.R. 37 and [2009] IEHC 4. 3 Ezekiel v. Orakpo [1997] 1 WLR 340 4 Smyth v Tunney [2004] IESC 24 Originally Published by Dillon Eustace, December 2020 The content of this ......
  • High Court Allows For Renewal Of Execution Order For Possession Despite The Statute Of Limitations
    • Ireland
    • Mondaq Ireland
    • 29 July 2020
    ...an application at any time and the policy considerations would support it. Footnotes 1. [2020] IEHC 293 2. [2015] IESC 17, 4 I.R. 37, and [2009] IEHC 4 3. [2004] IESC The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought......