Judgment: 2019-05-03 · Court archive

High Court grants AIB’s post-judgment application after execution stay expired

Mr Justice Max Barrett ruled that the three-month stay prevented AIB from starting an Order 42, rule 36 application during the stay. By the time the court considered the matter, the stay had expired and the bank was entitled to the order sought.

High Court · [2019] IEHC 287

Who, what, where, when and why

Who
  • Allied Irish Banks plc (Plaintiff)
  • Michael King
  • Denise King (Defendant)
  • Max Barrett (Judge)
What

Mr Justice Max Barrett ruled that the three-month stay prevented AIB from starting an Order 42, rule 36 application during the stay. By the time the court considered the matter, the stay had expired and the bank was entitled to the order sought.

Where

No place detail is included in this summary.

When

Judgment:

Why

Read the report below for the decision and any reasons given.

The High Court granted Allied Irish Banks plc an order under Order 42, rule 36 of the Rules of the Superior Courts after ruling that the bank could not start that post-judgment process while a stay on execution was in force.

Mr Justice Max Barrett delivered the judgment on 3 May 2019. AIB had obtained a debt judgment against Michael King and Denise King on 12 July 2018, with execution stayed for three months. The bank wrote to the defendants on 3 August seeking information about a particular land transfer. Their solicitor replied on 28 August that AIB was not entitled to the information and referred to the stay.

AIB issued its motion on 5 October 2018, seven days before the stay was due to expire. The Kings argued that the stay barred the bank from issuing the motion. The judge agreed with that position on the effect of the stay: an Order 42, rule 36 application formed part of the post-judgment enforcement process covered by the stay. During the stay, the debtors had been given time in which payment was not required, so the debt could not be treated as left unsatisfied for this purpose.

The court considered earlier decisions concerning when enforcement steps may begin. It was not persuaded by the reasoning in the English case Sucden Financial Ltd v Fluxo-Cane Overseas Ltd, which treated an analogous application as separate from enforcement. The judgment distinguished a case about commencing garnishee proceedings and considered the Court of Appeal’s decision in AIB plc v O’Reilly.

However, the stay had long since expired by the time the court considered the application. In those circumstances, the judge said AIB was prima facie entitled to the order and granted it. The judgment does not specify the terms of the order beyond identifying it as the relief sought under Order 42, rule 36.

Read the original court judgment

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