Judgment: 2020-09-11 · Court archive

High Court excludes protective-certificate period from possession-order limitation calculation

The court declared that a period when the defendants’ protective certificate was in force should not count toward the limitation period. It did not grant fresh leave to execute or decide whether a limitation period applies to an application for leave.

High Court · [2020] IEHC 444

Who, what, where, when and why

Who
  • Start Mortgages DAC (Plaintiff)
  • Bernard M Ward (Defendant)
  • Mary T Ward (Defendant)
  • Niamh Hyland (Judge)
What

The court declared that a period when the defendants’ protective certificate was in force should not count toward the limitation period. It did not grant fresh leave to execute or decide whether a limitation period applies to an application for leave.

Where

Places mentioned in the report

  • Donagh Patrick, Headford, Co. Galway
  • Donagh Patrick
  • Headford
  • Co. Galway
When

Judgment:

Other dates in the report
  • 25 November 2019; 4 June 2020

    Start Mortgages DAC had asked the court for fresh leave to issue execution and for a declaration about the application of the Statute of Limitations. The lender already had an order made by Mr Justice Simons on 25 November 2019 granting leave to issue execution for 12 months. When the lender asked the Central Office to issue the execution order on 4 June 2020, it was told to apply to court to determine whether the statutory time limit had been met.

  • 11 December 2019; 27 April 2020; 9 May 2020

    Ms Justice Niamh Hyland delivered judgment on 11 September 2020. She declared that the period from 11 December 2019 to 27 April 2020 was not to be reckoned in calculating the limitation period for the possession order. The judgment says the certificate ultimately expired on 9 May 2020, after two renewals; the declaration describes the period to be excluded as ending on 27 April.

  • 24 September 2020

    The lender argued that section 96(7) of the Personal Insolvency Act 2012 required time covered by a protective certificate to be disregarded when calculating an applicable limitation period. Justice Hyland accepted that Order 42, rule 24, which provides for an application for leave to issue execution after six years, was a process covered by the relevant provisions of section 96. On the calculation accepted by the court, the 12-year period would not expire until 24 September 2020.

Why

Reasons reported in the judgment

The judge said there was no need to grant fresh leave because the lender could rely on the existing November 2019 order. She said there was no basis for the Central Office to refuse to issue an execution order on foot of it, and expected any application to be expedited if presented in a timely manner. The lender had liberty to apply to the court about expedition.

The High Court ruled that a period when Bernard M Ward and Mary T Ward’s protective certificate was in force must be left out of the calculation of the limitation period for a 2008 order for possession of their family home in Donagh Patrick, Headford, Co. Galway.

Ms Justice Niamh Hyland delivered judgment on 11 September 2020. She declared that the period from 11 December 2019 to 27 April 2020 was not to be reckoned in calculating the limitation period for the possession order. The judgment says the certificate ultimately expired on 9 May 2020, after two renewals; the declaration describes the period to be excluded as ending on 27 April.

Start Mortgages DAC had asked the court for fresh leave to issue execution and for a declaration about the application of the Statute of Limitations. The lender already had an order made by Mr Justice Simons on 25 November 2019 granting leave to issue execution for 12 months. When the lender asked the Central Office to issue the execution order on 4 June 2020, it was told to apply to court to determine whether the statutory time limit had been met.

The lender argued that section 96(7) of the Personal Insolvency Act 2012 required time covered by a protective certificate to be disregarded when calculating an applicable limitation period. Justice Hyland accepted that Order 42, rule 24, which provides for an application for leave to issue execution after six years, was a process covered by the relevant provisions of section 96. On the calculation accepted by the court, the 12-year period would not expire until 24 September 2020.

The judge said there was no need to grant fresh leave because the lender could rely on the existing November 2019 order. She said there was no basis for the Central Office to refuse to issue an execution order on foot of it, and expected any application to be expedited if presented in a timely manner. The lender had liberty to apply to the court about expedition.

The court did not decide whether a limitation period applies to an application for leave to issue execution. Justice Hyland said that question did not yet arise for determination and declined to rule on the lender’s request for a declaration on that point. The judgment records that the defendants live at the home with their two daughters and grandson.

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