Allied Irish Bank Public Ltd Company v Boyle & Ano

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 28 July 2020
• Neutral Citation: [2020] IEHC 377
• Docket Number: [No. 2010/938 S.]
• Court: High Court
• Date: 28 July 2020

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

HARRY BOYLE

AND

MARGARET BOYLE

DEFENDANTS

AND

FINOLA K. CRONIN, DANIEL J. MORRISSY, EDEL MORRISSY, GERARD J. O'CONNOR PRACTISING UNDER THE STYLE AND TITLE OF DOBBYN AND MCCOY

THIRD PARTY

[2020] IEHC 377

Heslin

[No. 2010/938 S.]

THE HIGH COURT

JUDGMENT of Mr. Justice Heslin delivered this the 28th day of July, 2020

Introduction

1 These proceedings come before the court in circumstances where the third party has brought a motion to dismiss, as against the defendants and the defendants have brought a similar motion as against the plaintiff. The Third Party's motion was issued on 5th February 2020, whereas the Defendant's motion was issued on 6th May 2020. Similar relief is sought in both motions, in particular, orders are sought to strike out the respective claims on the grounds of inordinate and inexcusable delay and on the grounds of want of prosecution.

2 It was agreed that the third party's motion would be opened first. The third party's motion, dated 5th February 2020 is grounded on an affidavit sworn by Mr. Seamus Tunney, solicitor for the third party, dated 4th February 2020.

Affidavit of Mr. Tunney, solicitor for the Third Party, sworn 4th February, 2020

3 In this affidavit, Mr. Tunney of Messrs. J.A. Shaw & Company, solicitors for the Third Party, avers, inter alia, that a guarantee dated 13th February 2008 was entered between the plaintiff and the defendants in respect of the liabilities of a company entitled Mint Properties Limited (hereinafter “MPL”), being a guarantee up to the sum of up to €1.5m. Helpfully, the court was furnished with a paginated book containing a copy of both motions as well as all affidavits and exhibits in respect of same. For ease of reference, I propose to quote page numbers from that book of motion papers (hereinafter the “book”) when referring to extracts from relevant affidavits or exhibits and where they can be found.

The history of the Third Party Proceedings

4 The history of the third party proceedings is set out in para. 5 of Mr. Tunney's affidavit on page 5 of the book. In paras. 5 and 6 of Mr. Tunney's affidavit grounding the third party's motion, he makes the following averments: -

“5. I say that the relevant history of the third party proceedings is as follows:

• Summary summons issued on the 26th of February, 2010.

• Statement of claim delivered on the 31st of March, 2011.

• Order of the High Court granting the defendants liberty to issue and serve a Third Party Notice on the 9th day of July, 2012.

• Memorandum of appearance to the Third Party Notice dated 9th day of January, 2013.

• Third party statement of claim dated the 15th day of May, 2013.

• Notice for particulars arising from the statement of claim dated 8th of January, 2016.

• Third Party Defence dated the 8th day of January, 2016.

• Reply to particulars served by letter dated 24th day of August, 2016.

• Third party affidavit of discovery sworn on the 10th day of July, 2017.

• Notice of Intention to Proceed by defendants dated the 6th day of June, 2019.

6. I say that since the 10th day of July, 2017 the defendants has [sic] taken no step in the third party proceedings (other than file a Notice of Intention to Proceed on the 6th day of June, 2019) nor have they made no [sic] attempt to bring the claim herein to finality or prosecute that third party issue and in these circumstances the defendants are guilty of inordinate and inexcusable delay.”

5 As can be seen from the foregoing, the Defendants’ claim against the Third party commenced in July 2012 when the court granted liberty to issue a Third Party Notice, by Order of 9th July 2012, and it is not in dispute that a Third Party Notice issued immediately thereafter, dated 12th July 2012. It is also a matter of fact that, apart from the Defendant's Notice of Intention to Proceed, the last pleading in relation to the Defendants’ claim against the Third Party comprises the Third Party's Affidavit of Discovery sworn on 10th July 2017. Thus, the period of time, during which the Defendants’ claim against the Third Party was pleaded, is one of precisely 5 years, bookended by the dates July 2012 and July 2017. This was followed by a period of delay on the part of the Defendants which at the heart of this application. Later in this judgment, I will look at the question of delays which occurred during the aforesaid 5 year period which ended with the delivery by the Third Party of their affidavit of discovery.

6 Returning to Mr. Tunney's affidavit, in paragraphs 6 to 8 he avers, inter alia, that “…no serious attempt has been made by either the plaintiff or the defendants to bring these proceedings to finality” since the proceedings were initiated in 2010 in respect of the 2008 guarantee. Mr. Tunney avers that no step has been taken by the defendants, in respect of the third party proceedings, since 10th July 2017, when discovery was finalised, other than to serve a notice of intention to proceed which was issued by the defendants on 6th June 2019. Mr. Tunney goes on to aver that the defendants are guilty of inordinate and inexcusable delay and want of prosecution. He avers, inter alia, that the delay “…is prejudicial to the defence of the third party issue and with the passage of time there are concerns about the availability of witnesses and what they remember of a guarantee executed in 2008”, being an averment in para. 9. At para. 10 it is averred that the ongoing third party proceedings and allegations contained therein have created difficulties for the Defendant in obtaining professional indemnity insurance and at para. 11 Mr. Tunney prays for the relief sought in the motion.

Replying affidavit of Mr. Patrick Kelly sworn 29th April, 2020.

7 The Defendants’ solicitor Mr. Patrick Kelly, of Messrs. McKeever Rowan, swore a replying affidavit on 29th April 2020. A copy of same appears in the Book from p.8 onwards. In para. 4, reference is made to the Defendants being elderly and suffering from medical issues. It is appropriate to quote para. 4 verbatim which I do as follows:

“4. I say that the defendants in the within proceedings are both elderly, the first named defendant being in his 80's and the second named defendant being in her 80th year and I say and believe that they both suffer from respective medical issues. In particular, in this regard, I say and believe that the first named defendant attends a cardiologist and that he suffers from high blood pressure and from arthritis. Additionally, I say and believe that the second named defendant suffers from anxiety arising as a result of the within proceedings and the possible consequences of same and also as a result of the recent and untimely of the defendants’ daughter. Furthermore, I say and believe that the second named defendant also suffers from cardiovascular problems.”

8 The foregoing facts are not in dispute. In para. 5, reference is made by Mr. Kelly to the fact that the Plaintiff's proceedings were commenced by way of a summary summons dated 26th February 2010 and it is averred that the plaintiff bank is claiming €1.5m as against the defendants, which claim is based on a guarantee dated 13th February 2008 “allegedly” signed by the defendants. During submissions, counsel for the Defendants clarified that it is accepted that the defendants did, in fact, sign the guarantee in question although it is emphasised that the Defendants deny any liability under the guarantee, in the manner pleaded in the proceedings.

9 Reference is made, in para. 6, to a notice of change of solicitors which was entered by Mr. Kelly's office on 4th June 2010, the Defendants having been previously represented by another solicitor. Mr. Kelly also makes averments in relation to the pleadings exchanged thereafter including the Plaintiff's statement of claim of 31st March 2011 and a Defence and Counterclaim which was delivered on 23rd April 2012 on behalf of the defendants.

10 In para. 7 on p. 9 of the book, Mr. Kelly refers to a chronology in respect of the timeline of the proceedings as between the defendants and the third party. This is consistent with that referred to by Mr Tunney but, in circumstances where it is somewhat more detailed, its contents can be summarised as follows:

• 12th July 2012 - Third Party Notice;

• 9th January 2013 – Appearance by Third Party;

• 15th May 2013 – Third Party Statement of Claim;

• 9th July 2015 – Defendants’ Notice of Intention to Proceed;

• 24th November 2015 – Defendants’ Motion for Judgment in Default of Defence;

• 14th December 2015 – Order extending time for delivery of Defence;

• 8th January 2016 – Third Party Defence;

• 8th January 2016 – Third Party Notice for Particulars;

• 24th August 2016 – Reply by Defendants to Third Party Notice for Particulars;

• 20th March 2017 – Defendants’ request for voluntary discovery by Third Party;

• 25th July 2017 – Third Party Affidavit of Discovery furnished;

• 6th June 2019 – Notice of Intention to Proceed issued by Defendants.

Delay by the Defendants in the conduct of the proceedings prior to July 2017

11 Even though the Third Party's motion is brought in light of the Defendants’ delay from July 2017 onwards, I am satisfied that it is appropriate for this court to also look at the manner the claim was progressed from its inception. It is clear from the evidence before this Court that there was very considerable delay in relation to the progress of the Defendants’ claim against the Third Party, even before July 2017. By way of example, the Defendants delivered a Statement of Claim dated 15th May 2013, following which the Defendants took no further step for almost two years and two months, the next step taken being to serve a Notice of Intention to Proceed dated 9th July 2015. The Third Party plainly did not deliver a Defence with anything like sufficient speed and the “ball” was certainly in the Third Party's “court”, insofar as an...