The Personal Insolvency Act 2012 was enacted with the aim of throwing a lifeline to debtors, many of whom may be in arrears on mortgage loans secured against their principal private residence.

On 9 May 2019 the Supreme Court handed down the seminal judgment of ACC Loan Management Limited DAC v Mark Rickard and Gerard Rickard, which provides clarity on the question of when a receiver can be appointed by equitable execution.

Background

The Supreme Court has just delivered a judgment confirming the entitlement of a judgment debtor to appoint a receiver by way of equitable execution.

The comprehensive judgment is a useful history lesson in the development and expansion of the right to appoint a receiver by way of equitable execution which derives from the old Judicator (Ireland) Act, 1877.

Background

Judgment was obtained by a bank in February 2011 against two borrowers in the amount of €1,064,747.

The recent publication of the Courts Service Annual Report 2018 highlighted on-going economic and societal changes by way of hard data. In his Foreword to the Report, Chief Justice Frank Clarke references our digital age, noting that “people are used to round-the-clock online access to services”. He adds that the courts “must deal with the twin challenge of facilitating such access while at the same time ensuring that the court process is secure and that cases are allocated the time and consideration they require”.

The Land and Conveyancing Law Reform (Amendment) Act 2019 (the “Act”) introduces a list of factors that must be taken into consideration by the Court before an order for possession can be granted or refused. The Act builds upon the protections given to borrowers under the Personal Insolvency legislation, which allows the Court to adjourn proceedings to facilitate a borrower getting a proposal together for a Personal Insolvency Arrangement (“PIA”).

Bankruptcy law has always sought to strike a balance between the rights of creditors and debtors. In Ireland, bankruptcy and personal insolvency law has incurred seismic change over the past decade. Many of the legislative changes have been implemented from a policy basis of assisting the debtor. We look at recent developments, from the point of view of the petitioning creditor in any bankruptcy.

Automatic discharge from bankruptcy

The default setting for the hearing of many contested debt recovery and security enforcement cases is by way of affidavit evidence, particularly in the High Court[1]. The creditor swears an affidavit setting out the reasons why it maintains the court should rule in its favour. Certain documents can be presented as exhibits that back up its case such as a contract.

On 29 October 2018, HM Treasury published a consultation paper on a breathing space scheme and a statutory debt repayment plan, which were both part of the government’s 2017 manifesto commitments.

Following on from her decision of late last year in Re Darren Reilly & the Personal Insolvency Acts 2012 to 2015 [2017] IEHC 558 (further details of which can be found here), Ms.

Litigation & Dispute Resolution