High Court refused leave to issue execution for costs due to excessive delay by defendants beyond six years.

THE HIGH COURT

Record No. 1995/8836P

[2025] IEHC 264

BETWEEN

JOHN ROONEY

PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE AND FOOD, THE MINISTER FOR

FINANCE, IRELAND, AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Ms. Justice Stack delivered this 7th day of May 2025.

Introduction

1. As the record number indicates, this is the latest application in long-running litigation, these proceedings having been instituted on 8 November, 1995. These and other proceedings brought by the plaintiff (referred to further below) related to the lawfulness of the compensation payable to farmers on foot of the Bovine TB Eradication Scheme and which affected Mr. Rooney who was at the time a full-time dairy farmer.

2. Insofar as these proceedings were concerned, the substantive issues were the subject of a trial which was heard by this Court (Laffoy J.) over ten days in May and June, 2004, and in which judgment was delivered on 13 July, 2004: this judgment is available under neutral citation [2004] IEHC 305. It is evident on any reading of that judgment that the learned judge gave careful and appropriate consideration to the issues which she had to determine, and it is not necessary, or indeed appropriate, for me to comment further on that judgment.

3. This application relates to the ability of the defendants to recover costs on foot of an Order made in their favour in July, 2004, and not to the substantive issues litigated in the proceedings. Accordingly, it is not necessary to discuss those legal issues in this judgment.

4. On 27 July, 2004, Laffoy J. made her final Order in these proceedings. I will refer to that Order as “the 2004 Order”, as the substance of it was to dismiss these proceedings and to order the plaintiff to pay the defendants their costs of the action when taxed and ascertained. They have since been taxed and ascertained in the amount of €175,659.58.

5. This is an application for leave to issue execution for those costs. The relevant provision of the Rules of the Superior Courts, 1986, as amended, is O. 42, rr. 23 and 24, which, in material part, provide as follows:- “23. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment, or the date of the order.

24. In the following cases, viz.:

(a) where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;

(b) …

(c) … The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried: and in either case the Court may impose such terms as to costs or otherwise as shall be just.”

6. For reasons which will be explored more fully below, the defendants did not execute for the costs within the six-year period. They now bring this application for:- “An Order pursuant to Order 42, rule 24 of the Rules of the Superior Courts granting leave to the Defendants to issue execution against the Plaintiff in respect of an Order of the High Court dated 27th July 2004 for costs taxed on 22nd February 2012 in the amount of €175,659.58.”

7. Regrettably, given the long drawn-out nature of the substantive proceedings, the motion seeking leave to issue execution itself has become embroiled in various delays. It will be necessary to consider those further for the purposes of determining the application.

Procedural history of this application

8. The motion issued on 16 July, 2015, returnable for 12 October, 2015. The grounding affidavit of Ms. McErlean, solicitor, sworn 11 June, 2015, explains what happened as regards taxing, ascertaining and enforcing the 2004 Order from the time it was made. She explains that it was listed for taxation on the 10 May, 2006, a hearing which the plaintiff attended in person. Taxation appears not to have progressed or at least concluded at that point, and the matter was listed for mention on 26 July, 2006, at which point it was listed again for taxation on 13 November, 2006.

9. Just one week before that, on 6 November, 2006, the plaintiff served the defendants with a motion issued before the Supreme Court seeking a stay on the 2004 Order pending an appeal to the Supreme Court against the substantive decision of Laffoy J. dismissing the within proceedings. On 10 November, 2006, the Supreme Court ordered a stay on the order for costs pending determination of the substantive appeal. That was conditional on the plaintiff taking all steps necessary to have his appeal certified as ready to proceed within one week of the date of the making of that order.

10. Unfortunately, the plaintiff did not comply, and on 4 December, 2006, the defendants’ solicitors instructed their costs accountants to proceed to taxation. On 20 December, 2006, the matter was set down to be taxed on 15 February, 2007.

11. However, in the interim, the plaintiff issued a further motion for the Supreme Court and this was adjourned to 12 January, 2007. On that date, the Supreme Court afforded the plaintiff another week to lodge his certificate of readiness. This time he complied and, as a result, was granted a stay on the 2004 Order. As a result, on 31 January, 2007, the taxation was adjourned generally pending the outcome of the plaintiff’s appeal to the Supreme Court.

12. On 18 November, 2010, the Supreme Court dismissed the plaintiff’s appeal against the substantive decision of Laffoy J., and affirmed the 2004 Order. The Supreme Court also awarded the costs of the Supreme Court appeal to the defendants as against the plaintiff. The costs of the Supreme Court appeal are not the subject of this application, which relates only to the costs of the plaintiff’s unsuccessful ten-day action in the High Court.

13. At this point, having had to await the outcome of the Supreme Court appeal, the defendants’ solicitors were proactive in pursuing the costs to which the defendants were entitled pursuant to the 2004 Order. They instructed costs accountants, and a Bill of Costs was drawn up and approved in July, 2007. Ultimately, the High Court costs were taxed on 30 November, 2011, and a Certificate of Taxation was issued on 22 February, 2012, in the sum of €175,659.58, already referred to above. As a result, that was the liquidated sum to which the defendants became entitled of the Order of Laffoy J. of 27 July, 2004, and for which they now seek leave to issue execution.

14. The defendants apparently have a practice of instructing external solicitors in debt collection matters of this nature, and in June, 2012, they instructed Croskerrys, an external firm of solicitors, to take steps to recover the sum due in respect of costs. A notice of change of solicitors followed on 9 July, 2012.

15. Croskerrys sent papers to the High Court to take up the Order fieri facias in July, 2012, and this was received in October, 2012. It was then sent the same month to the sheriff for execution.

16. Unfortunately, it appears that the sheriff did not take steps to execute despite reminders sent on 26 April, 2013 and 26 September, 2013. On 27 November, 2013, Croskerrys wrote to the sheriff asking for the order of fieri facias back as it had by then expired, and it was returned to them on 2 December, 2013.

17. It should be noted that, in the interim, the plaintiff issued proceedings bearing High Court record number 2012/12844P (“the 2012 Proceedings”), which apparently sought an injunction restraining the defendants from acting on foot of the Order of Laffoy J. That injunction appears initially to have been interlocutory in nature and was returnable before this Court (Feeney J.) in January, 2013. Feeney J. adjourned it to the hearing of the substantive matter on 22 February, 2013, and on 4 July, 2013, he dismissed the 2012 Proceedings. It appears that those proceedings were dealt with by way of the defendants’ motion to dismiss as being frivolous and vexatious and/or an abuse of process, but in any event those proceedings were fully disposed of by this Court by 4 July, 2013.

18. The plaintiff has filed three affidavits in the within application which, unfortunately, do not deal with the issues for determination before me, but rather seek to relitigate the issues determined by Laffoy J., and by other Superior Court judges in these and other proceedings, including ones bearing High Court record number 1120Sp/1987 (“the 1987 Proceedings”). I do not think that it is necessary to refer to the procedural history of either these or the 1987 Proceedings, much of which is in any event set out in an appendix to the judgment of the Supreme Court (per O’Donnell J., as he then was) delivered on 28 January, 2016, in the 1987 Proceedings: see Rooney v. Minister for Agriculture [2016] IESC 1.

19. However, it is worth noting that the 1987 proceedings were, by Order of the Supreme Court made 12 October, 1990, tried by way of a Special Case pursuant to O. 34 of the Rules. That Special Case was determined by this Court (Lavan J.) on 16 May, 1991, and by the Supreme Court on appeal on 19 December, 1991. The plaintiff was unsuccessful before Lavan

J. and was also unsuccessful in his appeal to the Supreme Court. The judgment of the Supreme Court is reported at [1991] 2 I.R. 539. There have been various appeals to the Supreme Court in the 1987 Proceedings, but as no application in the 1987 Proceedings is made at this point, it is not necessary for me to those proceedings further.

20. The decision of Feeney J. in the 2012 Proceedings was subject of a so-called “leapfrog” application to the Supreme Court (that is, for an appeal directly to the Supreme Court from this Court) made on 24 April, 2015. The Supreme Court refused leave to appeal: [2015] IESCDET

33. Unsurprisingly, one of the grounds upon which leave to appeal was refused was the plaintiff’s delay in seeking to appeal a High Court order which had been perfected on 5 July, 2013. The Rules provide that any appeal to the Supreme Court should be made within 28 days of perfection (O. 86B, r. 16 (1), of the Rules of the Superior Courts) and therefore should have been made by late August, 2013. However, the plaintiff did not lodge his application until 24 April, 2015 — almost two years late.

21. It should be noted also that the plaintiff also issued proceedings bearing record no. 2015/6293P (“the 2015 Proceedings”) on 31 July, 2015, a short time after this motion was issued. The plaintiff has exhibited the Statement of Claim which he has delivered in those proceedings, and it is notable that it seeks to relitigate issues previously determined in the 1987 Proceedings and to complain of the various judicial determinations made in the 1987 Proceedings by various High Court and Supreme Court judges at various times.

22. Those complaints are not material to what I have to decide, but the fact that the 2015 Proceedings have been issued, and their close relationship in time to the issue of this motion is a matter which I believe is, along with the very late application to appeal the Order of Feeney

J. in the 2012 Proceedings, relevant to the issues before me on this motion, Procedural history of this application

23. As already alluded to above, this application itself has had a somewhat troubled procedural history. It was first listed on 12 October, 2015, at which stage it was agreed to adjourn it to 16 November, 2015, to allow the plaintiff to consider the motion and file a replying affidavit. He did that by serving his replying affidavit on the morning of the adjourned date, necessitating another adjournment to 14 December, 2015. On that date, an appeal was pending before the Supreme Court in the 1987 Proceedings. As will be seen from the appendix to O’Donnell J.’s judgment, those appeals were heard on 9 December, 2015 with judgment being delivered on 28 January, 2016. In the interim, this motion was listed on 25 January, 2016, and adjourned to 22 February, 2016, pending delivery of the Supreme Court judgment.

24. It should be noted that, at all times, this application travelled with a similar motion in 1987 Proceedings. As a result, the plaintiff’s appeal to the Supreme Court in 1987 Proceedings delayed the progress of both motions, though I understand that ultimately it has been decided not to proceed – at least for now – with the application for leave to issue execution for the costs awarded to the defendants in the 1987 Proceedings.

25. Ms. Morris, solicitor, says in her affidavit of 3 May, 2023, that this application adjourned from time to time to allow for affidavits and also because the plaintiff continued to appeal in the 1987 Proceedings. Ultimately, on its third listing in the Chancery List to fix dates, this Court (Gilligan J.) adjourned this application generally with liberty to re-enter. The appeals in the 1987 Proceedings were determined by the Court of Appeal on 28 July, 2017.

26. In my view, that is significant for the issues I have to decide. By this time, the plaintiff’s attempt to appeal the Order of Feeney J. in the 2012 Proceedings had failed. Furthermore, the issue by him of further proceedings in 2015 does not appear to have affected the progress of the application for leave to issue execution on foot of the 2004 Order. As a result, it seems that, form the conclusion of the appeal in the 1987 Proceedings on 28 July, 2017, none of the delay which actually occurred can be laid at the door of the plaintiff.

27. In October, 2017, counsel was instructed to draft a motion to re-enter this application. Unfortunately, the counsel instructed did not return draft papers. It appears that contact was made in April, 2018, but this failed to produce any draft, and the original counsel instructed eventually returned papers in late November, 2018.

28. Given that there had already been some delay, it would have been preferable if the defendants’ solicitors had sought the return of papers at an earlier time. In any event, counsel now acting in the matter was instructed at the end of January, 2019, and this led to various consultations and advices as a result of which it was ultimately decided to proceed only with this motion and not the similar motion in the 1987 Proceedings. It seems that various issues, including the possible application of the Statute of Limitations, were considered.

29. A motion to re-enter this application and the related grounding affidavit were drafted in the Michaelmas Term 2019, and Croskerrys then entered into correspondence with the plaintiff about a potential withdrawal of the motion for leave to issue execution for costs awarded to the defendants in the 1987 Proceedings. This correspondence continued until February, 2020, but, ultimately, agreement was not reached. The motion for leave to issue execution in the 1987 Proceedings has been adjourned generally with liberty to re-enter and it has been decided to progress this application on its own. (I am not sure whether it has been decided to abandon the application in the 1987 Proceedings, but that is not relevant to this application and any decision not to progress it at this time will be a matter for the judge dealing with that application, in the event that it is pursued in the future.)

30. The defendants’ solicitor served a Notice of Intention to Proceed in respect of this application on 13 March, 2020. It will be evident from that date that the matter did not proceed expeditiously after that as the service of that Notice coincided more or less exactly with the beginning of the various lockdowns introduced to deal with the COVID-19 pandemic, which of course caused significant disruption to court sittings.

31. Ultimately a motion to re-enter was issued in September, 2020, and was allocated a return date of 11 January, 2021. However, it was adjourned generally on that date, and it appears that part of the reason for this is the plaintiff, as a litigant in person, was not – in accordance with the general practice of the courts at that time – obliged to participate in remote hearing. (Litigants in person were not required to participate in remote hearings as many such litigants did not have the technological hardware, software or knowhow to participate in remote hearings).

32. Thereafter, it appears that, on the return to normal sittings, there was some confusion as to whether the motion to re-enter should itself be re-entered or whether a fresh motion to reenter should be brought. It was eventually decided – in my view correctly – to issue a fresh motion to re-enter. That issued on 23 May, 2023, returnable to the 26 June, 2023, at which point it adjourned to permit the plaintiff time to reply, though he appears not to have taken up that opportunity. In the list to fix dates on 16 October, 2023, the fresh motion to re-enter got a hearing date in January, 2024 but regrettably was never called on and was struck out. It was reinstated by consent and listed on 25 June, 2024, and Ms. Morris says in her affidavit – and the plaintiff has not disputed this – that throughout this period the plaintiff took steps from time to time to seek a later rather than an earlier date for the hearing of the motion. It does not seem, however, that he succeeded in any of those efforts.

33. The application for leave to issue execution came before me on 25 June, 2024. On the morning of the hearing, the plaintiff applied for an adjournment. One of the reasons for which the adjournment was sought was that, by email sent just before 9 a.m. on 24 June, 2024, the plaintiff had emailed Ms. Morris seeking copies of what appears to be voluminous documentation, all of which he had already. The documents sought were:

1. All filings made by Croskerrys Solicitors in the Central Office in respect of the 1995 Proceedings;

2. All correspondence previously sent to the plaintiff by Crosskerrys solicitors in relation to the 1995 Proceedings;

3. All filings made by Crosskerrys in respect of the 1987 Proceedings;

4. Copies of all correspondence sent to the plaintiff by Crosskerrys in respect of the 1987 Proceedings. Clearly, the plaintiff would already have had copies of all of that correspondence previously sent to him. Similarly, the “filings” referred to would primarily be notice of motions and affidavits which would have been served from time to time and therefore the plaintiff would already have them.

34. In the course of the application to adjourn, the plaintiff specially asserted that the first motion to re-enter issued in 2020 and returnable for January, 2021, had not been served on him. However, I was provided with an affidavit of service which showed that that motion had been served on the plaintiff by registered post at an address at which he was resident at the time and indeed at which he was still resident in June, 2024, and that post had not been returned undelivered.

35. The other reason why an adjournment was sought was that the plaintiff said he required the DAR of various hearings before the Supreme Court in 2009 and 2010 in connection with his appeal. I refused the adjournment insofar as it was based on this reason also and the plaintiff indicated that he would appeal my refusal of an adjournment so that the merits of my reasons for refusing the adjournment are now a matter for the appellate courts. I note from a later affidavit that the plaintiff appears to be dissatisfied with transcript of the DAR of the Supreme Court hearings which he received in August, 2024, and he may be questioning their authenticity.

36. However, I do not have to consider that matter further as the plaintiff’s continuing complaints about the hearings before the Supreme Court, which long ago resulted in a final

decision, are not material to what I have to decide. What is relevant to the application before me is that the Supreme Court finally determined the appeal against the 2004 Order by affirming the Order in full. (I should point out that the copy order in the papers furnished to me is scanned or copied so as to cut off the material part of the Supreme Court order, but I understand that it is not in dispute that the Supreme Court affirmed the 2004 Order, in all respects, including in respect of the costs which are the subject of this application.)

37. The plaintiff indicated that he would appeal my refusal to adjourn this application, and it is not necessary to say any more about the adjournment application save that it is consistent with the defendants’ solicitor’s averment that the plaintiff himself did not seek to expedite the hearing of the motion for leave to issue execution for the costs awarded under the 2004 Order. However, the position remains that the plaintiff’s efforts to put the matter back further did not succeed.

38. At the hearing of the application for leave to issue execution on 25 June, 2024, there was a dispute before me about the second booklet prepared for that hearing. That booklet contained the papers relating to the second application to re-enter which issued returnable for

23 June, 2023, and which was dealt with on consent. There is no doubt, therefore, that the plaintiff had previously seen and considered the papers in the second booklet.

39. However, there is a further significance to the fact that the second booklet (or its index to indicate its contents) was not served on the plaintiff prior to the hearing of the application for leave to issue execution which is that, while the plaintiff would have previously been served with and considered all of the documentation in the second booklet for the purpose of the second application to re-enter, he would not necessarily have been on notice that the defendants intended to rely on those documents – and in particular the affidavit evidence filed for the purposes of the second application to re-enter - for the purposes of the application for leave to issue execution. If reliance was to be placed on those documents for a particular application, then it should have been indicated in advance that that would occur and the booklet should have been filed. However, this issue ultimately became irrelevant due to the manner in which the application progressed.

40. One of the issues which arose in the hearing of the application was whether the defendants were required to explain the delay which had occurred between the issue of the motion for leave to issue execution, which occurred in 2015, and the matter coming on for hearing in June, 2024. Having heard both parties and having considered the matter I delivered an interim ex tempore ruling on 19 July, 2024.

41. It had been submitted to me by the defendants, in reliance of the Court of Appeal

decision in Ulster Bank v. Quirke [2022] IECA 283 that it was not necessary to explain the loss of time from the date of issue of the motion in 2015. Having considered the matter, I decided that Quirke was not authority for that view, but it did appear to be settled law that, under the Rules, that an application is regarded as having been “made” when the motion in question is issued: KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 I.R. 128. However, I expressly said that I could only come to a preliminary conclusion on that point, as that issue, and in particular the decision of the Supreme Court in KSK, had not been dealt with in the hearing and therefore the plaintiff was of course entitled to an opportunity to make submissions in relation to it.

42. As a result, I did not find it necessary to consider, for the purposes of that interim ruling, the contents of the second booklet and therefore the failure of the defendants to indicate in advance that it would or might be relied upon for the hearing on 25 June, 2024, became irrelevant.

43. On the basis of that interim ruling, I relisted the matter for 25 October, 2024, and heard further submissions from counsel for the defendants and from Mr. Rooney in person. In the course of this further hearing, the defendants relied on further evidence relating to the period from issue of the application for leave to issue execution onwards. There was no issue about the service of the relevant affidavits.

44. It has to be said that, on the relisting of the matter, Mr. Rooney did not really address the issues for which the matter had been relisted, which was whether I had to be satisfied that there was some explanation for the delay in progressing the motion for 2015. He instead preferred to attempt to relitigate issues relating to court hearings in the 1990s.

45. However, I received written submissions from the defendants in which they contended that it followed from KSK and the subsequent case of Reilly v. DPP [2016] 3 IR 229, the Supreme Court (per Dunne J.) where a motion was on notice the application was regarded as having been “made” when it had been not only issued but served. As a result, this application had been “made” when the motion was issued and served on the plaintiff in July, 2015. They contended that there was no requirement, having regard to the case law relating to O.42, to explain the delay from mid-2015 onwards, the plaintiff as a judgment debtor was not unprotected as, in respect of that later period, he had the benefit not only by O.122, r.11 but also of the inherent jurisdiction recognised in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

46. Although the plaintiff has not sought to invoke the Primor jurisdiction, the defendants nevertheless made written submissions on the application of the principles relevant to the Primor jurisdiction in which they submitted that the delay had not been inordinate, was explicable, and in any event there was no prejudice to the plaintiff save the relief which was actually sought, that is, that the order for costs would be enforced.

47. The plaintiff filed written submissions on the 22 October, 2024. I regret to say that, other than a general assertion of inordinate and inexcusable delay on the defendants’ part in prosecuting the motion issue in 2015 for leave to issue execution for the costs, he neglected to take the opportunity to address the legal issues material to an application pursuant to O.42 but again sought that to relitigate matters which have been long ago decided.

Decision

48. As part of my ex tempore interim ruling, I noted that the parties were agreed that the summary of the jurisdiction as set out by this Court (Simons J.) in Start Mortgages DAC v. Hendrick [2023] IEHC 11 represented a correct statement of the law in this area. Simons J. stated (at para. 4): “The grant of leave to issue execution under Order 42, rule 24 is discretionary. The criteria governing the exercise of this discretion have been set out in Smyth v. Tunney [2004] IESC 24, [2004] 1 I.R. 512. There, the Supreme Court held that it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute following the lapse of six years from the date of the judgment or order, provided that there is some explanation at least for the lapse of time. The Supreme Court went on to state that, even if a good reason is given, the court must consider any counterbalancing allegations of prejudice.”

49. The discretionary nature of the jurisdiction was reaffirmed in KBC Bank plc v. Beades [2021] IECA 41, at para. 67, and in Ulster Bank Ireland Ltd. v. Quirke [2022] IECA 283, at paras 59 and 60, it was confirmed that the threshold was “a low one”. It was also decided that an explanation had to be given also for the period of six years from the date of the relevant judgment or order.

50. I have already decided in my interim ruling that the defendants are in a position to explain all of the time which elapsed prior to the issue of this motion on 16 July, 2015. In short, that lapse of time can be explained by the cumulative effects of the time required to tax and ascertain the costs, the action of the plaintiff in obtaining a stay on the 2004 Order for a period of three and a half years while he pursued an unsuccessful Supreme Court appeal, the fact that approximately six months were taken up with the plaintiff’s 2012 Proceedings which appear to have been a collateral attack on the outcome of that Supreme Court appeal, the attempts of the defendants to obtain execution through the sheriff which were unsuccessful through no fault of their own, and the need to prepare the motion for leave to issue execution.

51. The matter which was left over was whether the lapse of time since issue of the motion should be explained.

52. The first issue which I now have to consider whether I was correct in the preliminary view which I expressed in my interim ruling that KSK Enterprises applied and has the effect that I am only required to consider whether there is an explanation for the delay up to the date of issue and service of the motion.

53. Before turning to that issue, I should first say that I also expressed the interim view that Quirke was not authority for that proposition as it does not appear to have been specifically argued in Quirke and, in any event, there seems to have been virtually no delay in that case between issue of the motion and the hearing of the application. The question, therefore, did not arise and was not determined. Having reconsidered the matter in full, I think my preliminary view on that point was correct and that the point was simply not determined in Quirke. The reference in Quirke to when the application is made is, in my view, no more than a passing comment in the context of the facts of that application where there was no meaningful delay between the issue of the motion and its listing in court.

54. Furthermore, Quirke is authority for the view that, where the six year period is exceeded, an explanation must be given for the entire period, including the initial six year period. It would be somewhat anomalous if, having had to explain the initial six year period to which a successful party to litigation is entitled as a matter of course under Order 42, there was no need to explain a far longer period for which an extension of time is required and which, the judgment of the Supreme Court in Smyth v. Tunney is clear, is a matter within the court’s discretion.

55. On the facts of this particular case, the issue arises in somewhat stark form. Notwithstanding that 11 years had already passed from the date of making of the Order to the issue of the motion in July, 2015, there was a further period of nine years before the matter came on for hearing. That is a period well in excess of the initial six year period.

56. Having reconsidered KSK Enterprises for the purposes of the final decision on this matter, it seems to me that that authority is not applicable here for two reasons.

57. First, in KSK Enterprises, the Supreme Court was considering the time limits in s. 82 (3B) (a) of the Local Government (Planning and Development) Act, 1963, as inserted by s. 19

(3) of the Local Government (Planning and Development) Act, 1992. That section explicitly provided: “[A]n application for leave to apply for judicial review under [Order 84 of the Rules of the Superior Courts, 1986] in respect of a decision referred to in subsection (3A) of this section shall-

(i) be made within the period of two months commencing on the date on which the

decision is given.” [Emphasis added.]

The provision under consideration in that case, therefore, expressly provided that an application be “made” by a particular date. The question before the Supreme Court was when the application should be regarded as having been made.

58. There is no equivalent provision in Order 42, rule 24. To recap, that simply provides that the Court “may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect.” There is nothing in the Rule itself which limits the Court’s discretion to the period prior to the issue of the motion and references in the authorities to the “making” of the order are, as already stated, merely references in passing to the relevant procedural history of the application to be determined and do not constitute any form of determination that that date is some kind of cut off point beyond which the principles in Smyth v. Tunney no longer apply.

59. Secondly, the purpose of the six year time limit in Order 42, rule 23 is quite different from the policy pursued by the statutory provision at issue in KSK Enterprises. In the latter, short time limits were imposed, inter alia, in the public interest so that there would be no uncertainty about the lawfulness of planning decisions where they had not been challenged within strict time limits.

60. By contrast, Order 42, rule 24 affords an initial time period that is extremely generous by comparison with those at issue in KSK Enterprises and, more importantly, pursues different objectives. Significantly for this case, even though the wording of Order 42, rule 24 does not on its face impose any restriction on a court when asked to exercise its discretion to extend the time period, the Supreme Court in Smyth v. Tunney have made it clear that the discretion is not entirely untrammelled, and that some reason for the extension of time must be given. There is no indication in the judgment of Geoghegan J. that the need to meet the low threshold somehow evaporates on the expiry of yet more time after the issue of a motion.

61. While I therefore remain of the view expressed in my preliminary ruling that Quirke is not authority for the proposition that there need be no explanation for the delay since issue of the motion seeking leave to issue execution, having considered KSK Enterprises further for the purposes of coming to a final view, I have now concluded that it does not assist the defendants and that explanation must be furnished for the entire period up to the hearing date of the application. That explanation must be as one which meets the relatively low threshold set in Smyth v. Tunney.

62. In light of that conclusion that the defendant are wrong in their contention that they do not need to explain the delay from issue of the motion in mid-2015, and that I must have a reason of the kind required by Smyth v. Tunney, I do not need to consider the Primor principles.

63. In any event, since delivery of my interim ruling, the defendants have taken the opportunity to offer an explanation for the period from mid-2015 onwards, when this application was issued, and it is now necessary to consider that explanation.

Lapse of time since issue of the motion seeking leave to execute

64. The plaintiff undoubtedly caused the delay up to the dismissal by the Court of Appeal of his appeal on 28 July, 2017. That appeal was brought in the 1987 Proceedings but, up to February, 2020, a motion seeking leave to issue execution in the 1987 Proceedings was travelling along with this application. It was only sensible that the two applications should travel together and the action of the plaintiff in pursuing an appeal in the 1987 Proceedings therefore created a good practical reason why this application should not succeed.

65. However, from disposal of the plaintiff’s most recent appeal in the 1987 Proceedings on 28 July, 2017, there has been a very considerable further delay. While the plaintiff has not sought to move the matter on, he is respondent to the application and he has not succeeded in any attempts to delay it, which included seeking a later hearing date for the motion and then seeking to adjourn it when it came on for hearing. As a result, it must be taken that responsibility for the entire period from 2017 to 2024 – with the exception of the period from March, 2020, to the end of 2021, when the restrictions on court sittings caused by the COVID-

19 pandemic prevented the hearing of the application – lies with the defendants.

66. I am told that counsel were not instructed to draft papers until late 2017. Unfortunately, where papers rested with counsel for approximately a year without any drafts being received. Certainly, the latter half of that period (at the very least) is one in which I think the better view would be that the defendants’ solicitors should have asked for the papers back given that delay was likely to be an issue in the application overall.

67. From January 2019, when new counsel was instructed, the application appears to have been under active management, but the fact remains that no steps was actually taken to issue the motion until a Notice of Intention to Proceed was served on 13 March, 2020. The defendants pointed out that it was never at any time suggested to the plaintiff that the 2004 Order would not be enforced or that the 2015 motion would be abandoned. I also accept that the legal issues

– apparently there was at the time a lack of clarity as to the applicability of the Statute of Limitations – were complex.

68. Nevertheless, given that, by the time those issues were being considered, 15 years had passed since the making of the Order, nine years had passed since it had been affirmed by the Supreme Court, five years had passed since the costs were ascertained, and there had been no bar since 28 July, 2017, to the progress of the application, it does seem to me that too long a period passed before the service of a Notice of Intention to Proceed on 13 March, 2020. There was ample time within that period for the issue and service of a motion to re-enter and the entire matter really should have been dealt with prior to the COVID-19 pandemic.

69. In addition to that, while the defendants of course can bear no responsibility for the restrictions on court sittings necessitated by the pandemic - particularly as the plaintiff was a litigant in person which made it more difficult to deal with the matter by way of remote hearing

- the matter was not dealt with expeditiously when the pandemic ended.

70. The second motion to re-enter was not filed in the Central Office until 23 May, 2023. It is not clear why this was not done early in 2022, when government restrictions ended. The motion was given a return date of 26 June, 2023, and was apparently dealt with by consent (though the plaintiff reserved his right to contest this 2015 motion for leave to issue execution). This motion was apparently first listed for hearing in January, 2024, but was not called on - which was the responsibility of the defendants - and was struck out and lost its hearing date. It was subsequently reinstated and the hearing date of 24 June, 2024 obtained. However, it must be borne in mind that, given the prior delays from late 2017 to the beginning of the pandemic and from early 2022 to mid-2023, the addition of a further five month delay was very regrettable.

71. The result of all of the procedural missteps and delays on the defendants’ part in bringing this 2015 application for leave to execute forward for hearing is that a six year period elapsed from the disposal by the Court of Appeal of the plaintiff’s appeal in July, 2017, to the issue of the motion to re-enter in May, 2023. A further year passed before the application was actually heard on 24 June, 2024. A period approaching two years is accounted for by the pandemic but that leaves a period of approximately four years where the defendant quite simply did not take any formal step to issue the motion and then a further year passed before hearing, about half of this being due to the default of the defendants in retaining the hearing date which they had in fact been afforded by the Court.

72. While I accept that the threshold for an extension of time under Order 42 is not particularly high, there must be some reason given. I also accept, given the procedural history of these proceedings and the related 1987 Proceedings that the preparation of papers and the

decision-making involved in progressing the matter was not straightforward. However, a cumulative period of four years just to issue the motion to re-enter is quite simply excessive, particularly when the initial period permitted under the Rules is six years to begin with. Bearing that in mind, it is my view that the defendants have not met the low threshold set forward in Smyth v. Tunney.

73. I will therefore refuse the relief sought in the notice of motion which issued on 16 July, 2015, that is, I will refuse leave to the defendants pursuant to O.42, r.24 of the Rules of the Superior Courts, to issue execution against the plaintiff in respect of the High Court order dated

27 July, 2004, for costs which have been ascertained as being an amount of €175,659.58.

74. I will list the matter in early course to deal with final orders and costs.