High Court: 12-year limitation period applies in respect of execution of Circuit Court decrees and judgments

About this case:

• Citation:
  [2023] IEHC 662
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons determined that the language of Order 36 is “incapable of accommodating an interpretation which allows an execution order to be issued or renewed after the expiration of twelve years”.

Background

On 10 November 2008, the County Registrar of Kildare made an order for possession over property in County Kildare. An execution order, in the form of an order of possession, was issued on 26 March 2010.

The execution order was renewed from time to time, and on 30 September 2022, the plaintiff issued a motion seeking an order granting it leave to issue execution pursuant to Order 36, rule 9 of the Circuit Court Rules, and also seeking to renew the execution order. The motion was refused by the Circuit Court on grounds that more than 12 years had passed since the date of the decree or judgment sought to be enforced.

The plaintiff appealed to the High Court.

The High Court

Mr Justice Simons considered Order 36, rule 9, noting that “the Circuit Court Rules anticipate that a decree or judgment will ordinarily be executed within six years. This is subject to an outer limit of twelve years. If it is sought to execute between years six and twelve, it is necessary to apply for leave to issue execution.”

The court continued: “It is also necessary to apply for leave to issue execution in circumstances where, at any time during the period of twelve years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution. The original decree or judgment may be amended so as to give effect to any order made by the court on the application.”

Turning to Order 36, rule 13, Mr Justice Simons recognised that the 12-year period applies equally to an application to renew an execution order, and that “an execution order may only be renewed ‘during the currency of the decree or judgment’ and this is subject to the proviso that the said decree or judgment be in ‘full force and effect’ for the period for which the execution order is so renewed”.

The plaintiff submitted that Order 36 should be read in conjunction with Order 67, rule 6, which permits the court to enlarge or abridge the time for doing any act or taking any proceeding. Applying the Latin maxim of “generalia specialibus non derogant”, Mr Justice Simons highlighted that the time limit in Order 36 is “expressed as a statement of principle. It is not defined by reference to the ‘doing of any act’ by a party and is thus not affected by Order 67.”

Considering the plaintiff’s submission that Order 36 should not be interpreted as imposing an absolute time-limit where the Statute of Limitations does not delimit the period within which a judgment may be executed, Mr Justice Simons emphasised that the language of Order 36 is “incapable of accommodating an interpretation which allows an execution order to be issued or renewed after the expiration of twelve years”.

The court found a further difficulty in that “there is no cogent basis for the assumption that the Rules Committee cannot have intended to impose a twelve year time-limit in the absence of there being an equivalent limitation period under the Statute of Limitations… Even in the context of the differently worded provisions of the Rules of the Superior Courts, the fact that twelve years have elapsed since the date of the judgment to be executed is… a ‘major factor’ to be considered in deciding whether to grant or refuse leave to execute.”

Relying upon Irish Life & Permanent plc v. Dunne [2016] 1 IR 92, the court determined that “it is not for the court to assess the policy behind any legislation… Rather, the court could only set aside the clear and unambiguous interpretation of Order 36 if it were satisfied that there is no possible or conceivable basis upon which the Rules Committee might have chosen to legislate in the manner which a literal construction of the relevant provisions would require.”

The plaintiff contended that the subclause of Order 36, rule 9 which reads “but not after the expiration of six years from the date of such decree or judgment without leave of the Court” should be construed as meaning that the 12-year limit only applies where it is sought to issue an execution order in the Circuit Court Office, and where an application for leave to issue execution is made to a Circuit Court judge, there is no outer time-limit.

Mr Justice Simons observed that “the contended for interpretation does violence to the statutory language… an execution order is always issued in the Office: the distinction between the first and second six years of the twelve year period being that the leave of the Circuit Court is required before the Office can issue an execution order after the expiration of six years”.

The plaintiff also argued that based on s.22(6) of the Courts (Supplemental Provisions) Act 1961, in cases of concurrent jurisdiction, the Circuit Court exercises a jurisdiction equivalent to the High Court in all respects, including in relation to the execution of judgments and orders. The court rejected that argument, stating: “The section does not go further and prescribe that the procedural requirements in relation to the execution of judgments and orders must be equivalent.”

The plaintiff also suggested that the imposition of a 12-year time limit is ultra vires the power of the Circuit Court Rules Committee. Mr Justice Simons decided that no challenge could be raised in the application then before him, as the High Court on appeal was exercising the statutory jurisdiction of the Circuit Court, rather than its own original jurisdiction, finding same more appropriate for judicial review.

Conclusion

Having determined that the 12-year period from the judgment dated 10 November 2008 had expired, Mr Justice Simons refused the plaintiff’s application for leave to execute.

Pepper Finance Corporation (Ireland) DAC v Doyle & Ors [2023] IEHC 662