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High noon
It’s two years since the Sheriff Review Group published its report into the role of sheriffs. David O’Keeffe says that its findings now need to be urgently addressed
In March 2024, the Department of Justice Sheriff Review Group published its much-anticipated report into the role of sheriffs, in particular in respect of debt-enforcement actions taken on behalf of the Revenue Commissioners.
The review group was tasked with examining the future role of sheriffs, with a view to establishing whether the nature of their role was in line with international best practice and to identify the extent to which debt collection in Ireland could be modernised.
Among its recommendations, the review group addressed the “unnecessarily confusing” variation in terminology used to enforce court orders to satisfy judgment debts in the District, Circuit and High Courts, and noted that “the procedures and processes, including time limits and the duration of court orders, vary between the different court levels”.
It identified that “there is considerable scope for modernisation of both terminology and procedures that would serve to simplify the law and to make it much more accessible and user friendly”, and urged an updating and streamlining of rules of court governing execution orders.
Head them off at the pass
The review group’s recommendation joins a long line of proposals for reform of the procedures for obtaining enforcement of court orders.
As far back as 1988, the Law Reform Commission’s Report on Debt Collection: The Law Relating to Sheriffs recommended an amendment to the Rules of the Superior Courts to harmonise the procedures for obtaining execution orders in the Circuit and High Courts.
In its 2009 Consultation Paper on Personal Debt Management and Debt Enforcement, the LRC again noted that “the procedural steps to be followed and documents to be prepared vary not only depending on the level of court involved and the different rules of court, but can also vary as between courts at the same level of jurisdiction depending on the practices of judges and court officials in the various courts”.
Despite these calls for reform, the system for enforcement of court orders by sheriffs has remained, to outsiders, a confusing mosaic.
In the High Court, under order 42 of the Rules of the Superior Courts, where judgment has been obtained in respect of a debt, the creditor can obtain an execution order against the debtor’s goods (an order of fieri facias) from the Central Office of the High Court.
There is no need for the creditor to go before a judge to obtain an order of fieri facias, so long as the creditor produces to the Central Office the judgment upon which the execution order is to be issued, certifies the sums due and owing, and files a praecipe setting out the record of the proceedings, the title, date of judgment and order, and the party against whom execution is to be ordered.
Order 36 of the Circuit Court Rules does away with the opaque Latin terminology and provides for a judgment creditor simply to request an ‘execution order’ directed to the sheriff.
In the District Court, much more straightforwardly, the judgment of the court itself will require the sheriff to take in execution of the goods of the debtor to satisfy the judgment debt.
Round up the posse
In its report, the review group notes that this variation in language is “unnecessarily confusing and lacking in transparency”.
In this regard, the review group echoes the earlier recommendation of the Civil Justice Review Group, chaired by former President of the High Court Peter Kelly, in its Report of the Review of the Administration of Civil Justice 2020.
In that report, the Civil Justice Review Group noted that “the need for simplification of procedures and the language in court rules and forms is recognised in submissions to the review group and in reforms in other jurisdictions directed at improving access to justice for litigants in person”.
This consideration is particularly important in the context of the enforcement of judgment debts, where Free Legal Advice Centres recognised in its 2003 report An End Based on Means? that “those in debt are likely, in most cases, to have little access to private solicitors, given the nature of their financial predicament”.
Evidently, an unrepresented litigant is less likely to be able to navigate and understand the complexities of the various execution orders that can be directed to sheriffs under the Superior Courts, Circuit Court and District Court Rules.
Reach for the sky
It is welcome that, on the same date as the review group report was published, an amendment to the Circuit Court Rules brought some increased consistency between the procedures for obtaining execution orders in the Circuit and High Courts, in respect of the time period within which an execution order could be obtained.
Prior to the making of the Circuit Court Rules (Order 36) 2024, a judgment of the Circuit Court would be in effect for a period of 12 years.
An execution order could be obtained within six years of the judgment, and the leave of the court was required in order to obtain execution after the expiry of six years. However, once a period of 12 years had expired since the date of the judgment, there was no possibility for a judgment creditor to obtain an execution order.
As the High Court confirmed in Pepper Finance Corporation (Ireland) DAC v Doyle: “Order 36 of the Circuit Court Rules precludes both the issuance of, and renewal of, an execution order after the expiration of 12 years from the date of the relevant decree or judgment.”
Fill your hand
The revised order 36 removes the 12-year outer limit on the execution of judgments. In this regard, the Circuit Court Rules have been brought into line with order 46, rule 24 of the Rules of the Superior Courts, which provides that execution of a judgment may issue within six years of the judgment or after that period by order of the court.
As confirmed in Start Mortgages DAC v Hendrick, there is no 12-year limitation period on issuing execution of a judgment in the High Court. This improved consistency between the Circuit Court and Superior Courts Rules is welcome and helps to ensure that the law on enforcement of judgments is transparent and predictable.
Save to this limited extent, however, in the year-and-a-half since the publication of the review group report, there has been no other move to reform the confusing variations between the rules of the various jurisdictions.
It is to be hoped that, following the second anniversary of the publication of the report, the repeated calls to improve the clarity of the law on enforcement of court judgments by sheriffs will be heeded.
David O’Keeffe is a partner in BHK Solicitors LLP, 1 Washington Street West, Cork.
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David O'Keeffe
David O’Keeffe is a partner in BHK Solicitors LLP, 1 Washington Street West, Cork.