The High Court said it would grant Start Mortgages DAC leave to issue execution of a 2010 order for possession of a property in County Wexford, after finding the lender had reasonably explained its delay. The court left open whether the order should be stayed and who should pay costs, listing those matters for a further hearing on 23 January 2023.
The ruling concerns a fresh application under Order 42, rule 24 of the Rules of the Superior Courts. Mr Justice Garrett Simons said the lender had to explain the period since an earlier grant of leave on 14 October 2019. That earlier finding on the delay up to that date was res judicata between the parties, he said.
The court accepted two main explanations for the later delay: an appeal against the 2019 order, which was struck out in September 2020 after the defendants failed to file books of appeal, and the lender’s efforts to explore alternatives to repossession. The lender wrote to the defendants about the mortgage-to-rent scheme in May 2021; the first defendant later said they were not interested. In February 2022, the first defendant indicated through an authorised third party that the defendants wanted to discharge the debt through the sale of other land.
The judge found the explanation met the threshold of a reasonable explanation and said no countervailing prejudice had been asserted. He noted that the first defendant, through a McKenzie friend, had acknowledged the lender’s considerable forbearance.
The first defendant had sought an adjournment in December 2022 to allow time to pursue a protective certificate for a proposed personal insolvency arrangement. The application had not yet been made because a practitioner was seeking clarification about whether an earlier, unrelated mortgage had been released. The judge refused the adjournment but said that if he granted leave, the parties could address whether a stay should give time for the insolvency proposal.
The judgment also addressed the 12-year limitation period for actions upon judgments. The judge said the application for leave was not statute-barred, noting that the motion had been made returnable before the court within 12 years and that the order for possession had not become enforceable until after its six-month stay. The appellate position on whether limitation applies to execution steps remains open.
The court’s conclusion was to grant leave to execute the possession order. The judgment did not itself decide whether execution would be stayed, or determine costs; those issues were set for further submissions.