The High Court refused Robert Roe’s application to take over proceedings and force the sale of Concepta Dormer’s interest in land in County Laois, finding that his judgment debt had been extinguished by the Statute of Limitations.
In a judgment delivered on 13 March 2009, Ms Justice Finlay Geoghegan said the notice party was not entitled to an order under Order 33, rule 8 of the Rules of the Superior Courts because he had not proved his claim in the proceedings. She also concluded that even if the court had an inherent power to consider his application, the debt was no longer recoverable.
Roe obtained judgment against Dormer for IR£26,139 on 14 October 1993 and registered a judgment mortgage over her interest in folio 14365, County Laois, on 17 December that year. In separate proceedings, Allied Irish Banks plc obtained a well-charging order and an order for sale in July 1995 over the same lands in respect of an equitable mortgage. The bank later settled its claim with Dormer.
Before seeking to discharge its orders, the bank notified three judgment mortgage holders listed on an updated folio. Two said they had no further interest. Roe applied in December 2008 for an order directing a sale and, if necessary, substituting him for the bank in the proceedings. No advertisement inviting claims from incumbrancers had been placed, and Roe had not joined or proved his claim before making the application.
The judge said Order 33, rule 8 applies to an incumbrancer whose demand has already been proved under the preceding rule. She found that the earlier order for sale did not give an unaware, non-participating incumbrancer a right to take over the case when no sale or claims process had occurred.
The court also held that the 12-year limitation period ran from the date of judgment. Under section 38 of the Statute of Limitations 1957, the judgment debt was extinguished after that period, and the judgment mortgage ceased to operate. The judge said the 1995 proceedings and sale order did not allow Roe’s claim to be assessed as if he had applied earlier: he had not known of or participated in those proceedings.
The judge added that, even if she had discretion to order a sale, she would refuse it. Roe had taken no steps to enforce the debt since 1993, and it would be unjust to enable recovery of a debt that was otherwise no longer recoverable.
The court refused Roe’s application. It also ordered the 1995 well-charging order and sale order vacated on the bank’s application. An order striking out the proceedings was to follow, subject to a hearing on costs. The judge noted that the judgment was subject to any appeal.