Court of Appeal: 12-year limitation period does not apply to applications for leave to issue execution of possession orders

About this case:

• Citation:
  [2026] IECA 134
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Costello and Mr Justice McDonald

Delivering judgment for the Court of Appeal, Ms Justice Caroline Costello and Mr Justice Denis McDonald opined: “The carving out of the application from the definition of an action to recover land is based upon the argument that an application in the possession proceedings for leave to issue execution is a proceeding separate to and not a part of the action for the recovery of land…we do not accept that this is the correct, when the scheme of the Act as a whole is considered and the manner in which different causes of action are treated under the Act.”

Background

On 5 March 2012, Start Mortgages obtained an order for possession of the defendants’ property, subject to a six-month stay on execution which expired on 6 September 2012.

On 23 February 2023, Start sought leave to issue execution of the possession order pursuant to Order 42, rule 24 of the Rules of the Superior Courts (RSC). Start was granted leave by the High Court on 13 May 2024.

In circumstances where a transfer of the underlying loan and mortgage to Mars Capital Finance Ireland DAC had taken place, Mars issued a motion on 17 October 2024 seeking to be substituted as plaintiff into the proceedings and for leave to issue execution of the possession order.

The first defendant opposed the applications, contending inter alia that s.11(6)(a) of the Statute of Limitations 1957 prescribed a 12-year limitation period for “an action upon a judgment” and accordingly, Mars’ application for leave to issue execution was statute-barred.

The High Court rejected that contention, finding that an application under Order 42 rule 24 RSC was not an “action upon a judgment” for the purposes of s.11(6)(a) of the Statute of Limitations having regard to authorities including Ulster Investment Bank Ltd. V. Rockrohan Estates Ltd. [2015] 4 I.R. 37.

The first defendant appealed that finding to the Court of Appeal, with counsel submitting that on the basis of Evans v. O’ Donnell (1886) 18 LR Ir. 170, s.11(6)(a) should be construed as barring the execution of the possession order where more than 12 years had passed since the date that the order became enforceable.

The Court of Appeal

The Court of Appeal set out that the respondent’s application for leave to issue execution had been brought pursuant to Order 42 rule 24 RSC, which applies where more than six years have elapsed since the relevant order or judgment.

Turning to s.11(6)(a) of the Statute of Limitations, which provides that “An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable”, the court considered that the issue was whether the Oireachtas, in enacting the Statute of Limitations, intended that application under Order 42, rule 24 in respect of a possession order constituted an “action upon a judgment” within the ambit of s.11(6)(a).

The court observed that the word “judgment” was not defined in the Statute of Limitations nor was there any definition of that word in the schedule to the Interpretation Act 2005, finding that the only definition of any assistance was that of “action” defined by s.2(1) as “any proceeding (other than a criminal proceeding) in a Court established by law.”

Having set out the legal principles on statutory interpretation, the Court of Appeal proceeded to consider the state of the law at the time the Statute of Limitations was enacted.

Ms Justice Costello and Mr Justice McDonald explained that historically, there was no limitation period at common law for the enforcement of judgments but there was a presumption that a judgment was satisfied within a year and a day if execution had not been effected within that period.

The judges noted that if a judgment creditor had failed to execute within that period, it became necessary to apply to revive the judgment by writ of scire facias or to bring a fresh action upon the judgment.

The court outlined that s.40 of the Real Property Limitation Act 1833 then altered the law and introduced a limitation period of 20 years for actions, suits and other proceedings to recover money secured by a judgment, later amended to 12 years by the Real Property Limitation Act 1874.

The court recounted that s.20 of the Common Law Procedure Act 1853, which “curiously” introduced a 20-year limitation period for a number of types of action notwithstanding s.40 of the 1833 Act, did not use any language limiting the word judgment to money judgments and spoke exclusively of actions rather than using the more expansive language elsewhere in that Act or in the 1833 Act.

Having reviewed the nineteenth and early twentieth century authorities before the court, Ms Justice Costello and Mr Justice McDonald concluded that prior to the enactment of the 1957 Statute, an application for leave to execute a money judgment under Order 42 rule 24 and its antecedents was treated as a “proceeding” within the meaning of s.8 of the 1874 Act and was caught by the 12 year limitation period prescribed by that section.

The judges continued: “However, the authorities strongly establish that such an application was not an “action … upon any Judgment” within the meaning of s. 20 of the 1853 Act. That section along with s. 8 of the 1874 Act continued in force until the enactment of the 1957 Statute.”

The court also observed that s.8 of the 1874 Act did not apply to judgments other than money judgments, and so the order for possession of the kind made by the High Court in the case before it would not have fallen within its ambit where same does not require the payment of money.

The court then considered whether the Oireachtas by its enactment of the Statute of Limitations intended to significantly expand the operation of what had, up until then, been the position under the 1874 Act in respect of the enforcement of money judgments and to apply that position to the enforcement of all judgments.

Taking the view that it was “highly unlikely” that the Oireachtas could have intended to alter the law so radically without making such an intention “crystal clear”, the Court of Appeal pointed out that the Statute of Limitations was a consolidating Act and so there was a rebuttable presumption that no alteration to the law was intended unless the Oireachtas did so in clear and unambiguous terms.

Examining s.11 of the Statute of Limitations in its entirety, the court observed that s.11 is divided into nine subsections and into further subparagraphs dealing with different causes of action requiring the commencement of originating proceedings in court and that there none of them could be brought by way of application within existing proceedings.

The court also had regard to the fact that the Statute of Limitations distinguishes between an “action” and an “action to recover land”, noting the 12-year limitation period for actions for the recovery of land by a mortgagee.

Ms Justice Costello and Mr Justice McDonald considered that the question was whether the execution of a judgment obtained in such proceedings is, for the purposes of the Statute, still an action for the recovery of land or, whether it is a separate action for the purposes of the Statute whose limitation period is covered by s.11 and not by any of the specific provisions relating to inter alia the recovery of land.

Finding that the answer to that question hinged on the meaning of “proceeding” in the definition of “action” in s.2 of the Statute, the court opined that “proceeding” in this context is an originating application of any kind, other than a criminal proceeding entailing the issuing of any of the variety of proceedings permitted by law, “rather than an application in such proceedings”.

Pointing out that an application for leave to execute a possession order is brought in the proceedings in which the order was granted, the judges reasoned that it is not a “freestanding application which may be commenced or brought outside of the existing proceedings.”

Finding this approach to be consistent with that in Ulster Investment Bank Ltd. V. Rockrohan Estates Ltd, the Court of Appeal concluded that s.11(6)(a) could not be interpreted as applying to applications for leave to issue execution in possession proceedings and that the application was not statute-barred.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Mars Capital Finance Ireland DAC v McDaid & Anor [2026] IECA 134