Allied Irish Banks Plc v Guerin

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Irvine
Judgment Date12 Jun 2018
Neutral Citation[2018] IECA 167
Docket NumberNeutral Citation Number: [2018] IECA 167

[2018] IECA 167

THE COURT OF APPEAL

Irvine J.

Peart J.

Irvine J.

Whelan J.

Neutral Citation Number: [2018] IECA 167

Record No. 2017/134

BETWEEN
ALLIED IRISH BANKS PLC
PLAINTIFF/RESPONDENT
- AND -
JAMES GUERIN
DEFENDANT/APPELLANT

Want of prosecution – Inordinate and inexcusable delay – Discretion – Appellant seeking dismissal of proceedings – Whether High Court judge erred in the manner in which he exercised his discretion

Facts: The appellant, Mr Guerin, appealed to the Court of Appeal against the order of the High Court (Eager J) of the 13th March 2017. By his order, the High Court judge refused to dismiss the proceedings for want of prosecution and/or on the basis that the respondent, Allied Irish Banks, had been guilty of inordinate and inexcusable delay in the manner of its conduct of the proceedings. Mr Guerin submitted that the High Court judge erred in the manner in which he exercised his discretion and erred in law when considering the issue of the balance of justice.

Held by Irvine J that the High Court judge properly exercised his discretion in all of the circumstances of this case.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 12th day of June 2018
1

This is Mr. Guerin's appeal against the order of the High Court, Eager J., of the 13th March 2017. By his order, the High Court judge refused to dismiss the within proceedings for want of prosecution and/or on the basis that the respondent, Allied Irish Banks (‘The Bank’), had been guilty of inordinate and inexcusable delay in the manner of its conduct of the proceedings.

2

The following is the chronology of relevant events which was before the High Court judge when he made his decision:-

25 April 2007: Summary summons issued claiming recovery of a liquidated sum.

8 May 2007: Summary summons was served.

22 June 2007: Appearance.

20 July 2007: Motion for liberty to enter final judgment issued.

18 September 2007: Motion for judgment served.

Early 2008: Settlement negotiations.

30 April 2008: Settlement agreement reached and motion for judgment adjourned generally with liberty to re-enter on consent.

5 May 2009: Defendant failed to comply with settlement agreement and motion re-entered.

30 July 2009: New return date for motion for liberty to enter final judgment

16 April 2010: Defendant filed first replying affidavit.

29 April 2010: Transferred to plenary hearing with 4 weeks statement of claim and 4 weeks for Defence, on consent.

25 May 2010: Statement of claim delivered.

1 December 2010: Defence delivered.

2011: Considerable correspondence between the solicitors regarding Defendant's request for discovery.

1 February 2012: Plaintiff's notice for particulars.

April 2012: Defendant's solicitors refused to reply to notice for particulars.

26 June 2012: Notice of intention to proceed.

26 July 2012: Notice of motion seeking replies to particulars issued.

19 November 2012: Return date for motion for particulars. Defendant consented to reply by the 10 December 2012.

10 January 2013: Defendant's replies to particulars were delivered.

2013, 2014 & 2015: Solicitors for plaintiff wound up and failed to pass on file to new solicitors.

4 February 2016: Motion to dismiss issued.

22 February 2016: Return date for motion to dismiss. Adjourned by consent.

2 March 2016: Affidavit served by plaintiff.

25 April 2016: Transferred to Non Jury list by consent.

27 April 2016: Motion struck out due to defendant's failure to attend

4 May 2016: Defendant ex parte has motion reinstated and listed for hearing without any notice given to the plaintiff. Not clear whether it was represented to the court that this was on consent or on notice, but it was neither.

10 May 2016: Notice of intention to proceed.

3 November 2016: Motion to dismiss struck out for a second time due to failure of defendant to call it on.

7 November 2016: Plaintiff received a booklet of pleadings from defendant - no explanation.

8 November 2016: Defendant sent two affidavits to plaintiff - No explanation.

9 November 2016: Plaintiff served a notice of trial and a notice to produce.

9 November 2016: Defendant enquired whether Plaintiff was in a position to defend the within motion the following day.

9 November 2016: Plaintiff ascertained from www.courts.ie that the motion had been reinstated and listed for hearing.

10 November 2016: Defendant applied to have the motion reinstated and listed for hearing and plaintiff objected.

Motion was reinstated and listed for mention on 30 November.

Liberty to plaintiff to file affidavit setting out conduct of Defendant.

Liberty to defendant to file two further affidavits served earlier that week.

11 November 2016: Two affidavits filed by defendant.

23 November 2016: Further affidavit filed by defendant, without liberty applied for or granted.

30 November 2016: Motion to dismiss listed for hearing on the 6th March 2017 on consent.

14 December 2016: Action listed for hearing on 3rd October 2017 on consent.

3

As is apparent from the aforementioned chronology, on the 30th April 2008 the parties entered into a settlement agreement pursuant to which the proceedings were adjourned generally with liberty to re-enter. Due to an alleged failure on the part of Mr. Guerin to comply with the terms of the agreement the bank successfully applied to re-instate the proceedings which were later referred to plenary hearing in April 2010.

4

In 2011 there was significant correspondence concerning discovery. Thereafter, particulars were sought by the bank in February 2012. When replies were not forthcoming three reminder letters were sent by the bank's solicitors, Thomas Flaherty & Company. In June 2012 the bank issued a notice of intention to proceed and one month later served a motion seeking an order of the court directing Mr. Guerin to reply to its notice for particulars. These particulars were ultimately delivered in January 2013.

5

It is readily accepted by the bank that it took no steps to advance the proceedings between January 2013 and February 2016, at which stage Mr. Guerin served his motion to have the proceedings dismissed for want of prosecution and/or on the grounds of inordinate and inexcusable delay. The reason provided for this inaction is that the bank's solicitor, Mr. Thomas Flaherty, was winding down his practice and the bank did not realise that the proceedings were not being progressed. Quite properly, in my view, the bank has at all times accepted that it is culpable in respect of this period of culpable delay on the part of its servant or agent.

6

Mr. Guerin's application to dismiss the bank's proceedings was not heard until the 6th March 2017. This was due, inter alia, to the fact that the application was twice struck out for non-attendance on the part of Mr. Guerin's legal advisers over an eight month period.

Judgment of the High Court Judge
7

In his judgment, the High Court judge did not accept the submission made by Mr. Guerin that the bank was guilty of any culpable delay prior to the 10th January 2013 in circumstances where there had been significant correspondence inter parties concerning particulars and discovery during the period the 1st December 2010 to the 1st February 2012. He nonetheless found the bank guilty of inordinate and inexcusable delay from the 10th January 2013, that being the date upon which Mr. Guerin replied to the bank's letter seeking particulars, until the 4th February 2016 when he issued his motion to dismiss the proceedings.

8

Having concluded that the bank was guilty of inordinate and inexcusable delay the High Court judge proceeded to consider where the balance of justice lay having regard to all of the circumstances of the case and the principles routinely deployed on such an application. In this regard he relied upon many of the most often cited authorities including Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Anglo Irish Beef Processors Limited & Ors. v. Montgomery & Ors. [2002] 3 I.R. 510 and Millerick v. The Minister for Finance [2016] IECA 206.

9

In reaching his conclusion that, having regard to the balance of justice, the proceedings should not be dismissed, the High Court judge considered, insofar as relevant to the facts of the present case, the factors advised by Hamilton C. J. at para 475 of his judgment in Primor. In looking at the conduct of the parties the trial judge had regard to the significant delay that had been caused by Mr. Guerin's failure to meet time limits prescribed by the rules of the court, and in particular his delay in filing a replying affidavit to the summary summons and in replying to the bank's letter seeking particulars. He also had regard to the delay occasioned by his failure to comply with the terms of settlement that had been agreed in 2008. He also relied upon the conduct of Mr. Guerin and his advisors in relation to his motion to dismiss the proceedings on the grounds of inordinate and inexcusable delay. Likewise, the High Court judge had regard to the delay on the part of the bank caused by its inactivity between January 2013 and February 2016.

10

The High Court judge also considered in detail the prejudice asserted by Mr. Guerin to arise from the bank's delay. He rejected his assertion that the proceedings could have adversely affected his credit rating and reputation. He referred to the bank's uncontroverted evidence that it had never reported the existence of the within proceedings to any third party. The High Court judge further had regard to the bank's evidence concerning a report to the effect that Mr. Guerin and his wife had consented to a judgment in favour of ACC for a sum of approximately €2.5m in 2010 and that five judgment mortgages had been registered against their properties. If Mr. Guerin's credit rating had been interfered with, he considered it more likely to have been the result of the aforementioned matters...

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