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You are here: BAILII >> Databases >> Irish Court of Appeal >> Mars Capital Finance Ireland DAC v Phelan (Unapproved) [2025] IECA 117 (23 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA117.html
Cite as: [2025] IECA 117

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THE COURT OF APPEAL

 

Court of Appeal Record No.: 2024 85

High Court Record No.: 2015 393S

Neutral Citation No.: [2025] IECA 117

 

 

Woulfe J.

Binchy J.

MacGrath J.

 

 

 

BETWEEN/

 

 

MARS CAPITAL FINANCE IRELAND DAC

 

 

                                                                                                                                                  

                                                                                                                             PLAINTIFF/

RESPONDENT

- AND -

 

 

 

ALAN PHELAN

 

DEFENDANT/

                                                                                                                       APPELLANT

 

 

- AND -

 

 

 

 

 

 

 

 

 

 

JUDGMENT of Mr. Justice Binchy delivered on the 23rd day of May 2025.

 

1.             On 27th February 2015 AIB Mortgage Bank, the original plaintiff in these proceedings  (hereafter the "original plaintiff") issued proceedings against the defendant by way of summary summons seeking judgment in the sum of €767,235.57, together with interest and costs in respect of monies outstanding by the defendant pursuant to facilities advanced to the defendant between 2000 and 2007.  These proceedings arose out of loans originally advanced to the appellant by Allied Irish Banks plc ("AIB").  AIB subsequently transferred its interest in the loans to the original plaintiff.  On 6th May 2016, an order was made by consent of the parties, by the Master of the High Court, whereby it was ordered that the original plaintiff recover as against the appellant the sum of €800,534.05.  By the same order, a stay of execution was placed on the judgment for a period of four months commencing on 29th April 2016.  For a variety of reasons which I address later in this judgment, the judgment was not executed.  On 30th April 2021, the original plaintiff executed a Deed of Transfer (hereafter the "Deed of Transfer") whereby it did grant, convey, assign, transfer and assure unto the respondent all of its rights, title, interest and benefit (past, present and future) in and under a series of loans, including the loans of the appellant that constitute the subject of the summary judgment proceedings that gave rise to the consent judgment of 6th May 2016.

2.             On 21st December 2023, the respondent issued a motion seeking the following reliefs:

(1)          An order pursuant to O. 42, r. 24 of the RSC or in the alternative to the inherent jurisdiction of the court granting the respondent leave to issue execution of the Judgment; and

(2)          An order pursuant to O. 17, r. 4 substituting the respondent as plaintiff in the title of the within proceedings and directing that the within proceedings shall be carried on thereafter as between the respondent in place of the original plaintiff. 

3.             That application came on for hearing before the High Court (Barr J.) on 26th February 2024.  Both elements of the application were fully contested by the appellant, who represented himself at the hearing.  Having heard the parties, Barr J., in an ex tempore judgment, granted the orders sought by the respondent.  It is from that Judgment and the orders made consequent upon the same that the appellant now appeals. 

4.             I should add, in the interests of completeness, that following upon the judgment of the High Court the appellant issued a motion seeking a stay on the orders made by Barr J.  That application came on for hearing before Costello J. (as she then was) on 31st May 2024, and was refused.  Since therefore the order of Barr J. came into effect on the date it was perfected, i.e. 29th February 2024, the title to this judgment bears the name of Mars Capital Finance Ireland DAC as respondent, rather than the original plaintiff, which took no part in this appeal.  

5.             In 2015 a receiver, Mr. Ken Tyrrell, was appointed over the properties secured by the appellant to AIB at the time that he originally drew down the loans from AIB.  On 20th April 2022 the appellant issued proceedings against Mr. Tyrrell and also against the respondent and the original plaintiff.  In these proceedings, the appellant claims damages against the defendants under a number of headings, arising from the conduct of the receivership.  I mention all of this only because it has a relevance to one of the grounds of appeal advanced by the appellant, which I shall explain later.

Grounding Affidavit of Ronan Hopkins

6.             In his affidavit grounding the application to the High Court, Mr. Hopkins summarises the background leading up to the Judgment.  He then proceeds to explain the delay in executing the Judgment.  Five reasons are provided. 

7.             The first reason relates to a period of four months following the Judgment during which it is said that it was agreed that the appellant would provide a statement of affairs to the original plaintiff, presumably with a view to trying to reach a settlement.  However, it appears that no agreement was reached during the period of the four-month stay.

8.             Secondly, Mr. Hopkins says that there were negotiations between the parties during the course of 2017, and he refers to and exhibits a letter of 28th February 2017 from solicitors then acting on behalf of the appellant to the solicitors for the original plaintiff.

9.             Thirdly, Mr. Hopkins avers, the receivership was placed on hold when the original plaintiff was notified that the appellant had entered into the personal insolvency arrangement process.  This appears to have occurred during the course of 2019, but ultimately that process was terminated in or about 13th November 2019.

10.         Fourthly, Mr. Hopkins avers that the Covid-19 pandemic caused an additional (unspecified) delay, during the course of which, on 30th April 2021, the original plaintiff disposed of its interest in the appellant's loans to the respondent.  Mr. Hopkins exhibits a copy of the Deed of Transfer.

11.         The fifth and final reason provided by Mr. Hopkins in respect of the delay in executing the Judgment, is that the respondent's principal focus had been on defending the plenary proceedings issued against it by the appellant. 

12.         Mr. Hopkins then proceeds to aver that "goodbye" and "hello" were letters were sent respectively by the original plaintiff and the respondent to the appellant on 10th May 2021 and 14th May 2021.  He exhibits copies of these letters.  So far as the "goodbye" letter is concerned, this was sent to a Mr. Edmond Seery, an accountant who had been acting as the appellant's agents in his negotiations with the original plaintiff.  In its cover letter to Mr. Seery (enclosing the letter to the appellant) the original plaintiff stated: "As you have been appointed as the Third Party Advisor for the Borrower, we are writing to you with important information in relation to accounts belonging to the Borrower."  The letter then continues as follows: -

"We enclose the letter(s) that would have been sent to the Borrower, had they not been in a Third Party Advisor Arrangement.  Please share the details of the enclosed letter(s) with the Borrower."

13.         The "hello" letter sent by the respondent to the appellant on 14th May 2021, was addressed to him at Cloneyheigue, Kilbeggan, County Westmeath.  As will become apparent, the appellant maintains that he never resided at that address.  This is also the address to which the plaintiff wrote to Mr. Seery.

Replying Affidavit of the Appellant

14.         On 20th February 2024, the appellant swore a replying affidavit to that of Mr. Hopkins.  At the outset of this affidavit, the appellant objected to the application on the grounds that, in circumstances where the proceedings have "sat in abeyance for almost 8 years" the respondent should have served a notice of intention to proceed as required (in the submission of the appellant) by O. 122, r. 11 RSC.  He further avers that, together with his sister, he is responsible for the care of his elderly mother, and that he did not have sufficient time to address the application, and this averment is relevant to one of the grounds of appeal herein. 

15.         The appellant makes a number of averments that are directed at the validity of the appointment of Mr. Tyrrell as receiver, rather than at the substance of the application being advanced by the respondent.  His main objections to the respondent's application may be summarised as follows:

(1)          He claims that the Deed of Transfer was not executed by either AIB or the original plaintiff.  It is expedient to address this issue immediately: it is apparent from the copy exhibited by Mr. Hopkins that this is simply not the case - the Deed of Transfer has clearly been executed by both AIB and the original plaintiff.

(2)          Secondly, the appellant avers that it is apparent from the Deed of Transfer that the consideration paid for the transfer of the various facilities and associated securities by AIB and the original plaintiff to the respondent was provided by a company named Panelview DAC, and not by the respondent.  There are then a number of averments whereby the appellant argues that it is Panelview that is the beneficiary of the secured assets and facilities (including those of the appellant) and that the respondent is merely a manager/administrator of the same.  As such, the appellant argues that the Deed of Transfer is not effective to transfer title of the appellant's loans and related securities to the respondent and for that reason the application under O. 17, r. 4 RSC should be refused.

(3)          As to the "goodbye" letter which was sent by the original plaintiff to Mr. Seery, while the appellant acknowledged that he had engaged Mr. Seery to negotiate on his behalf, he says that this is insufficient for the purpose of giving notice of the transfer which the appellant maintains should have been given to him as the borrower and not to any other party.  He further avers that Mr. Seery has confirmed to him that he (Mr. Seery) did not receive the letter.

(4)          In regard to the "hello" letter, the appellant avers that he never resided at the address appearing on that letter, i.e., Cloneyheigue, Kilbeggan, County Westmeath.

(5)          For these reasons, the appellant avers, the respondent is not entitled to be substituted as plaintiff in the proceedings.  Furthermore, he avers that the affidavit of Mr. Hopkins is so replete with errors and omissions that the appellant should be given an opportunity to cross-examine Mr. Hopkins.  He avers that he issued a notice to cross-examine Mr. Hopkins and served the same upon him by registered post on 7th February 2024, and he exhibits a copy of same.

 

Judgment of the High Court

16.         At the hearing of the motion, the appellant objected to the applications before the Court on the grounds set forth in his affidavit, as summarised above.  In an ex tempore judgment, Barr J. granted the relief sought.  He first considered the proofs required to be satisfied by the respondent.  He said that he was satisfied, having regard to the matters set out in the affidavit of Mr. Hopkins, and in particular to the Deed of Transfer and the letter of notification exhibited to his grounding affidavit, that the respondent had taken an assignment of the appellant's loans and the securities granted in connection with the same, including the benefit of the Order.  He said that he did not think that the fact that the consideration for the transfer had been provided by another company (Panelview) was material; he said that the Deed of Transfer itself makes it very clear what is being assigned and to whom.  He was satisfied that the assignment included the loans that constituted the subject matter of the proceedings between the appellant and the original plaintiff. 

17.         The judge further stated that it is clear that where the underlying loans are transferred to an assignee then even if there is no reference in the assignment to the judgment, the judgment travels with the loans.  In conclusion on the issue, he said that he was satisfied that the respondent is the assignee of the loans, the security, and the judgment obtained by the original plaintiff against the appellant.  For these reasons, the judge considered that it was appropriate to make the orders sought substituting the respondent for the original plaintiff in the proceedings. 

18.         The judge then turned to the second relief sought, being the application for leave to execute the Order, pursuant to O. 42, r. 24 RSC.  In doing so, he first considered the explanations provided by Mr. Hopkins for the delay in seeking to execute the Order.  He accepted the reasons put forward by Mr. Hopkins for the delay being the reasons relied upon by Mr. Hopkins in his affidavit, as summarised above.  He also expressed himself as being satisfied that "the letter" addressed to the appellant was likely to have come to his attention.  This is, I think, a reference to the "goodbye" letter which was sent to Mr. Seery who was acting as the appellant's financial advisor, and who, the judge noted, was present at the hearing of the motion.  In any case, so far as notice of the assignment is concerned, the judge was satisfied that even if the requirements as to the delivery of "goodbye" and "hello" letters to the appellant had not been satisfied, those requirements were met by the service on the appellant of the motion, grounding affidavit and exhibits, which included the goodbye and hello letters.  The judge said that the appellant is fully aware from those documents as to whom he should make payment of the debt. 

19.         The judge did not accept that it was necessary to serve a notice of intention to proceed.  In his view, that requirement only relates to steps taken in substantive proceedings, and is unnecessary where a party is seeking to enforce a judgment, even one that is more than six years old. 

20.         As to the notice of intention to cross-examine, the judge held that, while there may be a right to cross-examine the deponent of an affidavit where proceedings are continuing up to the point of judgment, that thereafter there is no automatic right to do so and leave of the court is required.  Since no leave of the court had been sought or obtained, the judge held that this could not be a ground upon which to refuse the reliefs sought.  The judge therefore made the orders sought in the terms of the notice of motion, and granted the respondent the costs incurred by it in connection with the motion, having regard to ss. 168 and 169 of the Legal Services Regulation Act, 2015, and O. 99 RSC.

 

Notice of Appeal and Submissions

21.         In his notice of appeal filed on 25th March 2024, the appellant relies upon eleven grounds of appeal.  However, by the time the appeal came on for hearing, the appellant had retained legal representation, and his counsel relied upon three grounds of appeal as follows:

(1)          That the High Court judge, in granting the orders sought under O. 17, r. 4 RSC, erred in applying a prima facie test to the transfer of the original plaintiffs' interest in the Order to the respondent.  It was submitted on behalf of the appellant that in circumstances where there will be no further opportunity to review the validity or effectiveness of the Deed of Transfer, the judge should have applied the standard of balance of probabilities, as held by Peart J. in Bank of Scotland plc v. McDermott [2019] IECA 142.  Related to this point, it was further submitted that the judge erred in failing to allow the appellant to cross-examine the respondent's deponent, in circumstances where a notice to cross-examine had been served;

(2)          The judge erred in accepting the explanations of the respondent for the delay in seeking to execute the Order.  Counsel submitted that no explanation at all was offered for a period of one year, between April 2021 and April 2022.  He submitted that the respondent failed to meet the test referred to by this Court in Ulster Bank Ireland Ltd. & Anor v. Quirke [2022] IECA 283, which he submitted requires an applicant to account for the failure to execute an order throughout the entirety of the six-year period referred to in O. 42, r. 24.

(3)          The judge erred in not granting the appellant an adjournment, in circumstances where the appellant had made it clear that he had not had enough time to prepare himself for the hearing, and this was the first return date of the motion.

 

Discussion and Decision

Ground 1: The trial judge applied the incorrect test for the purposes of Order 17, Rule 4.

22.         It was submitted on behalf of the appellant that the High Court judge applied the incorrect test to this application, in circumstances where, if the application is granted, and if leave to execute under O. 42 is simultaneously granted, there would be no further opportunity to review the validity of the transfer of the appellant's loan facilities to the respondent.  The appellant submitted that it is apparent from the DAR transcript of the proceedings in the High Court that there was no discussion at all about the threshold test applicable to such applications, that is to say whether the validity of the transfer should be considered on the basis of the normal civil standard of balance of probabilities, or the lesser prima facie standard.  While it is well established that, where such applications are made ex parte, the assessment is undertaken on a prima facie basis, this is not so where the assessment is being undertaken on notice and at a later stage, and in circumstances where there would be no further opportunity to challenge the interest of the applicant in the subject matter of the proceedings, in this case being the appellant's loan facilities with the original plaintiff.  In these circumstances, it is submitted that it is well established that the applicable threshold is the balance of probabilities, and the appellant refers to the judgment of this Court in Ulster Bank Ireland Ltd. & Anor v. Quirke in which, giving judgment for the Court, I stated, at para. 48: -

"Applications under O.17, r.4 will in some cases be made before judgment, and in others after judgment.  In contrast, all applications under O.42, r.24 are, of their very nature, post judgment.  There will be no trial of the action at which the title of the assignee can be tested.  It is conceivable that it could be tested in subsequent enforcement proceedings, as was submitted on behalf of Promontoria, but that is uncertain, not least because one of the principal methods of enforcing judgments is by way of an order of fieri facias, which involves no application to court.  This suggests to me that an order made under O.42, r.24 should be treated as a final order, and should only therefore be made if the court is satisfied, on the balance of probabilities, that the applicant is entitled to the order sought.  This is consistent with the decision of Peart J. in Bank of Scotland v. McDermott, referred to above in relation to post judgment O.17, r.4 applications.  I think that it is also consistent with the views expressed by Hardiman J. in Minister for Agriculture v. Alte Leipziger, as it is, more likely than not, the case that the disposal of the application will finally dispose of the issue."

23.         In the submission of the appellant, it is apparent that the High Court judge approached the matter on the basis of a prima facie case only.  The appellant submits that it appears that at the time of the High Court proceedings, the respondent itself was under the impression that the applicable threshold was the prima facie standard, because Mr. Hopkins, in an affidavit sworn for the purpose of resisting a stay application subsequent to the decision of the High Court, expressly averred that: -

"...the standard of proof to be applied on an application for an order pursuant to O.17, r.4, is that the applicant establish a prima facie case which is a relatively low threshold to be met on such an application ...."

24.         In response to this argument, counsel for the respondent submitted that the High Court judge did not apply a prima facie test, either expressly or impliedly.  On the contrary, counsel submits that it is apparent from his analysis that the High Court judge was approaching the assessment applying the balance of probabilities standard, even if he did not expressly address the applicable standard.  In this regard counsel drew the attention of the court to the following text from the transcript of the ex tempore judgment: -

"I am satisfied that the fact that the consideration for that transfer may have been provided by another company is immaterial.  The deed itself makes it very clear what is being assigned and who the assignee is and it is equally clear that the assignee is the applicant company.  And it includes, inter alia, the loans which were the subject matter of the proceedings between the plaintiff and the defendant and which ultimately resulted in the consent judgment obtained in May of 2016.  And it is clear that where the underlying loans are transferred to an assignee, then even if there is no reference to the judgment, the judgment goes with it.  And that has been established in a number of recent cases and seems to me to be beyond doubt.  So, I am satisfied that the applicant is the assignee of the loans and of the securities, and more importantly, of the judgment that was obtained by the plaintiff against the defendant and, accordingly, it is appropriate to make an order as sought at para. 2 of the notice of motion substituting the applicant company for the plaintiff in these proceedings."

25.         It is clear from the transcript of the High Court proceedings that neither party addressed the High Court judge on the test to be applied to the application.  Nor did the High Court judge make any express reference to what he considered to be the applicable test.

26.         At the hearing of this appeal, there was no dispute between the parties that the standard to be applied to the application is that of the balance of probabilities.  That being the case, it seems to me that the appropriate approach for this Court to take in these circumstances is to consider whether or not the conclusion reached by the trial judge in the passage quoted above is one that was open to him on the balance of probabilities, even if he did not explicitly state that that was the test he was applying.  In my view, there can scarcely be any doubt that this is so.

27.         The only argument advanced by the appellant to the effect that the Deed of Transfer was not effective to transfer ownership of the appellant's loan facilities to the respondent was that it is apparent from the face of the Deed of Transfer that the purchase monies were provided not by the respondent but by Panelview.  On this basis, the appellant submits that Panelview is the true owner of the appellant's loans, and not the respondent.  However, this argument is misconceived. 

28.         As the High Court judge found, the Deed of Transfer itself makes it plain that the assignee of the appellant's loans is the respondent, and not Panelview.  The fact that the purchase monies may have been provided by another entity is, as the High Court judge found, immaterial.  At the very most, it may be the case that the respondent holds the assets assigned to it under the Deed of Transfer on trust for Panelview, in which case it is the legal owner of those assets, while Panelview may be the beneficial owner.  Even if that is the case however, the appropriate party for the purpose of the proceedings would be the trustee, and not the beneficiary of the assets.  For these reasons, I am satisfied that the Deed of Transfer, on the balance of probabilities, is effective to transfer the original plaintiff's title in the appellant's loans to the respondent. 

29.         I would add that in any case, the choice of words used by the High Court judge in giving his decision on this issue were unequivocal and he quite clearly did not reach his conclusion on this issue on a prima facie basis.  In arriving at his conclusion on this issue, he expressed himself in unambiguous terms and was manifestly satisfied that the Deed of Transfer was effective to assign the appellant's loans and the Order to the respondent.  I would therefore dismiss this ground of appeal.

30.         So far as the appellant's notice of intention to cross-examine Mr. Hopkins is concerned, counsel submitted that the appellant had an entitlement to cross-examine Mr. Hopkins on the basis that if the Court made an order substituting the respondent in the proceedings for the original plaintiff, it would, for all practical purposes, be a final order and not subject to any review.  In those circumstances, it was submitted that it is clear from the authorities that a person wishing to cross-examine a deponent who has sworn an affidavit in opposition to his or her case is entitled to test the evidence of that deponent, as of right, by cross-examination, and leave of the Court is not required.

31.         That argument may well be persuasive in the context of interlocutory applications having a final character before judgment in the substantive proceedings, but it takes no account of the fact that judgment has already been granted in these proceedings, on consent. 

32.         The character of orders under O. 42, r. 24, fell for consideration in Ulster Bank Ireland Limited & Anor v. Quirke [2022] IECA 283.  At para. 48 of the judgment in that case, quoted above, I concluded that an order made under O. 42, r. 24 should be treated as a final order, for the reasons set out therein.  The issue arose for consideration in that case in the context  of the threshold test applicable to such applications, i.e. prima facie or balance of probabilities, as distinct from that in which it now arises, i.e. whether the respondent to such an application is entitled to cross-examine any deponent who has sworn an affidavit in support of the same. 

33.         In Bank of Scotland plc v. McDermott [2019] IECA 142, Peart J. addressed these issues, holding as follows: -

"In such cases the correct test is that applicable in civil proceedings generally, namely on the balance of probabilities. The evidence will nonetheless be adduced in the normal way in such applications by affidavit, and if necessary any deponent may be cross-examined on their affidavit as provided for by the Rules of the Superior Courts. But such applications remain purely procedural in nature, and there can be no question of such an application becoming in the nature of a mini trial."

34.         It seems clear that in so holding, Peart J. was not addressing an argument that a respondent to such an application may have an entitlement to cross-examine any person who has sworn an affidavit on behalf of the moving party as of right.  He simply refers to the Rules of the Superior Courts, which make provision for cross-examination both in O. 40, r. 1 and O. 40, r. 36.  Order 40, r. 1 provides that the court may, on the application of a party, order the attendance for cross-examination of a person who has sworn an affidavit.  Leave of the Court is clearly required under this rule.  Moreover, the cautionary note sounded by Peart J. that such applications should not be permitted to become in the nature of a mini trial in my view makes it clear that cross-examination will only be permitted in circumstances where there is a conflict of fact which cross-examination may assist the court to resolve.

35.         Counsel for the appellant submitted that if the appellant was obliged to obtain the leave of the court to cross-examine Mr. Hopkins, he should, in the circumstances, have been permitted an adjournment to make such an application, having regard to the fact that he had served a notice to cross-examine, and also having regard to the fact that the appellant had made it clear to the High Court judge that he had not had enough time to prepare for the application.  I would have some sympathy for this submission if the appellant had been able to identify a conflict of fact requiring cross-examination.  In answer to a question from this Court as to what issue of fact necessitated cross-examination, counsel for the respondent replied that there were issues relating to the validity of the transfer of the appellant's loans to the respondent, and he referred in particular to issues arising out of the fact that the purchase monies for the loans transferred by original the plaintiff to the respondent had been provided by Panelview and not by the respondent.  The issues raised by counsel for the appellant under this heading were clearly matters of law and not matters of fact requiring cross-examination.

36.         I should add that in his written submissions, the appellant had relied not on O. 40, r. 1, but on O. 40, r. 36, and he submitted that the High Court judge had erred having regard to the express wording of O. 40, r. 36 which provides: -

"When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the leave of the Court. ...."

37.         The appellant submitted that the High Court judge erred in not allowing him to cross-examine the deponent for the respondent in circumstances where he had served a valid notice to cross-examine.

38.         This submission is, however, misconceived.  Order 40, r. 36 applies to the trial of an action upon affidavit.  Order 40, r. 1 RSC applies to interlocutory applications and proceedings commenced by way of notice of motion or petition.  The question as to which rule may apply in any given application can sometimes be one of complexity (see, for example paras. 118 - 125 of my judgment in Criminal Assets Bureau v. Routeback Media AB [2024] IECA 112).  In my view in circumstances where judgment has already been obtained and what is sought is leave to execute that judgment, the applicable rule in the circumstances of this case is O. 40, r. 1, and it was incumbent on the appellant to obtain the leave of the court to cross-examine Mr. Hopkins.  As I have already said, I would have had some sympathy with the argument that he should have been granted an adjournment to make such an application, having attempted to follow the rules and having served a notice to cross-examine, if the appellant had identified any relevant dispute on the facts, but no such issue was identified either in the written submissions of the appellant or by counsel on his behalf at the hearing of this appeal.  It follows from what I have said above therefore that there was no error on the part of the High Court judge in holding that the appellant was not entitled to cross-examine Mr. Hopkins without leave of the Court. 

Delay

39.         The appellant contends that the respondent has not given adequate reasons to explain the failure on the part of the original plaintiff and the respondent to execute judgment within the six years provided by O. 42, r. 24 RSC.  With respect, however, I must disagree.  The respondent identified five  reasons for the delay, the facts  of which were not disputed by the appellant.  The first four reasons, chronologically,  were: the initial four month stay placed upon the Order, settlement discussions between the parties, as evidenced by a letter from the solicitors of the appellant of 28th September 2017,  the personal insolvency process in which the appellant engaged, which in turn had an impact upon the progression of the sale of the secured properties, and finally the impact of the Covid-19 pandemic.  While, with the exception of the initial four month period, the precise duration of each of these periods is uncertain, in overall terms I think that it is clear that the respondent (or its predecessor, the plaintiff) had a reason not to seek to execute the Order until at least in or about August 2020, assuming the impact of the pandemic to be of the order of about six months, which in other contexts has been held to be  a reasonable period to take account of the impact of the pandemic on the progression of litigation.  The combined temporal impact of all of those various reasons is of the order of four years.  The Order was granted on 4th September 2016 and no application would have been necessary under O. 42, r. 24, or prior to 5th May 2022. 

40.         Not very long before that, the appellant had, on 20th April 2022, issued his proceedings against the original plaintiff, the respondent and the receiver.  These proceedings give rise to the fifth reason for delay relied upon by the respondent . However, in my view the mere fact that the respondent has to engage with these proceedings  is not an issue that may properly be taken into account in favour of the respondent when considering explanations for delay in execution.  While the reliefs sought by the appellant against the parties to those proceedings arise out of the appointment of the receiver over the assets secured by the appellant to the original plaintiff (the benefit of which security is now enjoyed by the respondent pursuant to the Deed of Transfer), the principal relief sought by the appellant in those proceedings is damages and it does not seem to me that those proceedings in any way impeded the original plaintiff or the respondent from executing the Order.  Moreover, it has been held in the context of applications to dismiss on the grounds of inordinate and inexcusable delay, that the fact that a party has to engage with other proceedings is not an excuse for the purposes of applications of that kind.

41.         Nonetheless, it is apparent that the various other reasons given by the respondent for not executing the order within the period of six years occupied in excess of four years of that period, while the application for leave to execute was brought on 4th January 2024, approximately 19 months outside the six-year period.  So, therefore it might be said that the respondent "lost" four years of the six years allowed for execution by O. 42, r. 24 on account of the first four  reasons relied upon by the respondent, and thereafter moved to execute within a further period of 19 months.  It seems reasonable to infer therefore that if those four years had not been lost to the process for the reasons given by the respondent, it is very possible if not likely that the application would have been made well inside the six-year period allowed for by the rule, and for that reason I agree with the conclusion of the High Court judge on this issue.

42.         It should be recalled that the principal authority on this point remains the decision of Geoghegan J., speaking for the Supreme Court in the case of Smyth v. Tunney [2004] 1 IR 512 in which case Geoghegan J. held that, while it is necessary for a party advancing an application under O. 42, r. 24 to advance reasons for the delay in execution of the judgment concerned, there was no requirement to give an exceptional or very special reason.  He said that: "Some reason for delay had to be shown but no more."  While the appellant has sought to rely on my judgment in the case of Ulster Bank Ireland Limited & Anor v. Quirke, in that case no reasons at all had been offered by the applicant to explain why no steps had been taken for a period of seven years and nine months after the grant of judgment in that case.  The contrast with the facts of this case is therefore quite stark, in which reasons have been provided which, as I have said, account for approximately four years of the six years allowed by O. 42, r. 24, for execution of the judgment.  For these reasons, I would therefore dismiss this ground of appeal also. 

"Refusal" of Adjournment  

43.         The appellant's argument that the High Court judge erred in refusing to grant an adjournment is made in the somewhat unusual circumstances that no clear application was actually made by the appellant to adjourn the motion.  However, the appellant did, at the outset of his submissions, inform the judge that he did not have sufficient time to deal "in any conclusive way with the application", and that what he had done was to endeavour to address the relevant issues briefly.  The appellant also said to the judge, at the beginning of his submission that he had only been served on January 11th with over 300 pages and that he would "need time to go through that" to which the judge replied that if the appellant made his submission, he, the judge, would then make his ruling.  At the very end of his submissions the appellant said to the judge: "Judge, I'd just like to make a notice of motion on adjournment.  And that concludes my submission. Thank you."

44.          In his reply, counsel for the respondent clearly treated this last statement as an application for an adjournment, because he submitted to the court that the appellant had not presented any basis for an adjournment other than to say that he had not had time to deal with the application.  However, counsel for the respondent submitted that the appellant clearly had had sufficient time, having filed a 44 paragraph affidavit response to the motion.  The judge made no express ruling on the issue, and proceeded to give judgment, ex tempore, upon the conclusion of the reply of counsel for the respondent.

45.         The granting or refusal of an application for an adjournment is, quintessentially, an exercise of discretion by the court to which the application is made.  An appellate court should be slow to interfere with the exercise of that discretion, but can and should do so where it was objectively unfair to proceed and the opposing party could not have been prejudiced by an adjournment.  The court should follow whichever course best serves the interests of justice in the circumstances of the particular case, having appropriate regard to the need to dispatch court business promptly and efficiently.  These issues were addressed by Humphreys J., sitting in this Court, in Teresa Minogue As Personal Representative Of Denis Minogue (Deceased) v. Clare County Council [2021] IECA 98, a case referred to by both parties to this appeal in their submissions. 

46.         However, Minogue it is of limited assistance on the facts of this appeal.  Those facts are that the appellant diligently responded to the application by way of a comprehensive affidavit.  His objections were brought to the attention of the Court by counsel for the respondent, who addressed each objection in turn, and then those same objections were again presented to the Court by the appellant himself.  While the appellant submitted that he would have replied in greater detail had he had more time, he gave no indication of what else he would like to have said by way of objection, and in neither his written submissions on this appeal nor in the submissions of his counsel to this Court was it argued or submitted that he would have made further arguments or more detailed arguments had he been afforded an adjournment.  In these circumstances, it is difficult to see how it can be said that the interests of justice would have been better served by the adjournment of the motion.  In so far as it was argued that the motion might have been adjourned so as to enable the appellant to seek leave of the Court to cross-examine Mr. Hopkins, I have already addressed that issue above.  It follows therefore that this ground of appeal must also be dismissed. 

47.         Since the appellant has been unsuccessful in all of his grounds of appeal, the appeal must be dismissed.  As regards the cost of this appeal, my preliminary view is that, since the appellant has been entirely unsuccessful in this appeal, the respondent is entitled to an order for its costs pursuant to s. 169 of the Legal Services Regulation Act, 2015, and O. 99 of the Rules of the Superior Courts.  If the appellant wishes to contend for a different order, then he may do so by written submissions not to exceed 1,500 words within two weeks from the date of delivery of this judgment, and in such event the respondent shall have a further two weeks within which to submit replying submissions, which shall likewise be limited to 1,500 words.

48.         As this judgment is being delivered electronically, Woulfe and MacGrath JJ. have authorised me to indicate their agreement with it.


Result:     Appeal dismissed.

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