The Supreme Court has dismissed an appeal by Philip Smyth and Genport Limited against a High Court order granting several defendants leave to issue execution on costs judgments more than six years old.
The applications concerned a costs order made on 24 November 1989, sought by the first, second and fourth defendants, and further orders made on 26 June 1992 and 1 March 1995, sought by the first and second defendants. The High Court granted leave on 23 November 2001. The Supreme Court appeal was decided in a judgment delivered by Mr Justice Geoghegan on 21 April 2004, with Denham, Murray and Geoghegan JJ listed on the court heading.
The dispute concerned Order 42, rule 24 of the Rules of the Superior Courts, which allows a party to apply for leave to issue execution after six years. The Supreme Court said the decision is discretionary. An applicant must provide at least an explanation for the delay, and the court must consider any countervailing claim of prejudice. It is not necessary to establish exceptional or unusually strong reasons.
The defendants’ solicitors said execution had previously been pursued against Smyth, without success, and that they had delayed further steps while other proceedings between the parties remained unresolved. Letters from the plaintiffs’ solicitors had asked the defendants to hold off threatened bankruptcy proceedings until related proceedings were dealt with. The defendants also cited concern that they might lose the ability to enforce the costs judgments if they waited longer, amid uncertainty in Irish and English case law about limitation periods.
Smyth argued that Genport’s financial position had deteriorated and that he had sold his shares in the company in December 1999, leaving him without control over its affairs. He said the delay seriously prejudiced him and Genport. The Supreme Court agreed with the High Court that the company’s downturn began while the six-year period was still running and that Smyth had sold his interest knowing the judgments remained unpaid. It found no relevant legal prejudice.
The court did not decide whether leave could, as a matter of law, be granted to execute a judgment debt after the applicable statutory period had expired. It said that question was unnecessary to resolve in this appeal. The Supreme Court concluded that the defendants had given sufficient reasons for the delay and dismissed the appeal, leaving the High Court’s order in place. The ruling granted leave to issue execution; it does not record that the judgments were subsequently enforced or paid.