The High Court has refused Mars Capital Ireland DAC permission to execute a 2009 possession order against Con Heagney, finding that the company gave no explanation for waiting more than six years to seek the court’s leave.
Mr Justice Allen delivered judgment on 14 January 2022. The application concerned a possession order made on 23 November 2009 in favour of Irish Nationwide Building Society over a mortgaged property at Tully House, Eyre Court, Ballinasloe, County Galway. Mars Capital, as transferee of the loan and mortgage, sought leave under the Rules of the Superior Courts to execute the order in its own name.
The motion was issued on 29 January 2020. Mr Heagney opposed it, citing the lapse of time and alleged prejudice, including his continued occupation and farming of the property, investment in farm buildings, and possible effects on his mother and partner. The judge considered those arguments but refused the application because Mars Capital had not first provided grounds to engage the court’s discretion.
Under Order 42, rules 23 and 24, execution between the original parties may issue within six years. After that, a party seeking leave must offer some explanation or grounds for the lapse of time, including where entitlement to execute has changed. The judge rejected Mars Capital’s argument that the transfer of the mortgage made delay irrelevant. An assignee, he held, must meet the same requirement as the original party when applying more than six years after the order.
Mars Capital’s account described transfers of the loan and security, correspondence with Mr Heagney and attempts to arrange a meeting. The judge found this evidence vague and said the transfers, all completed by June 2014, did not explain why no application was made in the years that followed. He also found that separate proceedings against Mr Heagney and his solicitor did not explain the failure to execute the possession order.
The judge said that, without an explanation for the lapse of time, the court’s discretion to grant leave had not been engaged. He therefore refused the motion. In discussing the claimed prejudice, he said Mr Heagney’s assertions about occupation and improvements did not establish prejudice sufficient to change that conclusion; he also found that he could not rely on possible rights of third parties to advance his own case.
The court did not make a final costs order in this judgment. Mr Justice Allen listed the matter for submissions on costs on 28 January 2022, after a previous hearing date had to be abandoned because there was no appearance for Mr Heagney.