Start Mortgages PLC v Ward & anor (Approved)

Factual and Procedural Background

The Plaintiff sought an order under Order 42, rule 24 of the Rules of the Superior Courts (RSC) granting leave to issue execution pursuant to an Order for Possession dated 28 April 2008 concerning the Defendants' family home in Donagh Patrick, Headford, Co. Galway. The Defendants reside there with their two daughters and grandson. The Plaintiff already possessed an order from 25 November 2019 granting leave to issue execution for a period of 12 months. However, when the Plaintiff attempted to have the execution order issued through the Central Office in June 2020, the Central Office refused, citing concerns that the Order for Possession was statute barred due to the passage of more than 12 years since the original order. The Plaintiff subsequently applied to the High Court to clarify whether the limitation period under the Statute of Limitations applied, particularly in light of a protective certificate obtained by the Defendants under the Personal Insolvency Act 2012, which was in force from December 2019 and expired in May 2020.

Legal Issues Presented

1. Whether the Plaintiff is entitled to leave to issue execution on foot of the Order for Possession despite the passage of more than 12 years since the order was made.
2. Whether the limitation period under s. 11(6)(a) of the Statute of Limitations 1957 applies to the Order for Possession or the subsequent order granting leave to issue execution.
3. Whether the period during which the Defendants held a protective certificate under the Personal Insolvency Act 2012 should be disregarded in calculating any applicable limitation period.
4. The applicability of Order 42, rule 24 of the RSC and the requirement for leave to issue execution after six years have elapsed since the judgment or order.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that the limitation period should be calculated excluding the time the Defendants held a protective certificate under the Personal Insolvency Act 2012, pursuant to s. 96(7) of that Act, which provides that the period in which the protective certificate is in force is disregarded for limitation purposes.
• The Plaintiff argued that the existing Order for Possession should be treated as being less than 12 years old when reckoning time, due to the protective certificate suspending enforcement steps.
• The Plaintiff relied on case law, including Ulster Investment Bank Ltd v. Rockrohan Estate Ltd and Start Mortgages v. Piggot, to support the proposition that no limitation period applies to enforcement of an order for possession by seeking leave to issue execution, as such enforcement is not an "action brought upon a judgment".
• The Plaintiff submitted that the Central Office's refusal to issue the execution order was incorrect given the protective certificate's effect on the limitation period.

Defendants' Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the application of the Personal Insolvency Act 2012, particularly s. 96(7), which mandates disregarding the period during which a protective certificate is in force when calculating limitation periods. The Court found that the application for leave to issue execution under Order 42, rule 24 of the RSC constitutes a process of execution to which the Personal Insolvency Act provisions apply. The Central Office's refusal to issue the execution order on the basis that the Order for Possession was statute barred was therefore incorrect because the limitation period should exclude the time the protective certificate was in effect.

The Court accepted the Plaintiff's calculation that, discounting the protective certificate period, the 12-year limitation period would expire on 24 September 2020, thus permitting the Plaintiff to lawfully seek execution within that timeframe.

The Court also reviewed relevant case law addressing limitation periods in the context of execution orders and leave to issue execution, noting that while some precedents suggest no limitation applies to enforcement of possession orders, these do not directly address applications for leave to issue execution where further judicial consideration is necessary. The Court acknowledged the unsettled state of the law on whether limitation periods apply to such applications but declined to decide the issue as it was not yet ripe for determination.

Given that the Plaintiff already had a valid order granting leave to issue execution, the Court found no need to grant a further order. The Court anticipated that the Central Office should promptly issue the execution order if the Plaintiff applies in a timely manner following the judgment.

Holding and Implications

The Court granted a declaration that the period during which the Defendants held a protective certificate under the Personal Insolvency Act 2012 (from 11 December 2019 to 9 May 2020) is to be disregarded in calculating the limitation period for enforcement of the Order for Possession.

The Court further held that there was no need to grant the Plaintiff leave to issue execution as the Plaintiff was entitled to rely on the extant order dated 25 November 2019.

DISPOSED OF

The direct effect of this decision is to clarify that the Plaintiff may enforce the possession order by issuing execution before 24 September 2020, excluding the protective certificate period from the limitation calculation. No new binding precedent was established on the broader question of limitation periods applying to applications for leave to issue execution, as the Court declined to decide that issue at this time.