The High Court has dismissed James Hunter’s appeal against an order allowing Mars Capital Ireland DAC to issue execution of a 2010 order for possession, affirming the Circuit Court’s decision.
The appeal was heard as a rehearing of Mars Capital Ireland’s application for leave to enforce the order. Mr Justice Garrett Simons said the company had shown a good reason for not executing the order earlier and that the lapse of time had not caused prejudice to Mr Hunter. The ruling did not decide the separate question of final costs: the court invited written submissions if Mr Hunter wished to seek a different costs order and listed the case for final orders on 11 July 2022.
The possession order was made by consent on 11 January 2010 in favour of the then plaintiff, Irish Nationwide Building Society, over lands registered to Mr Hunter. It included a three-month stay and could be vacated if arrears were paid during that period or another time agreed by the parties. Mars Capital Ireland says it later acquired the benefit of the order. The Circuit Court substituted it as plaintiff in June 2017; Mr Hunter did not appeal that substitution decision.
Mars Capital Ireland issued four motions seeking leave to execute. The first three were struck out, including two for non-attendance. The fourth motion, issued in February 2020, resulted in the Circuit Court granting leave on 21 October 2021. Mr Hunter appealed.
His objections had included alleged delay, lack of consent to the assignment, lack of service of the original order, stress and health effects, and legal costs charged to his mortgage account. At the High Court hearing, his counsel did not pursue the first three objections. The judge said the assignment issue was bound by the unappealed substitution order and that rules concerning delay in prosecuting ongoing proceedings did not govern an application to execute an existing order.
The judge acknowledged that Mars Capital Ireland’s procedural errors meant the application could have been decided earlier. But the company had taken steps to enforce the order from September 2016, and Mr Hunter would have known of those efforts by June or July 2017 at the latest. The court also considered evidence of engagement between Irish Nationwide and Mr Hunter during part of the first six years, including payments recorded up to 28 February 2013 and a financial statement submitted in October 2014. The judgment noted a dispute about whether negotiations continued in 2014 and 2015.
The court found that the asserted stress and health effects were not caused by delay in execution. As to legal fees, Mars Capital Ireland said on affidavit that it had removed legal costs from the sums it claimed were due. The High Court dismissed the appeal and affirmed the Circuit Court order granting leave to issue execution; it did not make a final costs order in the judgment.