High Court allows substitution of plaintiff and leave to issue execution on possession order despite transfer.

APPROVED [2025] IEHC 634

THE HIGH COURT

Record No.: 2008/1125 SP Between/ START MORTGAGES DESIGNATED ACTIVITY COMPANY Plaintiff -and-

AARON MCDAID AND MAJELLA MCDAID (OTHERWISE KNOWN AS MAJELLA MCCROARY)

Defendants

JUDGMENT of Mr Justice Rory Mulcahy delivered on 21 November 2025

Introduction

1. This judgment concerns an application for an order pursuant to Order 42, rule 24 of the Rules of the Superior Courts (the “Rules”), granting the applicant, Mars Capital Finance Ireland Designated Activity Company (“Mars”), leave to issue execution on foot of an order for possession made by the High Court on 5 March 2012, and an order to substitute Mars as plaintiff for Start Mortgages Designated Activity Company (“Start”) pursuant to Order 17, rule 4 of the Rules.

2. On 13 May 2024, I made an order granting Start leave to issue execution of the order for possession, subject to a six month stay on execution. This application is necessitated by the purported transfer of Start’s business to Mars and, in particular, the transfer of Start’s interest in the loans and mortgage giving rise to the order for possession. Mars claims to have acquired Start’s interest in the defendants’ loan, mortgage and charge on foot of a global deed of transfer between the two entities which granted, conveyed, assigned,

NO REDACTION REQUIRED transferred and assured unto Mars the legal interest in the defendants’ security, security documents and finance documents, together with those of other persons not relevant to these proceedings.

3. The defendants were notified of the transfer on 4 June 2024 by Start, a so-called “goodbye” letter. A “hello” letter was sent to the defendants by Mars on 18 June 2024, notifying them that the sale of the loan book and the transfer of interest had been completed.

4. By motion dated 17 October 2024, Mars sought the two reliefs the subject of this judgment.

Applicable law – substitution application

5. Although the first relief sought in Mars’ notice of motion relates to the application for leave to issue execution of the order for possession, it is appropriate to deal first with the substitution application.

6. Oder 17, rule 4 of the Rules states as follows:

Where by reason of death […] or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.

Discussion – substitution application

7. The defendants advance two bases for contending that the substitution application should be refused. First, they contend that by reason of the redactions in the documents relied on to prove the transfer, Mars has not established to the requisite standard that Start’s interest in the defendants’ loans and mortgage have been transferred to Mars. Second, they contend that the deeds relied on by Mars have been executed by attorneys and are therefore “not effective” given that there has been alleged non-compliance with the provisions of section 64 of the Land and Conveyancing Law Reform Act 2009 and/or section 21 of the Powers of Attorney Act 1996.

8. In relation to the first issue, whether Mars has proved the transfer to the necessary standard, the first question to resolve is what that standard is. Mars argues that it merely needs to establish a prima facie case that the transfer has taken place. The defendants contend that in an application to substitute for the purpose of enabling the substituted party to execute a judgment, the transfer of interest must be proved to the same standard as required as if this were an application for possession.

9. In Irish Bank Resolution Company v Comer [2014] IEHC 671, the High Court (Kelly J) identified what was required to be shown on an application to substitute a plaintiff during the course of proceedings:

“30. What I am asked to do is to consider a procedural application which, if it is granted, will have the effect of bringing to an end the entitlement of IBRC to further prosecute these proceedings. It will substitute for that entity, Launceston, who will take over the entitlement to prosecute the proceedings, subject to all of the imperfections that may have been present when the action was constituted as between IBRC and the defendants and subject also to proving at trial, that there has been a valid sale of the underlying assets, a valid assignment of the chose in action which is this action, and a valid notice given.

31. What I do have to satisfy myself about is whether there is prima facie evidence of that having occurred. In order to come within the relevant rule of court, there has to be evidence adduced which would justify the substitution of the existing plaintiff by Launceston.”

10. Thus, Comer illustrates the proofs necessary at a substantive hearing, and also, that on an application to substitute in advance of a full hearing, it is only necessary to establish a prima facie case that those proofs will be met.

11. Both parties’ submissions refer to the decision in IBRC v Halpin [2014] IECA 3. In that case, the Court of Appeal (Finlay Geoghegan J) refused substitution, but instead added the purported purchaser of the relevant loans as a co-plaintiff. Both parties refer, in particular, to the following passage:

24. The application by Kenmare for an order of substitution at appeal stage requires quite a different consideration to that given in the High Court by Kelly J. in IBRC v. Comer and by me in IBRC v. Morrissey. In each of those applications, the plaintiff had not yet obtained judgment against the defendant. The Comer proceedings were still at a relatively early stage. In Morrissey they were almost at the final stage of the hearing in the High Court, but importantly, there had been no determination as to the entitlement of IBRC as plaintiff to judgment against the defendant. It permitted the approach taken in Comer and followed in Morrissey of only requiring the applicant on the procedural application for substitution to adduce evidence in a prima facie fashion of its entitlement by reason of the purported assignments to pursue the existing claim on the underlying facilities alleged to have been transferred to it against the defendants.

It was made clear in each judgment that the effect of the application and order for substitution was to take IBRC out of the proceedings and permit the applicant as plaintiff to pursue the proceedings for judgment against the defendant, leaving over to the trial judge the determination of the questions as to whether the new plaintiff by reason inter alia of the alleged assignment of rights to the facilities could at the relevant future date establish its entitlement to judgment against the defendants. The procedural substitution application did not determine the issue of the validity of the assignment from IBRC to the assignee/applicant (or the entitlement to rely upon the Deed of Assignment as redacted before the Court). These matters were left over for the trial judge.

12. Mars argues that, insofar as Halpin suggested that a court should view substitution applications differently, depending on whether the application is made before or after judgment, that view has since been overruled by the Court of Appeal in Pepper Finance

(Ireland) DAC v O’Reilly [2025] IECA 140. It is true that the approach of adding a transferee as a co-plaintiff has been overruled, but the decision in O’Reilly is not authority for the proposition that the standard of proof for an application post-judgment, i.e. where there is no further opportunity to contest the evidence of the purported assignment, is a prima facie case. In those cases, a higher threshold applies. The reason for requiring a higher standard on such applications was clearly explained in Bank of Scotland plc v McDermott [2019] IECA 142, where the Court of Appeal (Peart J) distinguished the position in that case with that at issue in Comer:

36. There is, of course, the distinction in the present case that the substitution order is made after final judgment has been granted, and therefore that there is no opportunity at a subsequent trial where issues as to the validity of the assignment of the loans to Ennis might be ventilated. But the fact remains that the application to substitute a party is still one of a purely procedural nature.

37. Where, as in the present case a substitution application is made after judgment has been granted, and where therefore there is no opportunity at trial to raise any issues in relation to the proofs adduced in support of the application, it seems to me that the prima facie test referred to by Kelly J. in IBRC v. Comer is not the correct test. 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.

13. In the particular circumstances of this application, the combined effect of the two reliefs sought by Mars will finally determine, at least in this court, Mars’ entitlement to issue execution. Accordingly, Mars must prove that entitlement on the balance of probabilities.

14. Despite that higher standard applying, it is very clear that it has been met. All the proofs identified as being required in Comer have been exhibited and proved on affidavit. Mars has exhibited a Global Deed of Assignment, a Deed of Conveyance and Hello and Goodbye letters, all of which show that Start’s interest in the defendants’ mortgage and loan have been transferred to Mars, and that the defendants were so notified by both Start and Mars. The defendants do not contend otherwise. The only arguments they make to the contrary are that the deeds relied on have been redacted and so the full effect of those deeds cannot be known, and the deeds are not effective because of the manner in which they have been executed.

15. As regards redaction, the defendants refer to the fact that in Start Mortgages v Ramseyer [2024] IEHC 329, extensive and unexplained redactions in similar documents led the High Court (Simons J) to refuse to make an order for possession because he was not satisfied that the evidence of the transfer of interest in the debt to Start had been made out. He adjourned the case to plenary hearing:

23. It should be emphasised that this is not a case where minor redactions have been made on the grounds that same are necessary to protect the privacy of third parties whose debts are said to have been encompassed as part of a global transfer of assets.

Nor is it a case where it has been asserted, on a reasoned basis, that certain information has been redacted on the grounds of commercial sensitivity (cf. Farrell v. Everyday Finance DAC [2024] IECA 16). Rather, whole swathes of the operative part of the deeds have been blanked out, without any meaningful explanation or justification having been offered. The redactions are so extensive that this court cannot safely interpret the legal effect of the deeds with a view to determining whether or not they had the consequence of transferring to Start Mortgages the debt outstanding in respect of the loan originally advanced by the Governor and Company of the Bank of Scotland.

The limited material before the court does not establish, even on a prima facie basis, that the defendants' debt has been transferred to Start Mortgages.

16. This is not such a case. As referred to above, Start has transferred the entirety of its business to Mars. In those circumstances, much of the agreement between them has no relevance to the transfer of the defendants’ loans and mortgage. This was not explained in the affidavit exhibiting the Global Deed of Transfer and other documents. However, following a request from the court in separate proceedings where similar issues arose, also involving a transfer from Start to Mars, a supplemental affidavit was sworn in these proceedings, explaining the transfer of the business and explaining the reasons for the redactions in the documents exhibited. The defendants have not engaged with these explanations at all, still less identified any redaction which they contend might, if removed, disclose a basis for disputing that the defendants’ loans have been transferred to Mars, and that Mars is, accordingly, not entitled to be substituted as plaintiff in these proceedings. The redactions in the documents do not give rise to any real doubt that Start’s interests in the defendants’ loans and mortgage have been transferred to Mars and are not a reason, therefore, to refuse the substitution application.

17. The second issue can be disposed of straightforwardly for two reasons. The defendants argue that, as Mars hasn’t exhibited a power of attorney, and the deeds were not executed under seal, the agreements relied on are not effective as deeds in accordance with the terms of the 2009 and 1996 Acts.

18. This does not give rise to a basis for opposing the substitution application.

19. First, any issue as to the manner of executing the deeds could, potentially, give rise to an issue as between Start and Mars and their ability to enforce those contracts against each other. However, neither of those parties has raised any issue about the enforceability of the deeds. In particular, neither has demanded proof that the other has duly authorised their attorneys to execute the contracts. The defendants have not identified any basis upon which they may be entitled to do so for the purpose of resisting the substitution application.

20. Second, the objection ignores the provisions of section 41 of the Companies Act 2014, which states:

(1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.

(2) A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.

21. There is, accordingly, nothing on the face of the deeds which prevent them having full force and effect. In Pepper Finance Corporation (Ireland) DAC v Beades [2021] IECA 39, the court (Whelan J), in the context of a substitution application, observed (at [40]):

“That a deed or instrument is executed on its face should suffice to meet the standard of proof on the balance of probabilities for an order to be made pursuant to O. 17, r. 4 for the joinder of a party even after a final order has been made.”

22. She rejected the defendants’ attempts to impugn the deeds at issue in that application by reference to the fact that they had been signed by attorneys:

“52. Thus, the traditional approach in conveyancing which required a power to be executed under a company’s common seal to ensure that it was effective to empower the attorney to execute a deed does not any longer represent the law which has been materially modified having regard to the combined effect of s. 16(1) of the 1996 Act and s. 41(2) of the 2014 Act.

53. In my view, those statutory provisions are dispositive of the objections raised with regard to the execution of the powers of attorney by Beltany and Pepper respectively.

This court has no need to go behind the instruments which are apparently valid on their face and is entitled to have regard to the transaction intended to be given effect to, as evident from the tenor of the instrument in each case, in determining whether to grant or refuse the procedural application.”

23. I am, therefore, satisfied on the balance of probabilities that Mars has succeeded to Start’s interest in the defendants’ loans and mortgage, and should be substituted as plaintiff in the proceedings pursuant to Order 17, rule 4 of the Rules of the Superior Courts.

Applicable law – application for leave to execute

24. Order 42, rule 24 of the Rules states:

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) where a party is entitled to execution upon a judgment of assets in futuro;

(c) where a party is entitled to execution against any of the shareholders of a company upon a judgment recorded against such company, or against a public officer or other person representing such company;

the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. 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. Provided always that in case of default of payment of any sum of money at the time appointed for payment thereof by any judgment or order made in a matrimonial cause or matter, an order of fieri facias may be issued as of course upon an affidavit of service of the judgment or order and non-payment.

25. The leading case is Smyth v Tunney [2004] 1 IR 512, which addressed what an applicant had to establish when seeking leave to issue execution more than six years after judgment in accordance with Order 42, rule 24(a). The Supreme Court made clear that the exercise of the jurisdiction to grant leave was a discretionary one, that there is no requirement for unusual or exceptional reasons explaining the delay in execution, but that some reason must be provided, and that the court must consider any allegation of prejudice to the debtor caused by the delay.

26. In this case, there has, of course, been no delay since the last order granting leave to issue execution – this motion issued just five months after that order was made, in fact before that order even became effective, having regard to the stay granted on that order. Rather the application has been triggered by the transfer of interest. As I have found above that Start’s interest has been transferred to Mars, Mars clearly satisfies the necessary proofs for this application. However, the defendants argue that Mars’ entitlement to seek leave to execute is now statute barred.

Statute of Limitations 1957, as amended

27. Section 11(6)(a) of the Statute of Limitations Act 1957, as amended (“the Statute”)

provides as follows:

(6) (a) An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable.

28. There is no doubt that this application was brought more than twelve years after the order for possession became effective. The order was made on 5 March 20212 and stayed for a period of 6 months, i.e. to 5 September 2012. This motion issued more than twelve years later on 17 October 2024. The question, therefore, is whether an application for leave to issue execution is an “action” upon a judgment within the meaning of section 11(6)(a) of the Statute.

29. The defendants contend that this is a question which has not been finally resolved in this jurisdiction, and that this court should follow the reasoning of the House of Lords in Lowsley v Forbes (t/a L.E. Design Services) [1999] 1 AC 329, which concluded that, but for subsequent statutory developments in that jurisdiction, leave to issue execution would be regarded as an action within the meaning of the English limitation provisions.

30. Mars argues that the matter is the subject of binding precedent, and should be decided in accordance with the principles identified in the case law here.

Discussion – leave to issue execution and the Statute of Limitations

31. The question of whether the limitation period in section 11(6)(a) applies to an application for leave to issue execution was discussed, although not resolved, in Smyth v Tunney.

32. In that case, the defendants were seeking leave to execute a costs judgment made in their favour against the plaintiffs. They explained that they sought to execute at the time that they did for fear that the judgment might become statute barred. In considering the exercise of its discretion, the court considered the reasonableness of that apprehension, though not whether it was correct. As the Court (Geoghegan J) put it in his judgment:

“If the perception that the benefit of the judgment debts might be lost after the twelve year period elapsed was a reasonable one, it is entirely irrelevant whether it was correct in law.”

33. The judgment then considered the English case law on the issue.

34. As appears from the Supreme Court’s analysis, in National Westminster Bank v Powney [1991] Ch 339, the English Court of Appeal was required to decide between two of its own conflicting authorities. In Lougher v Donovan [1948] 2 All ER 11, the Court had concluded that leave to issue execution was an “action” within the meaning of the English Limitations Act 1939. In WT Lamb and Sons v Rider [1948] 2 KB 331, however, the court took a different view. In National Westminster Bank v Powney, the Court endorsed the view taken in WT Lamb. At page 552 of Geoghegan J’s judgment, he quotes the following passage from page 335 of the later judgment:

“It follows from the above brief survey that the right to sue on a judgment has always been regarded as a matter quite distinct from the right to issue execution under it and that the two conceptions have been the subject of different treatment. Execution is essentially a matter of procedure – machinery which the court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders.”

35. As Geoghegan J put it, “what complicates the matter still further” is that in a subsequent

decision, Lowsley v Forbes [1999] 1 AC 329, the House of Lords expressly disagreed with the reasoning in National Westminster Bank v Powney, which had endorsed WT Lamb, but held that in light of a more modern Limitation Act, which had clearly been drafted on the basis that National Westminster Bank v Powney was correct, it must be regarded as the law of England and Wales.

36. The Court concluded that it was reasonable for the defendant to have had an apprehension that its judgment might become statute barred.

37. The Irish courts have returned to the question of the application of the Statute to execution of judgments on a number of occasions since.

38. In Ulster Investment Bank Ltd v Rockrohan Estates Ltd [2015] 4 IR 37, [2015] IESC 17, the Supreme Court concluded that an application by the plaintiff in 2008 for an order for possession in furtherance of an order for sale which had become effective in 1990 was not an “action” to recover land within the meaning of the Statute. Charleton J expressly endorsed the following conclusion of the High Court (Irvine J, as she then was) as “clearly correct” (at p. 50 of the reported judgment):

“Her reasoning, as set out at p. 29, is clearly correct:-

“Given that so much of the submission of Rockrohan is based upon various provisions of the Act of 1957, it is worthwhile briefly reflecting upon the purpose of legislation of this nature. Limitation statutes are intended to prevent stale claims and to relieve certain classes of defendants of the uncertainty of late claims being made against them. They are designed to further remove the potential injustice that may be generated by the increased difficulty of proving a claim or defence after an extended period of time.

Brady and Kerr in their 2nd edition of The Limitation of Actions (Law Society of Ireland, 1994) at p. 3 described such concerns as follows:-

‘One can therefore conclude that the underlying rationales of the Statutes of Limitations 1957 and 1991 are threefold, and that they may be described as the certainty, evidentiary and diligence rationales.’

These considerations do not apply where one party seeks to enforce a judgment or order previously made against the other party thereto at sometime removed from the date upon which it was made. There is no surprise or evidential unfairness inherent in such a process. This being so there are good policy reasons for the courts to distinguish between ‘actions’ within the meaning of s. 2 of the Act of 1957 and procedures whereby an order or judgment may be executed. Similarly, there are good reasons, beyond the consideration of time limits, why a further distinction should be made between applications for leave to issue execution in respect of a prior order or judgment and an

order required for the purposes of giving effect to an existing court order and these reasons emerge in the case law referred to later in this judgment.””

39. In Start Mortgages DAC v Piggott [2020] IEHC 293, the High Court (Gearty J) applied the reasoning in Rockrohan when concluding that the Statute did not apply to an application to renew an execution order. She noted the following in relation to the English case law:

“2.3 English case law on the matter is of very limited assistance. Several cases outline the history of the limitation provisions, but the position is much clearer in this jurisdiction. In Lowsley v Forbes (t/a L.E. Design Services) [1999] 1 AC 329, the leading decision in England and Wales, the House of Lords noted the position in a case called W. T. Lamb & Sons v Rider [1948] 2 KB 331, which was that no limitation period applied to execution on a judgment and also noted that the relevant statute was enacted in 1980 in that jurisdiction after the WT Lamb case. This sequence of events persuaded Lord Lloyd of Berwick in Lowsley, to follow Lamb despite disagreeing with its logic. The case is decided, in part, due to an analysis of statutory interpretation that simply does not apply here: it is of limited interest to judges or lawyers here what Parliament intended in enacting the Limitation Act of 1980 after an English Law Reform Commission report was published or in deference to a decision in the English Court of Appeal. This Court is concerned to ascertain the meaning of the Statute of Limitations of 1957 and to apply it, using available Irish authority and common sense.”

40. That decision was endorsed in Irish Nationwide Building Society v Heagney [2022] IEHC 12, a case, as here, about an application for leave to issue execution. In that case, the High Court (Allen J) noted that there was no difference in principle between the order sought in Rockrohan and an application for leave to issue execution:

“If, strictly speaking, Rockrohan Estates Ltd. was not an application for leave to issue execution on a judgment, I can discern no difference in principle between the policy considerations applicable to an application for an order for possession required to give effect to a previous order for sale and an application for leave to issue execution on foot of an order for possession. The principles by reference to which disputes as to alleged delay in progressing a court ordered sale are slightly different to those which apply to an application for leave to issue execution, but the broad policy approach is the same.”

41. In Start Mortgages Ltd v Hendrick [2023] IEHC 11, the High Court (Simons J), having referenced Piggott and Heagney, unequivocally stated that an application for leave to issue execution does not constitute an action upon a judgment and therefore does not trigger the twelve-year limitation period prescribed by section 11(6)(a) of the Statute.

42. The defendants contend that Rockrohan and Piggott relate to different types of application, and that the conclusions of the court in Heagney and Hendrick on this issue must be regarded as obiter because in neither of those cases would the applications, in fact, have been statute barred even if the Statute applied.

43. It is not quite correct to contend that the conclusions in Heagney on the application of the Statute were obiter. In that case, although the motion issued within twelve years of the order for possession, the motion was not heard and determined until after that period had elapsed. Accordingly, Allen J was required to address the application of the Statute. It is true that the application for leave was refused, but on the grounds that no sufficient explanation had been provided for the delay in execution.

44. Mars references another case in its submissions, an ex tempore decision of the High Court (O’Regan J) in Bank of Ireland v Circuit Court Rules Committee, unreported, 30 July 2024, in which it appears that the court must have concluded that the Statute did not apply to applications for leave to issue execution. In that case, the court was asked to consider whether Order 36, rule 9 of the Circuit Court Rules 2001, which imposed a twelve-year limit on applications for leave to issue execution in the Circuit Court was ultra vires the Rules Committee. The rule provided as follows:

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 twelve 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 six 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.

* underlining added

45. Section 24 of the Courts of Justice Act 1936 provides as follows:

24.—Every judgment made (whether before or after the passing of this Act) by the Circuit Court in a civil proceeding shall continue and, in the case of any such judgment made before the passing of this Act, be deemed always to have continued to be in force and to have effect for so long as such judgment would so continue or have so continued if it had been a judgment of the High Court.

46. Thus, a Circuit Court judgment is required to continue in force for the same period as a judgment of the High Court. The court made an order declaring that the underlined words in Order 36, rule 9 as shown above should be excised from the rules as being ultra vires. The Circuit Court rules have been amended, and a new Order 36, rule 9 was substituted by SI 107 of 2024 which does not include a twelve-year time limit on an application for leave to issue execution.

47. It is clear from the foregoing, that the High Court has repeatedly expressed the view that the taking of steps to execute a judgment is not the taking of an action within the meaning of section 11(6)(a) of the Statute of Limitations. In so doing, the courts have expressly called in aid the principles identified by Irvine J in Rockrohan Estates and endorsed by the Supreme Court in that case.

48. Even if the observations in Hendrick and Heagney should properly be regarded as obiter, they remain persuasive authority. That is particularly so in the case of Hendrick, having regard to the clearly expressed conclusion of the court in that case, and in the case of Heagney, in which Allen J’s judgment concluded that the same principles apply to such applications as to that at issue in Rockrohan. It appears that the court in Bank of Ireland v The Circuit Court Rules Committee must have reached a concluded view that the Statute does not apply to applications for leave to issue execution.

49. In the circumstances, it would require a wholly compelling rationale to persuade this court not to follow these persuasive, perhaps binding precedents. All that the defendants offer in the balance is the analysis, but not the result, of the House of Lords in Lowsley v Forbes, an analysis which Gearty J described in Piggott as being of very limited assistance in interpreting Irish law. Far more persuasive in my view is the analysis of the Supreme Court in Rockrohan Estates, in relation to an analogous application, that procedural steps taken to enforce a judgment should not be subject to the same limitation provisions as are actions upon a judgment.

50. The defendants do not identify any principled basis for distinguishing between the type of order at issue in Rockrohan Estates and that at issue here. Nor do they advance any argument why the principles identified in Rockrohan Estates should not apply to applications for leave to issue execution, or put otherwise, that the purposes of the limitation provisions, certainty, evidentiary and diligence rationales, would suggest that the limitation period should apply to such applications. I am satisfied that they do not.

51. The defendants, therefore, have identified no statutory bar to the application for leave to issue execution. They have not referred to any prejudice which might cause the court to exercise its discretion to refuse. As noted by the High Court (Simons J) in ACC Bank plc v Sweeney (No.2) [2023] IEHC 503, in the absence of prejudice, the court should ordinarily grant leave to issue execution unless there has been culpable delay. Here, there has been neither delay, nor prejudice established. Indeed, in circumstances where this application was made before the order granting leave to issue execution made in May 2024 even became effective, it is perhaps unsurprising that no prejudice is even alleged.

52. In all the circumstances, I will make the order sought.

Conclusion

53. I will make an order pursuant to Order 17, rule 4 of the Rules substituting Mars Capital Finance Ireland Designated Activity Company (Mars) as plaintiff in the within proceedings.

54. I will further grant Mars leave to issue execution of the Order for Possession of the defendants’ property made by the High Court (Dunne J) in favour of Start Mortgages Limited on 5 March 2012.

55. I will list the matter at 10.30 am on 2 December 2025 for the purpose of making final orders.