The Court of Appeal has allowed Michael and Denise King’s appeal against an order granting Allied Irish Banks plc discovery in aid of execution of a judgment debt. It held that the bank issued its motion while a stay of execution remained in force and without seeking the court’s leave. The motion was premature and should be struck out.
The judgment, delivered by Ms Justice Máire Whelan on 30 September 2020, concerned a High Court judgment of €1,038,867.08 against the Kings, jointly and severally, plus costs. On 12 July 2018, execution of that judgment was stayed for three months. The bank did not appeal the stay or apply to vary it.
AIB issued its motion on 5 October 2018, about a week before the stay was due to expire. It sought oral examinations of the Kings about their ability to pay, production of documents and affidavit discovery, including information about a transfer of land in County Meath. The motion was heard after the stay had expired.
The High Court judge found that AIB was not entitled to issue the motion during the stay, but nevertheless granted the requested relief. He considered that, by the hearing, the stay had long expired and the bank was prima facie entitled to the order. The Kings appealed that decision.
The Court of Appeal held that the relevant date was when the motion was issued, not when it was heard. While the stay operated, the Kings had no present obligation under the judgment to pay, and AIB was not entitled to enforce it through an application under Order 42, rule 36 of the Rules of the Superior Courts. Such an application formed part of the post-judgment enforcement process. The bank had neither obtained leave to issue it nor identified a reason for proceeding without leave.
The court distinguished judgment mortgages, which legislation permits to be registered despite a stay unless the court orders otherwise. It did not decide whether advance discovery would have been justified if the motion had been properly brought; it said that question did not need to be addressed.
The appeal was allowed and the High Court order was set aside. The Kings were held entitled to their costs in both courts, subject to AIB’s opportunity to file written submissions opposing that costs order within 28 days of electronic delivery, with the Kings allowed a like period to respond. The judgment does not state the final outcome of that costs process.