Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

This is a technical amendment in which I seek to address a particular issue raised in submissions to the Department. It was submitted the possibility existed that proceedings against the estate of a deceased person, which had been issued prior to the Dunne judgment but had not been determined and were adjourned with liberty to re-enter pending the outcome of the appeal of that case would not be saved under section 1(5) of the Bill if the proceedings must be reissued following enactment. This potential difficulty arises from the provisions of section 9(2) of the Civil Liability Act 1961, which states no proceedings shall be maintainable in respect of any course of action whatsoever that has survived against the estate of a deceased person unless either proceedings were commenced within the normal limitation period and were pending on the date of death or are commenced within the normal limitation period, or within two years after death, whichever period first expires.

This issue has been discussed extensively with the Office of the Attorney General and the conclusion is there is need to make provision in the Bill for this situation. Amendment No. 1 therefore inserts a new section into the Bill, which addresses the issues raised regarding estates of deceased persons. Subsection (1) provides that where a repossession proceeding is commenced after the coming into operation of the section this proceeding will be deemed to be within time for the purpose of section 9 of the Civil Liability Act 1961 where the conditions outlined in subsection (2) satisfied.

Subsection (2) outlines the conditions which would allow the proceedings to be considered to be within the time limit specified in the Civil Liability Act. These are that proceedings had been commenced prior to the commencement of the section; that the proceedings were initially commenced within the time period specified in the 1961 Act; that the proceedings were not determined; that the mortgage was created prior to 1 December 2009; and that the land in the proceedings under subsection (1) is the same land in the proceedings mentioned in the proposed subsection (2)(a). Only where all five of these conditions are met will a derogation under subsection (1) apply. I am providing pursuant to subsection (3) that this derogation from the time limits to the 1961 Act will only apply to proceedings issued within six months from the coming into operation of the section. Subsection (4) is a standard provision relating to certain definitions used in the section.