Supreme Court allows mortgagee possession claim where mortgagor contractually waived limitation defense.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Appeal Number: S:AP:IE:2025:000005

[2025] IESC [45]

Charleton J. O’Malley J. Hogan J. Murray J. Collins J.

BETWEEN/

MARS CAPITAL FINANCE IRELAND DAC

PLAINTIFF/RESPONDENT

– AND –

SAMUEL WALSH

DEFENDANT/APPELLANT

JUDGMENT OF Mr. Justice Brian Murray delivered this 12th day of November 2025

1. While various provisions of the Statute of Limitations 1957, as amended, (“the 1957 Act”) or (“the Statute”) state that particular actions ‘shall not be brought’ after the expiration of specified periods of time, it has long been established that these words do not mean what they appear to say. Rather than imposing absolute prohibitions on the institution of legal proceedings, the courts have decided that such provisions merely bar a plaintiff’s remedy, but do not extinguish their right to seek it. Therefore, if a defendant does not at the appropriate time and in proper form pray in aid the relevant limitation period (and if their pleadings are not subsequently amended) the court may hear and determine such a statute-barred claim. It is also clear that a party may, by contract or by their conduct, lose the right to invoke such a limitation period. In that way, where a defendant agrees not to plead the Statute, or where their conduct is such that it would be inequitable to plead a time bar, the court will not permit them to do so and will proceed to determine the case without regard to the applicable limitation period.

2. Some of the limitation provisions in the Statute, however, go further. Those addressing the periods for the bringing of actions for the recovery of land, and the assertion by mortgagees or charge holders of their rights over land, state that at the expiry of the period for the bringing of such claims the title of the person against whom the limitation period has run, is extinguished. In this case, an issue arises as to what this means, and in particular whether a mortgagor who acknowledges for good consideration that a mortgagee will in certain events apply for possession of the mortgaged property, and who confirms he has no claim against the mortgagee arising from the extension of lending facilities, can be precluded from relying upon the 1957 Act to defeat the mortgagee’s claim.

3. The question arises because the plaintiff (“Mars”) contends that it entered into such an agreement with the defendant and that in consequence, the defendant may not invoke the applicable limitation period when Mars sought to recover possession of the mortgaged property following breaches of that agreement. In an appeal from an Order of the Circuit Court granting possession to Mars, the High Court (Barr J. [2024] IEHC 648) held that such an agreement could be enforced against the mortgagor and granted possession of the property in question to Mars. This Court granted leave to appeal on, essentially, the issue of whether Barr J. was correct to so conclude ([2025] IESCDET 44). For the reasons explained in this judgment, I consider that he was so correct.

4. The resolution of this question lies in the network of sections in the Statute governing the limitation of actions by mortgagees to obtain sale or possession of mortgaged property or to recover either principal or arrears of interest owing to them. In construing these provisions, it is to be noted that the property the subject of these proceedings is registered land. Section 2(4) of the 1957 Act provides that in the application of the Statute to registered land in respect of which a charge for the payment of a principal sum has been created, references to a mortgagor shall be construed as references to the registered owner who charged the land, references to a mortgagee shall be construed as references to the registered owner of the charge, and references to a mortgage shall be construed as references to the instrument of charge.

5. Because the mortgage the subject of these proceedings was executed before 1 December 2009 (the commencement date of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”)), and notwithstanding the repeal by that Act of certain provisions of the Registration of Title Act 1964, as amended, (“the 1964 Act”), s. 62(7) of the 1964 Act applies to the mortgage in question (s. 1 of the 2009 Act). Section 62(7) provides:

‘When repayment of the principal money secured by the instrument of charge has become due, the registered owner of the charge or his personal representative may apply to the court in a summary manner for possession of the land or any part of the land, and on the application the court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession.’

6. Section 13 of the 1957 Act addresses the limitation period for an action to recover land. The definitions in the 1957 Act make clear (s. 2(1)) that an action to recover land includes ‘proceedings by a mortgagee for the delivery of possession of land by a mortgagor’ as well as proceedings under s. 62(7) of the 1964 Act (previously s.

13 of the Registration of Title Act 1942). Section 13(2)(a) of the 1957 Act provides that no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it. For this purpose, no right to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (s. 18). It is common case between the parties that this means that the mortgagor must be ‘in ordinary possession’ of the property the mortgagee has a right to possess (Ashe v. National Westminster Bank plc [2008] 1 WLR 710 at para. 87).

7. The limitation period governing an application for an order for sale of mortgaged lands is found in s. 32(2). It states:

‘The following provisions shall apply to an action by a person (other than a State authority) claiming the sale of land which is subject to a mortgage or charge: —

(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it, or, if it first accrued to some person through whom he claims, to that person...’

8. Section 36(1)(a) of the 1957 Act addresses the recovery of the principal sum secured by a mortgage or charge. It provides:

‘No action shall be brought to recover any principal sum of money secured by a mortgage or charge on land or personal property (other than a ship) after the expiration of twelve years from the date when the right to receive the money accrued.’

9. Section 37(1) addresses the recovery of arrears of interest:

‘No action shall be brought to recover arrears of interest payable in respect of any principal sum of money secured by a mortgage or charge on land or personal property (other than a ship) or to recover damages in respect of such arrears after the expiration of six years from the date on which the interest became due.’

10. There are, altogether, three provisions relevant to this case that purport not merely to fix time for the bringing of certain claims, but also to extinguish the underlying right. First, s. 24 generally provides that ‘at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.’ This, as I have earlier explained, includes an action by the registered owner of a charge on registered land. Second, s. 33 makes similar provision as regards the remedy of an order for sale:

‘At the expiration of the period fixed by this Act for a mortgagee to bring an action claiming the sale of the mortgaged land, the title of the mortgagee to the land shall be extinguished.’

11. Third, s. 38 of the 1957 Act then ties the period for the bringing of an action for the recovery or sale of the land to claims for recovery of the principal and interest secured by the mortgage:

‘At the expiration of the period fixed by this Act for a mortgagee of land to bring an action to recover the land or for a person claiming as mortgagee or chargeant to bring an action claiming sale of the land, the right of the mortgagee or such person to the principal sum and interest secured by the mortgage or charge shall be extinguished.’

12. It is relevant that provision is made in s. 52 of the 1957 Act for the effect of an acknowledgement on the running of time. It provides:

‘Where —

(a) the right of a mortgagee of land to bring an action to recover the land has accrued, and

(b) either —

(i) the person in possession of the land acknowledges the mortgagee's title to the land, or

(ii) the person in possession of the land or the person liable for the mortgage debt acknowledges the debt, the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.’

13. Section 62 makes similar provision where there has been a part payment of a debt secured by a mortgage:

‘Where —

(a) the right of a mortgagee of land to bring an action to recover the land has accrued, and

(b) the person in possession of the land or any person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest, the right of action shall be deemed to have accrued on and not before the date of payment’.

14. The relationship between s. 13(2)(a) in fixing time for the bringing of an action to recover possession of mortgaged property (‘no action shall be brought...’) and s. 24 in extinguishing the title of the mortgagee once that time has expired, is central to this appeal. Mars says that, as with any limitation period, the defendant must plead its reliance on s. 24, that a defendant may by agreement and/or conduct lose the right to so plead, and that where that is so, the plaintiff may proceed to obtain the relief to which they are otherwise entitled. The defendant says that because s. 24 extinguishes the title of the mortgagee upon expiry of the relevant period, the question of an enforceable contract or an estoppel does not and cannot arise. At the expiry of the period referred to in the provision, on the defendant’s case, Mars’ right to recover the land has expired. On his case, nothing the parties did or can do, resuscitates it.

15. On 8 August 2003, EBS Building Society (“EBS”) offered to advance to the defendant a loan facility of €350,000 repayable over 25 years. When that offer was accepted by the defendant, the advances were secured by a mortgage against a property owned by him known as Ballyvadden House, Kilmuckridge, Gorey, Co. Wexford (“the property”). The mortgage was executed on 22 April 2004. The defendant says that he did not make any repayments of the loan after 2007. On 1 May 2009, the defendant was registered as full owner of the property, subject to the mortgage registered as a charge on the folio in favour of EBS.

16. EBS purported to transfer the loan and underlying security to Mars by global deed of transfer dated 30 April 2021. On 18 June 2021, Mars informed the defendant of the transfer. On 30 June 2021 Mars was registered as the owner of the EBS Building Society charge (entry no. 7 in Part III on the relevant folio; entries nos. 8, 9 and 10 are registered judgment mortgages). Mars remains the registered charge holder. On

5 May 2022, Mars issued a letter of demand for the arrears due on the loan facility. On 23 May 2022, Mars issued a subsequent letter of demand for the total debt due in accordance with the mortgage. Mars’ solicitors issued a further letter of demand on 28 June 2022. In a letter dated 21 July 2022, Mars, through its solicitors, notified the defendant of its intention to issue legal proceedings for possession of the property unless the debt was repaid.

17. On 3 August 2022, Mars issued proceedings seeking an order for possession of the property. Mars applied for and was granted an adjournment of that application to 2 February 2023. In February, a further adjournment was granted to 4 May 2023. Meanwhile, on 10 March 2023, the parties entered into a Settlement Agreement, compromising the possession proceedings. The agreement comprised a Settlement Letter and an Acknowledgement. The Settlement Letter was issued on 3 March 2023 by Mars to the defendant. It required the defendant to sign and return the Acknowledgment if the proposed terms were accepted.1

18. The Settlement Letter identified the then outstanding indebtedness as the amount of €651,519.84 (which it referred to as the ‘secured obligations’). It set out the payments required to be made by the defendant. It confirmed that upon payment and discharge by the defendant of a reduced and compromised sum of €250,000 in two separate instalments on 17 March 2023 (€5,000) and on or before 5 March 2023 (€245,000) or on such date as Mars agreed, Mars would provide the defendant with an executed Deed of Release or Discharge in respect of all security held by Mars relating to the secured property.

19. The Acknowledgment provided that if the defendant did not comply with the terms of the Settlement Letter, Mars could enter judgment in the amount of the outstanding secured obligations as of the date of non-adherence to the terms. The Acknowledgment also provided that in such a case, an application for an Order for Possession of any assets secured by the lender would be made. It stated that in so agreeing, the defendant confirmed that he had no actual or pending claim, or grounds for a claim against the Lender (i.e. Mars) or the Lender’s predecessor in title. The Acknowledgment was signed by the defendant, with the benefit of legal advice, on 10 March 2023.

The signed Acknowledgment was before the High Court. The Settlement Letter was not put in evidence before the Circuit Court or High Court. In the course of case management before this Court it was made clear that neither party objected to its being provided to the Court. It was subsequently made available to the Court.

20. In April and May 2023 two payments were made by the defendant pursuant to the Settlement Agreement (€1,000 and €4,000, respectively). The case being further adjourned to 12 June 2023, Mars issued a letter on 8 May 2023 notifying the defendant that he was in default of the Settlement Agreement. Subsequent correspondence was exchanged between the parties in July, August and September 2023 whereby Mars informed the defendant of its intention to apply for an order for possession of the property.

21. On 12 June 2024, the matter came before the Circuit Court (Her Honour Judge Morrissey). Counsel for the defendant applied for an adjournment, which Mars opposed and which the judge refused. No replying affidavit having been delivered by the defendant, and Mars’ proofs being in order, the judge made an order in favour of Mars pursuant to s. 62(7) of the 1964 Act for possession of the property. Judge Morrissey stayed the execution for possession for 12 months. It was further ordered that Mars recover the costs of the proceedings from the defendant. Mars says that the defendant did not dispute or contest its application for possession before the Circuit Court. The defendant says that counsel had been instructed to attend at the Circuit Court solely for the purposes of seeking an adjournment and that he was not in a position to make effective submissions to resist the application. He also says that the papers before the Circuit Court did not include a full set of account statements.

22. The defendant appealed against the order for possession to the High Court. It was before that Court that the contention that Mars’ claim was statute-barred was first advanced. That was raised in an affidavit sworn by the defendant on 11 October 2024 in which he averred that ‘to the best of your deponent’s knowledge’ the last payment made to the mortgagee prior to the issuing of these proceedings was ‘in or around 2007’. The defendant also said that a full set of the account statements had not been provided, and he exhibited correspondence from his solicitors sent in August 2024, in which those statements had been sought. As a result, he said, ‘the within averments can only go so far as can be recalled after such a long passage of time’.

23. In his judgement delivered on 15 November 2024 ([2024] IEHC 648), Barr J. gave the reasons for his decision to dismiss the appeal. The defendant had resisted the application for an order for possession on three grounds; only the argument around the effect of the Statute is relevant to the proceedings before this Court. In that regard, the defendant said that the combined effect of ss. 13(2)(a), 32(2)(a), 33 and

38 thereof – having regard to the fact that no payment was made by the defendant in respect of the loan since 2007 – was that the loan and mortgage were extinguished in or about 2020/21. Before this Court, the defendant in addition (and indeed principally) relied upon s. 24 of the Statute.

24. Noting the provisions of the Statute relied upon by the defendant, Barr J. agreed that the effect of these was indeed that upon the expiry of 12 years from the accrual of the cause of action of the mortgage, the mortgage itself is extinguished. He proceeded to consider the Settlement Agreement. He noted (at para. 56) that the Settlement Letter was not exhibited (although, as I have noted, the Acknowledgement was before the Court2) but stated that it had been accepted that it set out the total amount owed and a schedule for repayment. The judge felt that a number of things were clear from this agreement. Firstly, the defendant acknowledged the existence of the debt owed and his obligation to pay it. Secondly, the Settlement Agreement made clear that it was completed by the defendant with the benefit of legal advice and in the context of settlement of the proceedings. Third, the defendant acknowledged that a failure to comply with the terms of the Agreement would entitle Mars to proceed inter alia by way of obtaining an order for possession. Barr J. also noted that the defendant had made two payments in purported compliance with the Settlement Agreement in 2023.

25. The judge accepted the defendant’s submission that while a mere acknowledgment of title cannot revive an extinguished right of action, an acknowledgment that is contained in a written settlement agreement can give rise to an estoppel, which can prevent the debtor relying on the 1957 Act. In concluding that similar principles applied where title was extinguished by the Act, Barr J. relied heavily upon the

decision of the English Court of Appeal in Colchester Borough Council v. Smith & Ors [1991] Ch. 421 (High Court) and [1992] Ch 421 (Court of Appeal) (“Colchester”). There the defendant was held to be estopped from relying on the Limitation Acts applicable to those proceedings and from claiming that he had obtained title to a property by adverse possession, by virtue of an agreement where The Settlement Letter and Acknowledgement were referred to in the Supplemental Affidavit of Ronan Hopkins sworn on behalf of Mars on 22 May 2023 but, Mars says, the Settlement Letter was inadvertently not exhibited. he had expressly acknowledged the plaintiff’s title to the land and acknowledged that he had not gained any right, title or interest to, or in it, by adverse possession.

26. The Court also cited St Pancras & Humanist Housing Association Limited v. Leonard [2008] EWCA Civ 1442 as support for the proposition that a defendant can be estopped by virtue of representations from raising any point under the Statute of Limitations. He referred to Binder v. Alachouzos [1972] 2 QB 151 where the validity of a settlement agreement was upheld, that agreement permitting the plaintiff to pursue the defendant in respect of a debt said to have been due on foot of an unenforceable moneylending agreement where that agreement was a ‘bona fide compromise of an existing dispute’.

27. On that basis, it was held that by virtue of the Settlement Agreement, the defendant was estopped by conduct and by representation from disputing the existence of the debt or from raising any point under the 1957 Act against the debt or mortgage. Barr

J. stated that where a settlement agreement makes provision for the continuation of the original cause of action in the event of a dispute, it is possible for the plaintiff in the original proceedings to continue with his claim for the reliefs sought in the original proceedings. Noting that the Settlement Agreement in this case contained a provision that Mars could proceed by way of an order for possession in the event of default by the defendant, he held that given the defendant had not honoured the repayment schedule provided for in the Settlement Agreement, Mars was entitled to an order for possession over the property.

28. In its Determination [2025] IESCDET 44, the defendant was granted leave to appeal by this Court on only one of the asserted grounds of appeal. That ground was whether the Settlement Agreement entered into by the parties gives rise to an estoppel such as is capable of precluding the defendant from relying upon the invoked provisions of the 1957 Act. The panel was of the view that it was a matter of general public importance that this issue be resolved.

29. The defendant’s counsel put it neatly when they frame the critical question before the court as whether the plaintiff ‘can raise an estoppel to reinvigorate a property interest which had been extinguished in accordance with the 1957 Act.’ Mars, obviously, says it can. It refers to the conclusiveness of the register provided for in s. 31(1) of the 1964 Act. It strongly urges the entitlement of parties to contract on the basis of a given state of affairs and stresses the general principles of law that entitle one party to such an agreement to assert a contractual estoppel against another. The defendant, in response, relies upon the language of the relevant provisions of the Statute of Limitations to which I have earlier referred, stressing that the intention of those provisions in extinguishing title was to bring certainty to questions of title to land, not only to the specific parties affected by a dispute over ownership, but to the world at large.

30. In analysing that question, it is useful to begin by observing the consequence of the fact that each of the causes of action enjoyed by mortgagees and charge holders to enforce their interests under those mortgages and charges and referred to in the 1957 Act – the right to recover land (s. 13), to obtain an order for sale (s. 32), to recover principal money (s. 36) or to recover interest (s. 37) – are framed by the language ‘no action shall be brought...’. As I have earlier noted, it is firmly and authoritatively established in Ireland that those provisions bar a plaintiff’s remedy and not their right, and that if a defendant does not pray in aid the relevant limitation period, the court has jurisdiction to hear a claim that is otherwise statute-barred: ‘in cases where the statute in question only bars the remedy and does not extinguish the right, the relief or defence given by the Statute does not operate until pleaded’ (O’Reilly v. Granville [1971] IR 90, 108 per Budd J.). The legal position was most cogently described and explained by Henchy J. in the course of his judgment in O’Domhnaill v. Merrick [1984] IR 151, 158:

‘Although the Statute states that an action “shall not be brought” after the expiration of the period of limitation, such a statutory embargo has always been interpreted by the Courts as doing no more than barring a claim instituted after the expiration of the period of limitation if, and only if, a defendant pleads the statute in defence. It is only when a defendant elects to rely on the statute as a defence that the statutory bar operates. Consequently, although a claim may be plainly, and on the face of the claim, brought after the expiry of the relevant period of limitation, the action will not be held to be statute barred unless the defendant elects by a plea in his defence to have it so treated. Thus, although the statute says that the action “shall not be brought” after the statutory period, such a prohibition in a statute of limitations has been construed not as barring a right to sue but as vesting in a defendant a right to elect, by pleading the statute, to defeat the remedy sought by the plaintiff.

So construed, the statute does not bear on a plaintiff’s right to sue, either within or after the period of limitation. What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation has passed and if a defendant pleads the statute as a defence. In such circumstances the Statute provides an absolute defence to that particular action.’

31. It is also firmly established that for this reason, an estoppel can be raised so as to prevent a defendant from pleading the Statute of Limitations, thereby depriving them of the benefit of the defence afforded by the limitation period. This can arise in different ways. It can occur where there is a representation made by the defendant that induces the plaintiff to withhold the institution of proceedings (Doran v. Thompson [1978] IR 223), it can arise where there is an unambiguous indication by the defendant that liability to the plaintiff had been conceded and that in the event proceedings were instituted outside the statutory period, no defence under the Statute of Limitations would be raised (Ryan v. Connolly [2001] 1 IR 627, 633 per Keane J.), and it can arise where the defendant so conducts themselves that there is an implied representation to that effect (Murphy v. Grealish [2009] 3 IR 366). It necessarily follows that a party by entering into a contract can, similarly, preclude themselves from pleading the Statute of Limitations in response to a particular claim. A waiver of the limitation defence arises where ‘the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon non-compliance’ (Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] AC 850, 881 per Lord Diplock).

32. Some of the more recent cases refer to such an agreement as giving rise to a ‘contractual estoppel’ (although this is perhaps best understood as merely the enforcement of a contractual term which on its true construction prevents a party from denying facts specified in that term in the circumstances specified in it: see Springwell Navigation Corp. v. JP Morgan Chase Bank [2010] EWCA Civ 1221 and Chitty on Contracts (35th edn, Sweet & Maxwell 2023) at para. 7-029. For reasons I explain later, it is not necessary in this case to resolve conclusively the status and limits in Irish law of ‘contractual estoppel’. The critical question is whether a contractual term can be deployed to preclude reliance on the provisions of ss. 24, 33, and 38, each of which extinguish the title of the mortgagee and their right to principal and interest and each of which provides that this shall occur ‘at the expiration of the period fixed by this Act...’ for the bringing of an action seeking the reliefs of possession, of sale, or for the recovery of principal or interest, as the case may be.

33. The most striking feature of the law around this question, is how little of it there is. While reference was made in the defendant’s submissions to a number of cases involving acknowledgements (which raise distinct issues, and to which I will later return), in the course of their arguments, the parties identified only two decisions touching on the specific issue arising in this appeal. Neither was on all fours with this case, and each arose in a legal context which – at least according to the defendant – differs significantly from that in Ireland.

34. In Colchester the defendant contended that he had, by 1979, obtained title by adverse possession over a plot of land. In 1983, the plaintiff council entered into an agreement with the defendant pursuant to which a lease of the land was purportedly granted by the plaintiff to the defendant. In consideration, the defendant expressly agreed that he had not obtained any right, title or interest in the property by adverse possession. When the plaintiff brought subsequent possession proceedings, the defendant contended that because the plaintiff’s title to the land had been extinguished by adverse possession it was impossible having regard to the relevant provisions of the Limitation Acts for that title to be revived by agreement. Counsel for the defendant put the point to the Court of Appeal in terms redolent of the argument advanced in this case: ‘[o]nce a title to land has been extinguished, a subsequent acknowledgement of the title does not revive it, even where the alleged acknowledgement is more than merely verbal and consists of a payment of money’ (at p. 424).

35. That the question of whether, in fact, the defendant had acquired title by adverse possession was a complex one is of some relevance to the reason for the eventual

decision in the case, although the detail of the complexity (which lay in the relationship between two UK statutes, the Agricultural Holdings Act 1948 and the Limitation Act 1939) is not material. The High Court judge, Ferris J. concluded that the defendant held the land on foot of an expired licence rather than a tenancy (as the plaintiff council had argued) and that his exclusive possession without payment of rent for the relevant period amounted to adverse possession for these purposes. The position of the Council in response to the contention that the 1983 agreement was ineffective because the plaintiff in fact had no title to the property was originally met with a claim (a) that it could obtain damages from the defendant for breach of warranty of title, and (b) that the agreement constituted a reconveyance of land to the Council. The second argument failed because of the terms of the agreement, and the first fell away because of the conclusions reached by the High Court judge as to ‘estoppel’, an argument that had not been pleaded and that appears to have been advanced very much at the last moment. Insofar as that argument went, the judge concluded that the agreement gave rise to an estoppel by contract or by convention, the effect of which was to prevent the defendant from invoking the Limitation Act.

36. The Court of Appeal – without hearing argument from the plaintiff – upheld the

decision of the High Court granting possession: the agreement was a compromise to resolve a dispute between the defendant and the plaintiff, and just as a bona fide compromise of a dispute as to whether a defendant was a moneylender could be enforced even though a moneylending agreement itself was unenforceable (Binder v. Alachouzos), a compromise of a dispute as to whether a defendant acquired title to land by adverse possession could be given effect to. Dillon LJ after quoting extensively from Binder v. Alachouzos said (at p. 429): ‘I see no reason why that reasoning should not also apply where the dispute was as to whether or not the defendant had acquired a title to land by adverse possession.’ Butler-Sloss LJ (at p. 435) rooted her conclusion in the strong public policy in facilitating compromise:

‘In my view the courts have an interest in upholding agreements to compromise disputes. The terms of the agreement to compromise under review are therefore in a wholly different position from the situations caught within the scope of the Limitation Acts, such as payment of rent or acknowledgment of title’.

37. Published before the decision in Colchester, the first edition of Brady and Kerr’s authoritative text Limitation of Actions in the Republic of Ireland (Incorporated Law Society of Ireland 1984) addressed a related issue as follows (at p. 66):

‘When the full limitation period has run no acknowledgement or part payment can revive any right to recover land. This was the inevitable consequence of the change wrought by s. 34 of the Real Property Limitations Act 1833, which provided that when the full period of limitation had run the owner’s remedy and title were barred. There is then nothing left to acknowledge. The latter provision is continued in s. 24 of the Statute.’

38. A decade later, the second edition (at p. 112) observed that this ‘bald statement … now requires some qualification’ having regard to Colchester (Brady and Kerr, The Limitation of Actions (2nd edn, Incorporated Law Society of Ireland 1994)). Commentary in England was less acquiescent. Following the decision of the High Court, the judgment of Ferris J. was described as ‘a truly extraordinary decision’ the reasoning in which was ‘misconceived’ (Martin Dixon, ‘Title by Adverse Possession Lost by Estoppel’ (1991) 50(2) CLJ 234 at pp. 234, 236 respectively).

Estoppel by convention and estoppel by contract operate only to bind parties to an assumed state of fact, it was contended, and once the elements of adverse possession have been established, the title of the owner is extinguished by operation of law and there is nothing left to revive. There was, it was observed, clear and unambiguous authority that once an owner’s title has been extinguished, a subsequent acknowledgement cannot revive it (citing Sanders v. Sanders (1881) 19 Ch D 373 and Nicholson v. England [1926] 2 KB 93). Some of the criticism was unusually pointed (Brierley, ‘Adverse possession: a case of death and regrettable resurrection’ (1991) Conv. 397, 397):

‘[T]he last four pages of the judgment contain a heresy, and … land law lecturers need not rewrite their lecture notes, unless they feel inclined to make a rather condescending remark about the dangers of judges being hoodwinked by ingenious counsel whom they allow to introduce novel arguments at a late stage in the trial so that their opponents do not have sufficient time to study carefully the real property lawyer’s Bibles ... by reference to which so many heresies, including this one, can be instantly and convincingly extirpated’.

39. McGee’s Limitation Periods (9th edn, Sweet and Maxwell 2022) refers to the High Court decision describing it as ‘somewhat surprising’. Noting the lack of authority supporting the invocation of an estoppel, the text describes the document under which the defendant purported to take a lease from the plaintiff as meaningless except on the basis that the defendant was not the freeholder. In his view, the case ought instead to have been resolved on the basis that the purported lease was void either for common mistake or impossibility: ‘[t]his decision seems to give rise to an undesirable method of circumventing the rule that the expiry of the 12-year period in relation to land extinguishes the paper-title holder’s rights’ (at para. 18- 043).

40. Colchester is not without its supporters. Jourdan and Radley-Gardner’s Adverse Possession (2nd edn, Bloomsbury Professional 2011) describes these criticisms as ‘unjustified’: ‘[t]here are some statutes which parties cannot contract out of … there is nothing in the policy of adverse possession to prevent a squatter reconveying title to the former owner, and no reason why estoppel should not prevent a squatter from asserting that his adverse possession extinguished the owner’s title’ (para. 19-39). Martin Canny’s Limitation of Actions (3rd edn, Round Hall Press 2022), while noting that the judgment has been criticised, describes the decision in Colchester as providing ‘a useful and effective means of defeating the argument of an unscrupulous party where it would be unconscionable for him to argue that an admitted or proven acknowledgement was of no effect’ (para. 7-10). Megarry and Wade cite the decision uncritically as authority for this proposition (Megarry and Wade, The Law of Real Property (8th edn, Sweet & Maxwell 2012) 559):

‘Once the full period has run, however, no payment or acknowledgement can revive a right to recover land, for the elapse of time will have extinguished not only the owner’s remedies for recovering the land, but also his right to it. It is otherwise in the case of other actions, where lapse of time bars only the remedy and not the right. Yet by estoppel a squatter, like any other land-owner, may preclude himself from asserting his title.’

41. Colchester was not referred to in the second decision identified by the parties – that of the High Court of Australia in Price v. Spoor [2021] HCA 20. There, a related (if in some respects, different) issue arose. In that case, the agreement contained an express undertaking not to invoke the Statute of Limitations, and it appeared not in a contract executed after the limitation period had expired, but rather in the mortgage itself. The defendant having defaulted on its obligations under that agreement, the plaintiff sought recovery of the monies owing to it, together with possession of the land the subject of the mortgages. The question was whether the defendant could, notwithstanding the provisions of the mortgage agreement, plead the Statute of Limitations in response to the claim. The applicable statute imposed a limitation period of six years for recovery of the debt (Limitation of Actions Act 1974 s. 10(1)(a) (Queensland)). The period for recovery of land (s. 13) was provided for in terms similar to those in s. 13 of the 1957 Act, while s. 24 of the Queensland Act provided:

‘… where the period of limitation prescribed by this Act within which a person may bring an action to recover land … has expired, the title of that person to the land shall be extinguished.’

42. Much of the analysis in the judgments in Price v Spoor is directed to whether the specific clause of the agreement in question had the effect contended for by the plaintiff (it did), whether the exclusive remedy for a breach of that clause lay in an action for damages (it did not) and whether it was possible under the law of the relevant jurisdiction to contract out of a limitation period generally (it was). The particular question of whether it was possible to preclude by contract the operation of a statutory provision that provided for extinguishment of the title of a person where their right to seek possession of land had become statute-barred, may have been argued somewhat less emphatically than the other issues,3 but it was nonetheless carefully addressed in the judgments of Kiefel CJ and Edelman J. (with which in this respect Gageler and Gordon JJ. agreed) and in the separate judgment of Steward J. All agreed that a provision similar in terms to s. 24 of the 1957 Act was dependent upon the provisions fixing the underlying limitation period. In their view, it followed that a defendant who had disabled themselves from pleading that limitation period could not rely upon the extinguishment of title said to follow its expiry.

43. The reasoning was as follows. Kiefel CJ and Edelman J. felt that s. 24 operated ‘by reference to the plea’, in other words that it contemplated that a plea of a time bar would be made under s. 13 and, if successful, would be given effect. That followed from the text of s. 24, which referenced ‘the period of limitation prescribed by this See para. 22 of the judgment of Kiefel CJ and Edelman J., and para. 110 of the judgment of Steward J. who observed of s. 24: ‘[i]t also appears to have been accepted that a party cannot exclude its application by contract because it serves a public need’.

The trial judge ([2019] QSC 53) had decided that it was not possible to exclude the operation of s. 24 by contract because it did more than simply bar a remedy (para. 27), while the Appeal Court ([2019] QCA 297) noted that this finding had not been appealed and did not arise before it (para. 69), the issue being whether that provision applied to a charge over registered land. But, it decided, the period of limitation prescribed by s. 13 had never applied and thus had never expired (para. 76). The High Court viewed this as presenting the question of whether ‘s. 24 operated automatically at the end of the limitation period to extinguish the respondents’ interest in the land as mortgagee regardless of whether the appellants pleaded the limitation period by way of defence.

That is to say, s. 24 is to be understood to operate independently of s. 13, rather than providing for what follows from a successful plea’ (para. 22). If s. 24 did not operate independently of s. 13, that meant that s. 24 did not apply if a particular defendant could not plead s. 13 (para. 110). Therefore, the Court was in fact addressing itself to whether s. 24 could be contracted out of, albeit indirectly in a context in which the contract was said to have prevented title from ever being extinguished, rather than to have revived a title that had been extinguished.

Act within which a person may bring an action to recover land’. So, textually, this was found to suggest that s. 24 proceeded on the same footing as the limitation period fixed by the Act for the bringing of an action to recover the land and that period, in turn, had to be pleaded (para. 23). Noting that the purpose of provisions such as s. 24 was to ‘clear the title’, it was suggested that ‘[t]here would be no need to clear a title if the provision took effect without the defence of limitation being raised’ (para. 24). Moreover, it was felt that if s. 24 operated automatically, there would be no utility to the requirement in s. 13 that the defendant plead the Statute: if the section was construed as suggested by the defendant ‘there would remain no right or title in respect of which a remedy could be given’ (para. 25).

44. Steward J. observed that the defendants did not contest that s. 24 only applied to extinguish the plaintiff’s title as mortgagees if their claim was statute-barred, noting that the defendants had not appealed the finding of the Supreme Court of Queensland that ‘as between mortgagor and mortgagee, the period of limitation prescribed by s. 13 has never applied and hence has never expired’. Nonetheless he proceeded to examine the argument, stressing in particular that the language of s. 24 did not simply refer to the twelve-year period prescribed by s. 13 regardless of whether a party has invoked the Limitation Act as a defence (para. 110).

45. In the course of his judgment, Steward J. referred to the decision of the House of Lords in St. Marylebone Property Co. Ltd. v. Fairweather [1963] AC 510 (“Fairweather”) in support of the proposition that provisions such as s. 24 ‘extinguish no more than “the title of the dispossessed against the dispossessor”. In other words, whatever “title” is extinguished is not extinguished against the whole world. Rather, it is extinguished against the dispossessor’ (at para. 114). He explained (at para. 116):

‘Section 24 is relevantly here an ancillary provision intended to facilitate the better operation of s 13 of the Limitation Act. The reference in s 24 to the “period of limitation prescribed by this Act within which a person may bring an action to recover land” is a reference to s 13 and its operation. As such, the phrase “may bring an action to recover land” in s 24 must be read, as in the case of s 13, not literally, but as a reference to a defendants’ ability to plead that a claim is statute-barred.’

46. He summarised the conclusion thus (at para. 118):

‘If no defence of limitation is pleaded for whatever reason, the period within which to bring an action, here for the purposes of s 13 of the Limitation Act, will have never expired. And that is so for the purposes of both ss 13 and 24. Where, however, the defence is successfully pleaded that an action to recover land is statute-barred, the effect of s 13 is that the remedy of recovery of the land is barred, and the further effect of s 24 is that the "title" of the person seeking recovery of the land is "extinguished". Section 24 thus ensures that the issue of "title" is put beyond doubt where s 13 has applied, consistently with the reasons for the original enactment of s 34 of the Real Property Limitation Act 1833 (UK). This conclusion is supported by the fact that s 24 does not extinguish a person's title against the whole world, but only against the dispossessor …. Its application is limited to the dispossessor and dispossessed because it is the dispossessor who has the option to plead the defence conferred by s 13, thus triggering a possible application of s 24.’

47. In the present case, there were inevitable difficulties arising from the point at which, and manner in which, the defendant raised his limitation defence. Because these were summary proceedings in which Mars sought relief on foot of affidavit evidence, there were no pleadings and therefore no clear identification of all of the issues between the parties. Because the issue of the possible application of the Statute of Limitations was raised only on appeal before the High Court, the evidence addressing that question was sparse. Perhaps because of these considerations, and also because the full agreement was not before the High Court, that Court did not conduct a detailed analysis of the terms of the Settlement Agreement itself. There has never been a decision that the claim is, in fact, statute-barred. It is in these circumstances that it has been urged that the case should, simply, remit the matter to plenary hearing.

48. While in normal course, matters of this complexity would not be suitable for determination in a summary judgment application, the Court is in a position to address the construction of the Settlement Agreement if, as the defendant contends, his claim is in fact statute-barred. Given that the High Court has ruled on the substantive issue of whether an estoppel may be raised so as to prevent reliance on those provisions of the Statute of Limitations that operate to extinguish title (and noting the general importance of that issue) if the case is remitted to plenary hearing without an adjudication on that question, its conclusions will remain the governing law until the matter comes back to the Court of Appeal or to this Court. In those circumstances, the Court should proceed to determine whether the High Court was correct to conclude that the defendant was precluded from pleading the Statute by the agreement with the plaintiff.

49. In that regard, the defendant asserts that – whatever the correct resolution of the legal issue before the Court – Mars has not made out on the facts any agreement that the defendant would not pray in aid the Statute. All he acknowledged, it is said, was that Mars would apply for possession of the property. He never agreed, it is argued, that he would either consent to this, or that he would waive any rights of defence he may have had to such an application.

50. Even taking the acknowledgement that Mars would seek possession on its own, I am not impressed by this contention. Put in context, it seems clear to me that the purpose of the agreement was that in exchange for payment of the specified sums, the plaintiff was writing off a significant proportion of the debt owed to it on the basis that if the defendant failed to comply with the terms of the agreement, Mars could proceed to enforce all of its rights. That is not consistent with the defendant holding in reserve the right to contend that, in fact, Mars had no entitlement to seek this relief at all.

51. However, the agreement went significantly beyond this. The two documents together recorded the following:

(i) The defendant’s acknowledgement and confirmation that he was indebted to Mars in the full amount of the secured obligations, and that in the event of his not complying with the conditions in the Settlement Letter, Mars was ‘entitled to pursue me for the entire amount of the Secured Obligations’, that he would not dispute same, and that Mars could enter judgment against him in the amount of those obligations outstanding at the date of non-adherence;

(ii) In the event of the defendant’s non-adherence to the terms of the Settlement Letter, he said ‘I acknowledge that an application for an Order of Possession on any assets secured by the Lender will be made’.

(iii) He confirmed that he had ‘no actual or pending claim or grounds for a claim (actual, current, contingent or otherwise) against the Lender, or the Lender’s predecessor in title … insofar as such claim may arise from the Facilities.’

(iv) Moreover, he acknowledged that to the extent that any such claim ‘exists or may in the future exist, insofar as such claim may arise from the Facilities’ he irrevocably waived such claim or right of action.

52. Insofar as the defendant makes the point that the acknowledgement does not record any agreement that he would either consent to possession, or that he was waiving any rights he had to dispute Mars’ entitlement to such an order (and, indeed while he might have made the point that the application was for possession of secured assets, of which on his case at the time the agreement was executed, there were none), this is to read only part of the Acknowledgement. The reference to Mars seeking possession is combined with an abandonment by the defendant of all claims against Mars that may ‘arise from the Facilities’. These were defined in the Settlement Letter as the ‘Loan Accounts made available pursuant to Finance Documents listed below’. Those ‘Finance Documents’ comprised the Facility Letter of the 8 August 2003, and the Mortgage of 22 April 2004.

53. Yet, the whole point here is that the defendant maintains that he had precisely such a claim. Mars asserted a right (which the defendant necessarily describes as a ‘title’ – a description to which I return). That right, Mars said, enabled it to obtain possession of the property. That right, as claimed, derived from the mortgage agreement. The defendant contends that Mars had lost that right by reason of inter alia the defendant’s failure over a period in excess of twelve years to pay the monies due pursuant to that agreement in accordance with its terms. This is a claim that arose from ‘the Facilities’ because the claim itself depended on the terms of those Facilities, their application to the facts as alleged by the defendant, and the consequences attached by the law to the failure of the defendant himself to comply with those terms. The claim, of course, came into being primarily because of the operation of the Statute as contended for by the defendant, but it is so intimately connected with the provisions of the agreement, and is so dependent on the defendant’s own alleged non-compliance with its terms, as to be properly described as ‘arising’ from it. In short, a claim in which it is asserted that a lender is precluded from enforcing its rights under a mortgage pursuant to which loan facilities were advanced and in which that claim is dependent on terms of those facilities is a claim that ‘arises from’ those loan facilities.

54. Moreover, this is not simply a defence to a claim that Mars might bring. It is a claim that the defendant would have been within his rights in agitating directly and proactively against Mars (see, by way of example, Bula v. Crowley (No.3) [2003] 1 IR 396). The whole point of the defendant’s argument is that he had obtained vis-à-vis Mars the substantive right to exclude it from possession of the property notwithstanding the provisions of the mortgage agreement. That was a claim against Mars arising from the loan facilities, and that is precisely what, in the Acknowledgment, he had both denied and abandoned. This was a representation that was clear and unequivocal and could only have meant that the defendant was waiving the right to assert that the property that might appear to have been mortgaged to Mars (and that was registered as such) was, in fact, not encumbered by any such charge (see the remarks of Charleton J. in Ulster Investment Bank Ltd. v. Rockrohan Estate Ltd. [2015] IESC 17, [2015] 4 IR

25 at para. 26).

55. The facts thus go significantly beyond a representation made or position adopted by the defendant that might make it inequitable for him to invoke the Statute; he has entered into a binding agreement not to assert the rights that, he contends, it confers upon him. To that extent, it is not necessary to probe whether the constituents of an ‘estoppel’, contractual or otherwise, are present. The issue is simpler. The defendant agreed for good consideration that he had no claim against Mars arising from the facilities, and waived any claim he did have. The question is why, exactly, he should be released from the obligation to comply with that agreement.

56. For the defendant, the fact that the legislature has specified that the title of a mortgagee is extinguished following the expiry of the limitation period for the recovery of possession of the charged lands means that Mars, as a statute-barred plaintiff, has no interest in the mortgaged lands, and therefore an agreement to allow it to enforce a title that it does not have, is meaningless and, thus, unenforceable. The very reason, it is said, the legislature has, for almost two hundred years, provided for the extinction of statute-barred titles is to differentiate them from those claims in which the remedy, but not the right, has been barred by law. Therefore, the argument advanced by the defendant runs, the plaintiff cannot hold the defendant to a contract or, for that matter, to an extra-contractual promise, that is (a) based upon an assumption that is, as a matter of law, demonstrably untrue and (b) in the teeth of the strict legal position demanded and imposed by the Statute. The plaintiff, on this argument, has lost its ‘title’, and it cannot enforce an agreement that pretends otherwise, nor can it manufacture an estoppel that is based on an incorrect legal proposition. At various points in his case the defendant – necessarily – presents this argument as that any agreement or promise is vitiated by public policy and/or contrary to statute. It is, indeed, this argument that forms the centrepiece of the defendant’s claim that this Court should decline to follow Colchester: once an action to recover land is time barred, he says, the owner’s title is extinguished, and equity cannot breathe new life into a title which has been extinguished. To hold otherwise would be to allow an estoppel to contradict the clear words of the 1957 Act.

57. In a universe of straight lines and legal absolutes, all of this might be unimpeachable. The reality, however, is more distorted and relative. There will, without doubt, be cases in which the issue of adverse possession of this kind for a period of time is clear and easily ascertained, but in other cases it will not be quite that straightforward. While the 1957 Act provides that upon becoming statute-barred from pursuing a claim for possession a mortgagee loses their title, and while it is common to say that title is extinguished ‘after twelve years’ the extinction is the extinction of a particular claim by a particular party against a particular party (‘the title of that person’). Extinguishment does not therefore necessarily occur by virtue of a clear and indisputable event. Instead, it will be dependent on the actions of, dealings between, or the absence of any dealings between, the mortgagor and mortgagee. Whether time has run depends on the provisions of the mortgage, whether – and if so when – payments have been made under it, whether the mortgagor has been during the relevant period ‘in ordinary possession’, and whether prior to the expiry of the limitation period, there has been an acknowledgement of title or part payment. Moreover, in the case of individual mortgagees, the Statute may, in accordance with generally applicable provisions, be tolled in the event of a disability as defined in s. 48 thereof (s. 49(1)(a)).

58. At each of these points, dependant as they are on matters of fact and evidence, there may be scope for argument and dispute. A mortgagee who determines to proceed to court to seek possession may well be met with a plea that their claim is statute-barred and title extinguished, and it is open to a defendant who is confident of their case to proceed to trial seeking a determination to that effect. If they prevail, the plaintiff’s title is indeed confirmed to have been extinguished. But, when in litigation parties must always at least consider the attractions and certainty of compromise, there is a strong public policy in incentivising them to do so, and as a matter of practicality, it is difficult to see what sense there is to a rule that would debar either a plaintiff as part of such a compromise from obtaining a right to seek possession contingent on non-compliance by the mortgagor with agreed terms or a defendant from abandoning any claim they may have that the plaintiff’s title has been extinguished.

Of course, that policy cannot extend so as to permit parties to enter into sham agreements whereby under the pretence of compromise of fictitious disputes they purport to revive what are plainly extinguished titles: the decision in Binder v. Alachouzos to which Barr J. referred in the course of his judgment stressed that it was only where there was a compromise of a bona fide dispute that the court would give effect to an agreement of this kind. Where, to take but one example, a final determination of a court or, in the case of registered land, the Authority pursuant s. 49 of the 1964 Act, has issued that title, has in fact been extinguished the matter is clear and there is nothing to compromise.

But where legally represented parties are involved in litigation of the kind in issue here, they must be entitled to compromise their claims without the mortgagee (or other paper owner) facing the prospect that the mortgagor (or other party) could subsequently unravel that agreement. As it was put by Moore-Bick LJ in Peekay Intermark Ltd. v. Australia and New Zealand Banking Group Ltd. [2006] EWCA Civ 386, [2006] 2 Lloyds Rep 511 at para. 56, ‘[t]here is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, whether it be the case or not’.

Christopher Clarke J. in Raiffeisen Zentralbank Osterreich AG v. Royal Bank of Scotland plc [2010] EWHC 1392, [2011] 1 Lloyd’s Rep 123 framed the law similarly:

‘Parties to a contract may agree that a particular state of affairs is to be the basis upon which they are contracting, regardless of whether or not that state of affairs is true. A line of authority established that such an agreement may give rise to a contractual estoppel, precluding the assertion of facts inconsistent with those that have been agreed to form the basis of the contract.’

59. These statements of principle enjoy even greater force when the agreement involves an express waiver by the mortgagor of all and any claims against the mortgagee relating to the facilities. While the defendant says in response that a new charge may be created if the concern is to compromise, that not only adds a layer of complexity and cost to what will often be (and should usually be) a relatively straightforward agreement settling a legal dispute, but also requires the plaintiff to acknowledge the extinction of a legal title that they may well not accept has been extinguished and which therefore may be an acknowledgement they may not wish to make. The rule suggested by the defendant is thus liable to discourage settlement, and to cast considerable uncertainty over any agreement between a party claiming an interest in property, and a party in possession thereof, whereby the possessor relinquishes claims over the land. Whether or not that is so, the starting point of the legal analysis has to be that the onus is on a party resisting enforcement of a contract they have willingly entered into (in this case with the benefit of legal advice) to identify the legal basis on which such a compromise should not be enforced.

60. In that regard, the defendant places some reliance on a series of cases in which it was decided that a party cannot, through an acknowledgement or payment of rent, revive a title that has been extinguished. Mars has not contended otherwise. Indeed, it was these cases that seem to have sparked much of the surprise and at least some of the academic outrage at the decision in Colchester. However, those cases need to be put in context. In the late nineteenth century, there was in fact authority that payment of rent after the period of twenty years then fixed for the expiration of title could revive an otherwise barred title (Bunting v. Sargent (1879) 13 Ch. D. 330). The contrary was suggested in Sanders v. Sanders, where Jessel MR said of an acknowledgement ‘when a title has been extinguished by the statute, no mere acknowledgement by the person who has acquired under the statute as good a title as if by conveyance had been made to him can restore the old title’ (at p. 379). Sanders v. Sanders, it might be noted, was cited as the basis for a similar conclusion in what Barton J. characterised as a claim ‘in the nature of an action for foreclosure’ in Beamish v. Whitney [1908] 1 IR 38 (that

decision must be viewed having regard to the fact that in Re the Estate of Lloyd; Waters v. Lloyd [1911] 1 IR 153, the Court of Appeal stressed the absence in Ireland of a remedy of foreclosure, characterising such a claim as one to recover a debt within the meaning of s. 8 of the Real Property Limitation Act 1874, and not an action for the recovery of land within the meaning of s. 1 of that Act). In any event, by the end of the nineteenth century, the position was viewed in the main authorities as quite clear. Darby and Bosanquet (A Practical Treatise on the Statutes of Limitations in England and Ireland, 2nd edn, 1893) cited Sanders v. Sanders as authority for the proposition that an acknowledgement was of no effect after the prescribed period had expired ‘because the title by means of the 34th section then becomes extinguished, and this section can have no operation in reviving it’ (p. 381). Payment of interest on a debt secured by a mortgage where the mortgagee was in possession and the mortgagor’s title was extinguished could not revive an extinct mortgage (p. 459).

61. The decision in Nicholson v. England elaborated on this further. The statutory provision relied upon by the plaintiff there (s. 8 of the Real Property Limitation Act 1833 (“the 1833 Act”)) referred to time for recovery of leased land running from the point at which rent was last paid, with the plaintiff contending that this meant that any purported payment of rent had the effect of starting time again. That was rejected; the reference in the Statute to rent payable in respect of a tenancy had to be construed as referring to rent payable under an existing tenancy, and not one that had expired. The High Court (Sankey and MacKinnon LJJ) thus concluded that Bunting v. Sargent had been wrongly decided. The conclusion, in other words, was based on the interpretation of the legislation – which is where the acknowledgement of title or debt is regulated. To that extent, many of the decisions cited by the defendant in support of his position (Lewis v. Plunket [1937] 1 All ER 530) do not in truth advance it. The same conclusion would appear to follow today from a similar construction of the language used in ss. 52 and

62 of the Statute, construing the references in those provisions to acknowledgements of the mortgagee’s ‘title’ and the ‘debt’, as referring to existing, rather than extinguished, ‘title’ and ‘debt’.

62. There is no similar restriction arising where the question is simply one of the effect of a contract or an estoppel. Contracts will always, and estoppels will sometimes, involve a mutuality that is not a necessary feature of an acknowledgement. Some acknowledgements may be just that, some may also amount to contractual obligations, others may be such as to give rise to an estoppel. But outside the shaded areas of the Venn diagram, there are acknowledgements which toll the Statute only because that is what the Statute says, and as similar provisions have been interpreted in the English cases, the Statute does not envisage an acknowledgement as reviving an extinguished debt or title. These cases do not, accordingly, resolve the issue one way or another.

63. Nor can it be plausibly suggested that this interpretation of those provisions of the Statute providing for acknowledgement or part payment of a debt or payment of rent demonstrates a legislative policy that precludes the revival of an arguably extinguished title by estoppel or contract. In this regard I agree with Butler-Sloss LJ in Colchester when she suggested that the policy of fostering compromise raised wholly different considerations from those underlying the provisions of the Statute addressing payment of rent or acknowledgement of title. Indeed, long before the emergence of the theory of ‘contractual estoppel’ addressed in that case, Darby and Bosanquet qualified their assertion that an acknowledgement or subsequent payment of rent or interest could not revive the extinguished title of a mortgagee as against the mortgagor: ‘except insofar as such an acknowledgement, if made by deed, might operate as an estoppel’ (citing Hemming v. Blanton (1873) 42 LJPC 158, where comments to that effect were made by Keating J., at p. 160).

64. To this might be added the related but distinct consideration of certainty: the end point of the defendant’s argument in this case is that in any situation in which the possessor of land compromises a claim related to their occupation of that land confirming that they have no interest therein, they can thereafter assert in the teeth of that agreement that, actually, the title of their counterparty had been extinguished at the time the agreement was executed. That would cast a significant and wholly unnecessary shadow over legitimate settlement agreements of the kind in issue in this case.

65. The first limitation statute governing actions in tort and contract (there were earlier such provisions relating to land) was enacted in England in 1623 (21 Jac. 1 c. 16), and similar legislation was subsequently introduced in Ireland (10 Car. 1 sess 2 c. 6). From an early point in the development of the law (and at a time when the capacity of judges to interpret legislation to align with principles of the common law was significantly broader than that enabled by modern rules of statutory interpretation), it was decided that a failure to plead a limitation defence precluded reliance on the Statute (Thursby v.

Warren (1628) Cro Car 159). It was, however, not until 1833 that provisions expressly extinguishing title were introduced (Real Property Limitation Act 1833), and these were repeated in the Real Property Limitation Act 1874, when the relevant period was reduced from twenty years to twelve. There is no doubt but that these provisions were introduced in pursuit of a policy that there should be certainty in the title of those who have acquired property by adverse possession, and that titles should be quietened.

66. To convert that policy, however, into a basis on which a court will decline to enforce an otherwise effective contract requires specificity as to how, exactly, the contract undermines the certainty in title that the legislation seeks to achieve. The following summary of the law appears in Price v. Spoors, citing Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] 247 CLR 129 and states, also, the law in this jurisdiction:

‘It is the policy of the law that contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void.’

67. The argument of the defendant that it would be contrary to public policy ‘to allow a party to invoke an estoppel to assert a right in a manner that would disapply a law enacted by the Oireachtas’ starts from the proposition that a party cannot set up an estoppel in the face of a statute (see Kok Hoong v. Leong Cheong Kweng Mines Ltd. [1964] AC 993, 1015). An estoppel, he says, cannot be asserted in a manner that would ‘wholly frustrate’ or ‘repeal’ the statute (citing Actionstrength Ltd. v. International Glass Engineering SPA [2003] 2 AC 541 at paras. 26 and 52). The defendant argues that to allow an estoppel would ‘be contrary to those provisions of the 1957 Act which extinguish title’.

68. The language of s. 24 of the Statute is quite particular and is directed to the specific title of one and only one person: ‘at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished’ (emphasis added). Although the words ‘any person’ suggest the general, the term ‘that person’ leaves no doubt but that the section is concerned with an individual claim. The section thus refers not simply to a specific and defined period of time but to a limitation period imposed by other provisions of the Act, that has expired vis-à-vis a particular person. The same is true of the other sections providing for extinguishment: ss. 33 and 38. The question of whether that limitation period has expired as between a mortgagor and mortgagee (in this case, being the limitation imposed by s. 13) is determined in accordance with the principles I have considered earlier.

69. It must follow that in this respect, the essential point made in Price v. Spoor is correct4; it is only if the claim of the mortgagee against the mortgagor is barred that extinguishment occurs, and the claim is only barred if the range of conditions are met and if the mortgagor is in a position to invoke the limitation period under s. 13. Any other interpretation would result in the absurdity that a person could have their title The defendant did not make any point around slight differences in the language used in the Queensland provisions considered in Price v. Spoor and the Irish sections. The Australian provision referred to ‘the period of limitation prescribed by this Act within which a person may bring an action…’ while s. 24 of the 1957 Act provides ‘at the expiration of the period fixed by this Act for any person to bring an action…’. While some importance was attached in Price v. Spoor to the words ‘may bring an action’, given that it is firmly established that s. 13 bars the remedy and not the right, the effect of the two provisions must be the same. extinguished before the limitation period governing their claim for possession had expired. However, in order for that period to have expired, it is necessary for the mortgagor to have enjoyed ‘ordinary’ and uninterrupted possession for a period of twelve years, that the twelve years have run from a point defined by the mortgage as conferring a right to possession on the mortgagee and that the mortgagor has not paid principal, or interest, or otherwise acknowledged the mortgagee’s title during that period. It also means that the mortgagor has invoked the statute, and that they have not disabled themselves from so doing. Without all of these, the claim is not statute-barred under s. 13, and if it is not statute-barred under s. 13, the mortgagee’s title is not extinguished vis-à-vis the mortgagor under s. 24.

70. There is nothing in the Statute that expressly or by necessary implication prevents this, and there is no question of the enforcement of such an agreement rendering the statute nugatory. Indeed, the defendant’s argument – if correct – has a telling consequence. On the defendant’s own case (assuming his construction of the agreement is not accepted) had he entered into the very same agreement as he made with Mars the day before it appears that the limitation period may have expired, it would be entirely effective, but two days later it is not. He could, in other words, by his own actions in entering into an agreement with Mars prevent title from being extinguished the following day, but once that event had occurred, it was outside his power to reverse it. The public policy, on this view, is accordingly not one that prevents the mortgagee and mortgagor from entering into an agreement or otherwise conducting themselves so that the extinguishment of title that might otherwise occur, is avoided. It is one that applies only after the extinguishment is subsequently said to have actually taken place (and to that extent, the defendant suggests, the decision in Price v. Spoor raises a different question).

71. In this regard, the defendant placed some reliance on statements made in the course of the decision in O’Reilly v. Granville in support of his contention that the extinguishment provisions in the Statute of Limitations operated at a substantive and/or jurisdictional level and were thus incapable of being affected by dealings between mortgagor and mortgagee after the extinguishment of title. There, O’Dálaigh CJ (at p. 95) referred to a passage from Lightwood, The Time Limit on Actions (Butterworths 1909), which differentiated between provisions of the Limitation Acts that barred only the right of action leaving the substantive right intact (in respect of which the time bar had to be pleaded) and provisions which extinguished title (where it was said there was no necessity to plead the Statute of Limitations). The principal authority relied upon to that end (De Beauvoir v. Owen (1850) 5 Ex 177) was a case in which the person asserting that the right to collect rent had been extinguished was the plaintiff (it was an action for replevin following distraint of the plaintiff’s goods), and while certainly deciding that the Statute of Limitations did not in terms have to be pleaded, it was clear that the plaintiff had to make a plea in bar of non tenuit (denying title). Since the late nineteenth century, a defendant in an action to recover land on the title5 is exempted by

O. 21 r. 20 from the general and express obligation imposed by O. 19 r. 15 to plead all matters that show the action not to be maintainable, including the Statute of Limitations (Darby and Bosanquet at p. 493). Such a defendant enjoys the privilege of being entitled to plead possession alone without further particularisation (see Coppinger v.

It is, to say the least, questionable whether an application for possession pursuant to s. 62(7) of the 1964 Act is an action ‘on the title’. Norton [1902] 2 IR 232, 244). That privilege is a procedural one and was introduced to allow a defendant in such cases to withhold from the plaintiff the detail of his defence. Even if that interpretation of the Rule withstands modern tests of procedural fairness, a defendant in possession proceedings who claims that the plaintiff’s title is extinguished by reason of the Statute must still assert this, and the plaintiff remains fully entitled to contend that the defendant has disabled himself from making this case. As it happens the Court has made it clear quite recently that the mere fact that a barrier to the bringing of legal proceedings is jurisdictional does not in itself mean that considerations of estoppel or contract cannot preclude its invocation (see the comments of O’Donnell J. (as he then was) to that effect in Clarke v. O’Gorman [2014] IESC 72, [2014] 3 IR 340 at para. 42).

72. There are two related arguments of policy that it is suggested support this aspect of the defendant’s case. The first relates to the reason for the extinguishment provisions and the intent underlying those sections which was, clearly, to ‘quieten title’, to simplify the process of conveyancing, and to reduce the inquiries that had to be raised in that connection. The layering onto the Act of requirements that the possessor not have so acted after the expiry of the limitation period so as to preclude himself or herself from asserting that extinguishment would, it is thus suggested, be inconsistent with that intent.

73. There can be no doubt but that the reason for the introduction of s. 34 of the 1833 Act was to eliminate the uncertainty that arose from the fact that prior to then, lapse of time barred an owner’s remedies but did not transfer title. This had the consequence that prior to the enactment of the 1833 Act, conveyancing transactions were characterised by burdensome inquiries and difficulties with consequent delay (see the discussion in Beaulane Properties Ltd. v. Palmer [2005] EWHC 1071, [2005] 4 All ER 461). The root of the problem, Lord Browne Wilkinson explained in JA Pye (Oxford) Ltd. v. Graham [2002] UKHL 30, [2002] 3 All ER 865, 874, was the concept of ‘non-adverse possession’, which held that the rights of the paper owner were not taken away save by an ouster or use of the land by the squatter of a kind that was clearly inconsistent with the title of the paper owner.

74. Putting to one side the vexed question of whether the doctrine of non-adverse possession was in effect resurrected by the so-called rule in Leigh v. Jack (1879) 5 Ex D 264 (the status of which was reserved by this Court in Dunne v. Iarnród Éireann [2016] IESC 47, [2016] 3 IR 167) it reasonable to assume that the general intent was that having been in possession for the relevant statutory period, a squatter could confidently pass title to the property and, indeed, as Griffin J. pointed out in the course of his judgment in Perry v. Woodfarm Homes [1975] IR 104, 129 (“Perry”), there must be very few agricultural holdings in the State in which at some time since the enactment of the 1833 Act a tenancy was not ‘acquired’ in precisely this way.

75. I do not see that these considerations undermine the conclusion that follows from the literal construction of s. 24 and cognate provisions (which, it might be observed, have been framed in similar terms since 18336). Extinguishment is and always has been Section 34 provided that ‘at the determination of the period limited by this Act to any person for making an entry or distress, or for bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson for the recovery whereof such entry, distress, action or suit respectively might have been made or brought within such period, shall be extinguished’(emphasis added). triggered only when the claim of the paper owner is barred by an underlying limitation provision. I have noted earlier that it has long been acknowledged that an estoppel could arise to prevent reliance on provisions that would otherwise extinguish title. The development of doctrines of estoppel may have expanded the range of cases in which such a preclusion might arise so that a squatter may be prevented from relying on the Statute (and indeed, the particular position of a claim that a mortgagee’s title has been so extinguished may be more prone to such a claim than other cases). But the reality is that with or without the suggested resurrection of non-adverse possession, where reliance is placed by a squatter on possession for periods in and around the limitation period, a possessory title is unavoidably dependant on potentially contested factual questions arising from the duration and nature of their possession, asserted acknowledgements and the like. As time passes, the prospect of those cases in which the paper holder continues to have title notwithstanding being out of possession for the statutory period, progressively diminishes.

76. The second issue arises from the defendant’s suggestion that an agreement of the kind at issue in this case should not be enforced because extinguishment of title is not simply a matter as between the plaintiff and the defendant. He says that it operates vis-à-vis the whole world. While the expiry of the limitation period may well be a matter that is controlled by the actions of the mortgagor and mortgagee, once the limitation period has in fact expired, the rights of other parties intrude, and the defendant says that it is not open to the plaintiff and the defendant to reverse the rights of those parties by agreement between themselves. That argument, the defendant says, is supported by a careful analysis of Price v. Spoor. The decision in that case, he contends, was reached on the assumption that the extinguishment of title following expiry of the period within which a mortgagee could recover possession of mortgaged property operated only as between the parties to the mortgage and not vis-à-vis anyone else (and, indeed, Price v. Spoor was concerned with an agreement that pre-dated the expiry of any limitation period). He highlights the fact that in his judgment, Steward J. expressly so stated, citing the decision of the House of Lords in Fairweather as authority to that effect.

77. However, in Perry this Court declined to follow the decision of the House of Lords in Fairweather. This led to a debate in this appeal as to whether the fact that Perry rejected the reasoning of the majority of the House of Lords in Fairweather was fatal to Mars’ claim that the defendant could be estopped by an agreement entered into after the expiry of the limitation period from seeking an order for possession and, if so, whether Perry was wrongly decided and should now be overruled.

78. To understand both Fairweather and Perry (each of which was concerned with the rights of squatters on unregistered leasehold land) it is necessary to say something about the very particular situation that presents itself when a squatter extinguishes the title of a leaseholder. As between the squatter and the leaseholder, there is no doubt but that the effect of the Statute is to extinguish the leaseholder’s title, so that the leaseholder loses the right to possession of the property for the duration of the lease. Nor would there now appear to be any doubt but that the freeholder should not generally be prejudiced by the dispossession of the leaseholder by the squatter and is thus entitled to the benefit of any covenants contained in the lease and is entitled to enforce them against the land.

79. The difficulty is what, apart from this, happens to the lease and, specifically, to the various rights and obligations between leaseholder and landlord. That situation must be resolved having regard to s. 15(1) of the Statute, which provides that the right of action to recover any land which is the subject of future interests, in reversion or remainder, generally accrues on the date on which the interest falls into possession by the determination of the preceding estate or interest. While in the nineteenth century a theory held sway whereby the result of the relevant limitation provisions was to effect a statutory conveyance of the lease to the squatter so that the latter was bound by the covenants in the lease (Doe d. Jukes v. Summer (1845) 14 M & W 39), that view has long been disavowed in the case of unregistered land (Tichborne v. Weir (1892) 67 LT 735) (registered land falls to be addressed somewhat differently). The effect of adverse possession is to destroy the leaseholder’s title to the land, but it does not expressly vest that title in the squatter (the legislation, it has been observed, ‘is ominously silent as to the type of title acquired by the squatter’ (Una Woods ‘Adverse Possession of Unregistered Leasehold Land’ (2001) 36 Ir. Jur. 304)). Indeed, in Perry Henchy J. observed that the 1957 Act, like its predecessors, is silent as to what was acquired by the plaintiff.

80. Squaring all of these propositions creates a real dilemma where it is said that the lease has been surrendered (as happened in Fairweather) or merged with the freehold (as was said to have happened in Perry), or for that matter where it is said that there has been a forfeiture. In both Fairweather and Perry it was contended that the leaseholder’s interest became thereby vested in the owner of the fee simple, and that that owner was entitled to recover possession as against the squatter.

81. The truth is that any resolution of that question presents anomalies. If the freeholder is entitled to possession, it can only be because the leaseholder has in effect given to the freeholder something the leaseholder did not themselves have: the right to possession as against the squatter. There may be an intuitive resistance to the notion that the leaseholder can by his action of surrender or by enabling a merger, deliver to the person to whom he has surrendered a right that the leaseholder did not themselves enjoy or that the leaseholder and freeholder can collude to manufacture the right to eject a squatter which neither would of themselves enjoy. If the freeholder is not entitled to possession following a surrender, it means that the leaseholder continues to be liable on the covenants in the lease (including the covenants to pay rent) in respect of a property which the leaseholder has no right to possess. At the same time, the squatter has no obligation to pay rent – although it must follow that the landlord has a right of re-entry if the covenant to pay rent is breached. If, conversely, the lease is completely extinguished, then it follows from s. 15 that time has begun to run against the freeholder from the point at which this happened – and the freeholder may be unaware that this has occurred. Bearing all of this in mind, and viewing the language of the relevant provisions in context, it is difficult to disagree with the conclusion that ‘no interpretation of the provisions in their present format’ can achieve the aims of reconciling legislative intent, the wording of the sections in question, and the substantive law of property – including the law on adverse possession of registered land (Woods op. cit. at p. 304). Many of these difficulties arise because (as indeed Henchy

J. observed in Perry) the Oireachtas has not specified what, exactly, is understood by the concept of extinguishment. That insight is important in framing what, precisely, was decided in these cases.

82. In Fairweather, a majority of the House of Lords (Lord Radcliffe with whom Lord Guest agreed, and Lord Denning; Lord Morris dissenting) found that the effect of the extinction of title provisions in the Limitation Act then applicable in England was only to extinguish the lessee’s right to recover possession as against the squatter, but that the leasehold interest remained vested in him, so that he could surrender it to the landlord thereby enabling the landlord to obtain possession as against the squatter. Lord Morris dissented, reasoning that the lessee could not surrender to the landlord something the lessee did not himself possess – a right of action for possession of the land in question.

83. In Perry, this Court differed from the majority in Fairweather (Walsh and Griffin JJ; Henchy J. dissenting). A squatter having extinguished the title of a lessee of a strip of unregistered land behind his home, the lessee assigned the lease to the defendant which, shortly thereafter, acquired the fee simple to the property. The Court rejected the defendants’ claim to possession of the property: a person who has lost all title to a leasehold estate is not in a position to deal effectively with that estate and, therefore, has nothing to surrender and nothing to assign. The effect of the Statute, Walsh J. said, was to destroy the title of the person dispossessed to the estate from which he had been dispossessed, but it did not destroy the estate itself. While the squatter did not acquire the lease by assignment, and while the lessee remained liable on the covenants in the lease, the squatter could be indirectly forced to carry out the covenants to preserve his possession from ejectment by forfeiture for non-observance of the covenants. Griffin

J. said that what the squatter had gained was ‘the right to possession of the premises in dispute as against the defendants (as fee-simple owners) for the unexpired portion of the term of the lease subject to the risk and the possibility of forfeiture.’

84. The conclusion arrived at by Henchy J. in his dissent was based on the elimination of three of the four possibilities he saw the facts as presenting: (a) that the plaintiff was entitled to a leasehold interest (this had been firmly rejected in the cases), (b) that the plaintiff was entitled to the fee simple in the plot (for which not even the plaintiff contended), and (c) that the defendants were entitled to the fee simple subject to the right of possession of the squatter for the duration of the lease (this would vastly improve the position of the squatter against the freeholder, diminishing the rights of latter accordingly). That left only the final option – that the defendants had become entitled since the merger of the lease in the freehold to a right to recover possession of the plot.

85. Each of these decisions has given rise to criticism (as to Fairweather see Wade ‘Landlord, Tenant and Squatter’ (1962) 78 LQR 541, Wylie ‘Adverse Possession – An Ailing Concept’ (1965) 16 NILQ 467, and as to Perry, Wallace ‘Adverse Possession of Leaseholds – The Case for Reform’ (1975) 10 Ir. Jur. (ns) 74) and Woods op cit at pp. 307-308). In relation to Perry, the trade-off between the interests of all involved might seem controversial: the squatter acquires a precarious title, the dispossessed tenant remains liable to be sued on the covenants in the lease while the position of the freeholder is, as explained by Henchy J., significantly disimproved. The judgment of Walsh J. rejects the theory of parliamentary conveyance, but in the case of unregistered land the end result is a creature with many of its features. Indeed, the effect of the majority judgment in Perry appears to be that the title of the lessee is only partially extinguished, at least insofar as Walsh J. (at p. 119) felt that the effect of the Statute was ‘to destroy the title of the person dispossessed to the estate from which he had been dispossessed, but it does not destroy the estate itself’ (the distinction between ‘estate’ and ‘title’ for these purposes was described by Lord Denning in Fairweather (at p. 544) as ‘too fine a distinction’ while Lord Radcliffe (at p. 538) saw no difference between the lessee’s ‘estate, or right or title or interest’). Both decisions have been viewed as suggesting a different approach to the title acquired by a squatter over registered and unregistered land, a difficulty arising in this jurisdiction from the provisions of s. 49(3) of the 1964 Act which envisaged such a squatter being registered owner of the leasehold interest, thereby suggesting the theory of parliamentary conveyance rejected by all judges in Perry in respect of unregistered land.

86. That said, a consideration of the judgments in each case shows the strength of the arguments on either side of the debate, the case law makes it clear that in and of itself the fact that there is such a legitimate debate weighs heavily against overturning one of the Court’s own decisions (Mogul of Ireland v. Tipperary County Council [1976] IR 260; DPP (O’Grady) v. Hodgins [2024] IESC 36) and it is hard to my mind to see how this Court would now consider overruling an election settled on between those competing versions of the law, not least of all where it has stood without legislative intervention for fifty years. The only real solution to the dilemma arising in the case is the creation of either some form of parliamentary conveyance or, at least, further legislative clarification as to what is meant by ‘extinguishment’. The fact that this can only be achieved by the Oireachtas is in itself a reason for not overturning Perry (see O’Sullivan v. O’Driscoll [1988] IR 436, 449-450 per Henchy J.). However, I do not see it as necessary to even consider over-ruling the decision.

87. When Lord Radcliffe said in Fairweather that it was a false approach to the provisions of the Limitation Acts to regard ‘the extinguishment of title’ as extinguishing more than the title of the dispossessed against the dispossessor it is critical that he was concerned with the specific position of a leaseholder who had, admittedly, lost ‘title’ against a squatter. His view was based on two considerations. The first arose from the literal construction of the relevant sections, which meant that the right or title that had been extinguished was coterminous with the right of action that had been barred, and that was a right of action exclusively against the squatter. The second was purposive: if the title of the lessee were extinguished as against the landlord, then the landlord’s right to possession would accrue upon that extinguishment, with the consequence that the landlord would lose his rights twelve years after that event – even though he may have been a complete stranger to it. Moreover, any privity of estate between lessee and landlord would also disappear, depriving the landlord of the value of the covenants in the lease. Similarly, if the squatter were to abandon the property, he felt that it must be the case that it is the lessee, not the lessor, who would have the better claim to it – meaning that the estate has not been extinguished for all purposes. That the lessee’s estate, right, title and interest were indistinguishable, was central to that conclusion. The same is true of Lord Denning’s analysis, who similarly concluded that ‘title’ and ‘estate’ meant the same thing, and that the leaseholder’s ‘title’ remained good as against the freeholder.

88. Lord Morris differed not in the theory that what was lost was title vis-à-vis the squatter but instead what this, in practical terms, meant. He was of the view that the ‘title’ of a leaseholder referred to the right to possession of the land and that having lost that to the squatter, that same right of possession could not be assigned to anyone else (at p. 550-

551 citing the judgment of Channell J. in Walter v. Yalden [1902] 2 KB 304). He did not believe that the adverse possession of the squatter interfered with the rights otherwise given to the plaintiffs, which he characterised as ‘contractual obligations’ owed by the leaseholder towards the lessor (he also appears to have viewed ‘title, estate or interest’ as synonymous (p. 554)).

89. While the judgments of Walsh J. and of Griffin J. in Perry did seemingly distinguish between the destruction of title and that of the estate itself, the conclusion they reached was the same as that of Lord Morris; the leaseholder lost title in the sense of losing the right to possession and could not therefore transfer that right to anyone else. The lease continued to exist as against the owner in fee, and thus the leaseholder continued to be bound by the contractual obligations and encumbrance provided for in the lease (thus avoiding the conclusion that the landlord had lost either its right to resume possession at the conclusion of the term, or the benefit of the covenants in the lease).

The difference between the majority in Fairweather and the majority in Perry (and for that matter the minority in Fairweather) was thus not one of principle, but of effect. Everyone agreed that the ‘title’ of the leaseholder was extinguished against the squatter. Fairweather decided that this meant that the leaseholder had a ‘title’ derived from the lease which continued vis-à-vis the landlord and could thus return possession to him, while Perry decided that it meant that the leaseholder had lost possession and could not transfer that to anyone, while still having an interest in the lease that continued to subsist vis-à-vis the landlord.

What both cases show is that the rights and obligations entailed by the term ‘title’, while straightforward in the context of a fee simple interest, are not necessarily so in other situations, and that the effect of the extinguishment of that title on third parties must be analysed by reference to the substance of what has been lost and the context in which the divestment has occurred. In Perry, what had been lost was the right to possession for the remaining term of the lease, and the majority decided that having lost that, it could not be transferred to anyone else.

The Court’s conclusion that it could not be so transferred was to some extent based on a pragmatic choice between one of two equally difficult alternatives but legally amounted to no more than a deduction from what it was the leaseholder had itself been deprived of by the extinction. It did not necessarily follow from the fact that the leaseholder could not transfer the possession it had lost to the landlord or freeholder that the effect of s. 24 was to always extinguish the leaseholder’s title vis-à-vis anyone else. While there are statements in the majority judgments in Perry to the effect that the majority judgments in Fairweather assumed that s. 24 did not mean what it says, these should be understood as directed to the specific issue with which the Court was concerned, not as proposing a more general construction of s. 24 (which was considered by the Court without reference to the relationship it bore to provisions such as s. 13 in the light of the analysis in decisions such as O’Domhnaill v.

Merrick).

90. In this case Mars held a charge over registered land. It had no estate in the land (Northern Banking Co. Ltd. v. Devlin [1924] 1 IR 90). Accordingly, it had no right without statutory authority to enter onto the lands or maintain an action for ejectment (id. at p. 93). Instead, what it enjoys is the right to apply to the court pursuant to s. 62(7) of the 1964 Act for possession where the principal sum has become due in accordance with the provisions of the mortgage. There may well be an issue as to whether a person registered under the 1964 Act as the owner of a charge on registered land has ‘title’ to the lands as that term is conventionally understood. The question was not agitated by the parties in this appeal, presumably because even if Mars had no ‘title’ to extinguish, the effect of s. 38 of the Statute was to ‘extinguish’ the right to the principal sum and interest where the right to bring an action to recover the land or claiming sale thereof had expired. That said, s. 2 of the Statute makes it clear that proceedings under s. 62(7) of the 1964 Act are ‘an action to recover land’, and prima facie at least these accordingly fall within s. 24 of the Statute. Presumptively the legislation must be construed so that the registered charge holder can be viewed as having a ‘title’ of some kind that is capable of being extinguished for the purposes of the Statute. The fact that s. 33 refers to the extinction of the ‘title’ of a ‘mortgagee’ and that this includes reference to the registered owner of the charge, reinforces that

conclusion. That, as it happens, reflects the view adopted in Price v. Spoor where the interest of the mortgagee was described as ‘a form of “title” for the purposes of s. 24’ (Steward J. at para. 115). But while emphasising that no issue was raised in argument around this question, and as I have said, the point is academic, to the extent that the right of the mortgagee to recover their principal and interest is extinguished at the expiry of the relevant limitation period – although it bears emphasis that in this respect at least, there can be no doubt but that the extinguishment operates only vis-à-vis the mortgagor.

91. That being said I cannot see any basis on which it could be contended that it was the intent of s. 24 that the extinguishment of these entitlements, had it occurred, would have vested rights in any third party such as to render an agreement of the kind in issue here (i.e. a bona fide compromise of a genuine dispute between mortgagor and mortgagee) contrary to public policy. What Mars would have lost upon extinguishment were specific rights exercisable against the defendant, and what might have dispossessed Mars of those entitlements was a statutory provision the effect of which was to impose on Mars a detriment to the direct benefit of the defendant, and no one else. If, for example, subsequent charge holders proposed that they had obtained a priority on the extinguishment of Mars’ entitlements under its security, I can see no reason why the law would not tolerate the denial of that windfall by the agreement of Mars and the defendant, or for that matter by the actions or omissions of the defendant, provided that agreement was a bona fide compromise of a genuine dispute. Putting to one side the fact that such third parties will in this context be volunteers and will not have given any consideration for any alleged rights arising from the extinction of a prior charge holder’s title, any rights asserted as a consequence of extinguishment are dependent on the legislative scheme that provides for such extinguishment in the first place. That legislative scheme assumes that a defendant can invoke the Statute before extinguishment will be found to have taken place. Where the defendant has precluded itself from invoking the Statute, extinguishment cannot be so found to have occurred.

92. In conclusion, the rule that an estoppel cannot be set up in the teeth of a statute has an obvious justification: ‘it is incompatible with parliamentary democracy for the Courts, under the guise of estoppel or waiver or any other doctrine, to set aside the will of Parliament as constitutionally embodied in a statute’ (Re Green Dale Building Co. Ltd. [1977] IR 256, 264 per Henchy J.). As Keane J. noted in Re Greenore Trading Ltd. [1980] ILRM 94 (at p. 100), that principle is not directly applicable in a case ‘where the transaction in issue was not prohibited by law and its recognition or enforcement by the court would violate no principle of public policy or social policy.’ There is no reason here for concluding that the policy prompting those provisions of the Statute providing for an extinguishment of title would be undermined if it were possible for a mortgagor and mortgagee to enter into an agreement of the kind in issue in this case.

93. Three factors point strongly to such an agreement being enforced. First, s. 24 uses language that clearly relates extinguishment to the expiry of the limitation period operative between two specific persons, making it clear that extinguishment could be controlled by those parties alone. Second, the question of whether there has in fact been adverse possession will invariably be within the personal knowledge of the owner and squatter and may in fact never be known to third parties. The Oireachtas could scarcely have intended that third parties would have any role in extinguishment issues between owner and squatter. If that had been the intent, s. 24 would have been drafted differently. Specifically, the Oireachtas would not have in effect cast an impossible onus on third parties to establish facts which were known only to the owner and the squatter. As this Court indicated in Keane v. Irish Land Commission [1979] IR 321,

325 the Oireachtas must be presumed not to have created an impossible onus of proof. Third, there is a strong public policy favouring the compromise of disputes; enforcing such agreements not only promotes that objective, it also avoids the uncertainty that would attend any bona fide settlement between the paper owner of property and a person in possession in which the latter abandoned any claim that they had a possessory title.

94. This appeal should, accordingly, be dismissed. As to whether or not Mars’ claim to possession of the mortgaged property is statute-barred as alleged by the defendant, the effect of the Settlement Agreement entered into between the parties was not merely to acknowledge that Mars would proceed to seek possession thereof, but that the defendant had no claims, and/or was waiving any claims he did have, against Mars arising from the facilities. That included what was, on the defendant’s own case, not merely a defence but an affirmative extinction of Mars’ title by adverse possession. There is no reason in law or policy why such an agreement cannot be enforced, or the defendant cannot be precluded from resiling from the promise underpinning it simply because (as he contends but Mars did not accept) s. 24 operated to extinguish the plaintiff’s title. A contract compromising such a dispute – when entered into freely, willingly and with the benefit of appropriate advice, or the opportunity to obtain such advice – represents a lawful agreement on the part of the mortgagor not to enforce their rights under the Statute, to which full effect should be given.