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INSIGHTS | LITIGATION & DISPUTE RESOLUTION | BY ELAINE DYKE
The amendment to the Circuit Court Rules, brought about by S.I. No. 107 of 2024 CIRCUIT COURT RULES (ORDER 36) 2024 and which came into operation on 29 March 2024, is a welcome development which brings the Circuit Court Rules largely into line with Superior Court Rules by removing reference to decrees and judgments being in force for a period of 12 years.
Prior to the amendment Order 36 provided:
(9) Every decree of the Court, and every judgment in default of appearance or defence, shall be in full force and effect for a period of 12 years from the date thereof, and an execution order based on any such decree or judgment may be issued in the Office within the said period, but not after the expiration of 6 years from the date of such decree or judgment without leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.
(10) If, at any time during the period of 12 years, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application.
(13) An execution order may, on the application of the party entitled thereto, be renewed in the Office at any time during the currency of the decree or judgment in respect of which it was originally issued for the period of not more than 1 year from the date of such renewal, provided that the said decree or judgment be in full force and effect for the period for which the said execution order is so renewed. The fact of the renewal of any such order shall be indorsed thereon and the order shall be re-sealed. An order for execution so renewed shall have effect and be entitled to priority according to the time marked thereon as the date of its original issue.
Thus, an Execution Order could only be renewed for the period of time left to run in respect of the original Order for Possession.
The position was illustrated in the judgment of Mr. Justice Noonan in IL&P v Duffy & Duffy [2017] IEHC 760 where he held, on appeal from the Circuit Court, that where less than a year is left to run in respect of a Circuit Court order for possession, an execution order can be renewed but only for the period left to run of the 12 years. At paragraph 8 of his judgment, he states “The order makes clear however that the execution order cannot be renewed for a period longer than that during which the original judgment is in force. Thus, if an application for renewal were made 11 years and 6 months from the date of the judgment, the execution order could only be renewed for a period of 6 months.”
In the more recent case of Pepper Finance Corporation (Ireland) DAC v Doyle & Ors [2023] IEHC 662 Mr Justice Simons, affirmed the Circuit Court’s refusal to grant leave to execute and noted “Order 36 of the Circuit Court Rules precludes both the issuance of, and renewal of, an execution order after the expiration of 12 years from the date of the relevant decree or judgment. The judgment which it is sought to enforced in the present case is dated 10 November 2008. It follows that the application for leave to execute must be refused.”
The amended Order 36 provides:
(9) An execution order based on any decree of the Court or judgment in default of appearance or defence may be issued in the Office within 6 years from the date of such decree or judgment. After the expiration of 6 years from the date of such decree or judgment, an execution order may be issued with the leave of the Court. An application for such leave shall be made by motion on notice to the party sought to be made liable.
(10) If, at any time after the making of a decree or judgment in default referred to in rule 9, any change has taken place, by death, assignment or otherwise, in the parties entitled or liable to execution, the party claiming to be so entitled may apply to the Court on notice for leave to issue execution, and the original decree or judgment may be amended so as to give effect to any order made by the Court on the application.”
While the amendment to the Circuit Court Rules brings the procedure in that jurisdiction into line with that of the High Court in terms of removing the 12-year time limit, there remains a divergence. As noted by Mr Justice Noonan in Duffy, the Circuit Court Rules “do not require an application to court on notice to the defendant where a renewal is sought provided that the original execution order was made within 6 years, as it was in this case.” In contrast Order 42, provides that where 6 years have elapsed since the judgment or order, an application to the court will be required.
In the Circuit Court, provided that the Execution Order has issued within 6 years of the judgment or decree, it can be renewed in the office without the necessity of an application to the court. However, in an environment of many loan sales, an application to court will be required in accordance with Order 36, rule 10 on the basis of a change of the party claiming entitlement to execute whether that change occurs before or after the expiry of 6 years from the date of the judgment.
It should also be borne in mind that the change to the Circuit Court Rule does not alter the continued necessity in both the Circuit Court and the High Court to explain all the delay from the date of the judgment where an application is made for leave to issue execution after the expiry of 6 years.
How we can help
If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Elaine Dyke in our Litigation & Dispute Resolution Department on [email protected] / +353 (0)1 440 8310.
This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.