The High Court has granted Start Mortgages DAC leave to issue execution of a 2012 order for possession of a mortgaged property in County Galway, after finding the delay had been reasonably explained and had caused no asserted prejudice to the defendant.
In a judgment delivered on 10 July 2023, Mr Justice Garrett Simons said the lender met the test under Order 42, rule 24 of the Rules of the Superior Courts. The court’s order allows execution of the possession order made on 12 March 2012. The judgment does not state that possession has since been recovered.
A previous application for leave was granted in January 2020, but the defendant appealed. The Court of Appeal dismissed that appeal after he failed to comply with an “unless order” requiring written submissions. An order of possession issued in November 2020 was not enforced within its one-year period. Start Mortgages said an agreed pandemic moratorium and the Galway sheriff’s suspension of enforcement for public-health reasons prevented execution during that period.
Justice Simons focused on events after the January 2020 decision, while noting the earlier finding that the delay up to that point had been explained was res judicata between the parties. He found it inappropriate for the lender to take active enforcement steps while the appeal was pending, and accepted that pandemic restrictions then frustrated execution. The lender brought its fresh application in April 2022; the hearing was delayed in part while the defendant pursued a data access request.
The defendant raised complaints about the response to that request, a complaint to the Financial Services and Pensions Ombudsman, and settlement proposals. The judge said the Ombudsman complaint did not prevent enforcement and that the court could not require a settlement or refuse leave because the lender had declined to compromise.
The defendant also alleged that an unknown third party had bought the loan and that insurance or indemnification meant the lender suffered no loss. The judgment said these allegations were uncorroborated. It found that Start Mortgages remained the registered owner of the charge and held legal title to the loans it serviced; any beneficial interest held elsewhere did not prevent it seeking execution.
The judge’s provisional view was that Start Mortgages should recover the costs of the contested motion. Either side was given two weeks to file written submissions arguing for a different costs order.