This High Court judgement looks at the principles surrounding applications for leave to execute an order for possession. Orders for possession are generally required to be executed within six years, as set out in Order 42, rule 24 of the Rules of the Superior Courts. This case looks at what occurs when the Order is not executed within that time period.
The High Court made an order for possession on 11 October 2010 (the "Order"), directing the Defendants to deliver possession of the property, with the plaintiff later obtaining leave to execute the Order on 14 October 2019.
On 3 October 2022, the plaintiff made a further application for leave, noting concerns regarding the running of the statute very close to the twelve-year point. The matter was listed for hearing but was adjourned once to allow the defendant time to enter into a personal insolvency agreement. When the agreement did not come into fruition, the matter proceeded for hearing on 12 December 2022.
In considering the applicable principles in applications for leave to execute orders beyond the limitation period, Simons J relied upon the Supreme Court judgment, Smyth v Tunney  IESC 24, which is the leading case in this area. The Supreme Court established that, while not necessary to provide any exceptional or special reason as to why the Order for Possession has not been executed within six years, a reasonable excuse for the lapse in time will be acceptable to the courts. However, even if a reasonable excuse is provided, the court must consider any prejudice that may be done to the opposite party.
This case was re-affirmed recently in 2021 in KBC Bank plc v Beades  IECA 41, where the Court of Appeal confirmed that reasons must be provided for the delay, and even where a reasonable excuse is provided, the court will take into account counterbalancing arguments of prejudice.
The Court of Appeal further re-affirmed the case in 2022 in Ulster Bank Ireland Ltd v Quirke  IECA 283, which stated that while the threshold for a reasonable excuse in Smyth v Tunney is not a high one, an excuse is necessary. Every day that has elapsed following the expiry of the six years must be explained to the courts in an overall sense.
In circumstances where the High Court had already provided judgment on 14 October 2019 regarding the lapse in time between the date of judgment for the Order of Possession and the application for leave to execute, Simons J confirmed that he was going to look to the events that occurred solely after that date. Although, he emphasised that, in general, the court should look at the overall delay in executing an order for possession.
The reasons given for the lapse in time were as follows:
- The defendants' appeal in the Court of Appeal had been outstanding until 10 September 2020, when it was struck out.
- Following this, the plaintiff had attempted to engage with the defendants to address the outstanding debt via alternate methods.
- In May 2021, the plaintiff enquired with the defendants to see whether they were interested in a mortgage-to-rent scheme, which the defendants declined in June 2021.
- Subsequently, the defendants confirmed in February 2022 that they wished to discharge the debt by sale of other lands.
Simons J found that he was satisfied that the above explanations met the threshold for reasonable explanation and also could not find any prejudice against the defendants.
Simons J also importantly touched on the issue of the Statute of Limitations, noting that s.11(6)(a) of the Statute of Limitations Act 1957, which prescribes a 12-year time limit for the bringing of an action upon a judgment, does not apply to the hearing of any application seeking leave to execute an existing court order under Order 42 rule 24. He deemed that an application for leave to execute is not considered an action upon a judgment and is therefore not subject to the 12-year period.
While the courts do not take an overly stringent view of a lapse in time between the expiry of six years post-judgment and an application for leave to execute, it is important not to leave a matter in abeyance and that steps must be continually taken to resolve the debt. A reasonable excuse will have to be provided to the courts in any application for leave to execute and it is important not to be left open to criticism in that regard.
This article was contributed by Kevin Carter & Darragh Regan.