High Court Allows For Renewal Of Execution Order For Possession Despite The Statute Of Limitations

• Published date: 29 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Ronan Daly Jermyn
• Author: Ms Stephanie Coughlan and Charlene Walsh

In a recent High Court decision of Start Mortgages DAC -v- Piggott ¹, handed down on 15 June 2020 Justice Mary Rose Gearty made an order granting the Plaintiff leave to renew an execution order for possession for a further year, even though the order for possession ("OFP") itself would become over 12 years old within the lifetime of the renewed execution order.

Facts

The High Court made an OFP in respect of the Defendant's property on the 30 June 2008. Subsequent to the OFP being made, the parties made various attempts to find a resolution and a number of payment plans were put in place. Unfortunately, each arrangement failed and by 2016, the Defendant had stopped making payments.

In November 2018, the Plaintiff successfully made an application seeking leave to issue execution of the OFP (as is required when an order is more than 6 years old). The renewed execution order was taken up in July 2019. On foot of same, the Plaintiff had one year (until the 24 July 2020) to execute the OFP.

This case involved a further application by the Plaintiff to renew the execution order as it was reluctant to execute the OFP before the expiry of 24 July 2020 and risk rendering the Defendant homeless during the Covid19 pandemic.

The Law

Section 11(6)(a) of the Statute of Limitations Act 1957 provides that "An action shall not be brought upon a judgement after the expiration of twelve years from the date on which the judgement became enforceable". The Court considered whether this section applies in the circumstances of this case.

The Court found that the most pertinent authority for the purposes of this case was the decision in Ulster Investment Bank Ltd v Rockrohan Estate Ltd ². Irvine J. in that case considered the rationale of and the policy behind the Statute of Limitations and also considered the relevant Rules of the Superior Courts ("RSC") namely Order 42, Rules 23 and 24, and accepted the argument that the enforcement action (in this case an order for leave to execute a well charging order) was not a fresh action/action upon a judgement and for that reason was not barred by section 11(6)(a).

Decision

Being persuaded by Justice Irvine's decision in Rockrohan and noting that her reasoning had the endorsement of a Supreme Court judgement, the court in this current case accepted that an order renewing the execution order calls for no further consideration by the Court and is an application to enforce an order previously made and hence is not affected by Section...