The Court of Appeal has refused an appeal by Timothy Daire against the refusal of leave to bring fresh proceedings challenging a possession execution order. The proposed claim argued that the order, issued in April 2013, fell outside the six-year period running from a High Court possession order made in July 2006.
An Isaac Wunder order required Daire to obtain the court’s permission before starting further proceedings against the bank and Ronald Weisz. That restriction followed earlier litigation over loans secured on lands. In 2006, the High Court granted the bank possession of some lands and made well-charging orders over others. Daire appealed. In May 2012, the Supreme Court recorded his withdrawal of that appeal and affirmed the High Court order, with changes to figures in the well-charging part. The possession order was unchanged, and the appeal had not suspended its enforcement.
The bank obtained an execution order in April 2013, and the County Registrar took possession of the lands on 28 May 2013. Daire later sought permission to bring proceedings for a declaration that the execution order was invalid under Order 42, rule 23 of the Rules of the Superior Courts, which provides for execution within six years. He argued that the period ran from the 2006 High Court order, rather than the Supreme Court’s 2012 order.
The High Court refused leave, reasoning that the claim was bound to fail because the operative date was the Supreme Court order. On appeal, the Court of Appeal said that reasoning was flawed: the authority relied on concerned an appeal court reversing a lower court’s decision, whereas the Supreme Court had affirmed the possession order after the appeal was withdrawn. The Court of Appeal considered that Daire’s proposed issue was arguable at the leave stage. It also rejected the bank’s argument that the case should be refused as futile merely because it might obtain an extension of time to issue a new execution order.
However, the court held that Daire could and should have raised the timing issue earlier, when opposing the bank’s 2013 application to dismiss his other proceedings. The relevant information was available then, even if its significance had not been appreciated. The court also noted that the execution order had already been carried out, so a declaration about its validity could achieve no useful purpose. It therefore disallowed the appeal. The court did not determine the proposed claim’s ultimate merits.