Barrington v ACC Loan Management DAC
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 07 February 2018 |
| Neutral Citation | [2018] IECA 31 |
| Date | 07 February 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 31 [Appeal number 2017 227] |
AND
AND
[2018] IECA 31
Neutral Citation Number: [2018] IECA 31
[Appeal number 2017 227]
THE COURT OF APPEAL
CIVIL
Delay – Want of prosecution – Fair procedures – Appellants seeking to strike out proceedings by reason of inordinate and inexcusable delays – Whether appellants were significantly prejudiced by want of prosecution
Facts: The respondents, Mr Barrington, Ms Barrington and Eco Plastics Ltd, on 26th March, 2008, issued a plenary summons seeking damages for breach of agreements, misrepresentation, negligence, reckless infliction of financial loss, aggravated and/or exemplary damages, and specific performance of the obligations of the appellants, ACC Loan Management DAC and ACC Asset Finance, on foot of agreements dated 21st April, 2006 and 31st May, 2006 in addition to or in lieu of damages (including all consequential damages). On 30th April, 2008 an appearance was entered on behalf of all of the appellants. By the time the appellants came to issue a motion some eight years and three months later seeking to strike out the proceedings by reason inter alia of the inordinate and inexcusable delays, the respondents had not yet delivered a statement of claim. The High Court (Gilligan J), on 27th April, 2017, refused the appellants’ application seeking to dismiss the proceedings for want of prosecution. The appellants appealed to the Court of Appeal against that judgment and order asserting that the High Court judge erred in law in determining that the balance of justice favoured the respondents and further in failing to attach sufficient weight to the length of the delays.
Held by Whelan J that the appellants were significantly prejudiced by this want of prosecution of the proceedings on the part of the respondents. Whelan J held that in all the circumstances and having due regard to the constitutional principles of justice invoked by the appellants to be afforded fair procedures and a fair trial the balance of justice warranted that the proceedings be dismissed for want of prosecution.
Whelan J held that she would allow the appeal and dismiss the proceedings for want of prosecution.
Appeal allowed.
This is an appeal against the ex tempore judgment and order of Gilligan J. in the High Court made on 27th April, 2017 and perfected on 11th May, 2017 refusing the appellant's application seeking to dismiss the within proceedings for want of prosecution. The appellant relied on O. 36, r. 12 (b) and O. 122, r. 11 of the Rules of the Superior Courts and further invoked the inherent jurisdiction of the High Court to dismiss the proceedings on the basis of the impossibility of the appellant now obtaining a fair trial by reason of the lapse of time between the alleged events the subject matter of these proceedings and the time at which the case is likely to come to trial. The appellant also invoked the principle of the balance of justice asserting prejudice arising from the delays that had occurred. It was asserted that the delays arising breached the appellant's rights pursuant to common law and its constitutional entitlement to fair procedures and a fair trial. The appellant also invoked Article 6 of the European Convention on Human Rights.
The High Court judge was satisfied that the delays on the part of the respondents in prosecuting the within proceedings were both inordinate and inexcusable. However, he considered that the balance of justice favoured permitting the respondents to continue with the proceedings and accordingly he dismissed the application stating:
‘17. I note what the authorities say, and I respect them as regards the level of fault that can be attached to a defendant not actually taking any active part in the proceedings, but in this case the defendants are a major financial institution and they did have an association with De Lage Landen Ireland Company. So, there is a connection there and it had to be quite clear that at some stage in any event by inference from Mr Shaw's averments he must have been in contact because he obviously came to know that the case had been settled. So, effectively, he had to be conscious at the same time of the existence of these proceedings.
18. I am quite prepared to accept that this is a marginal case. One could adopt a view, perhaps, either way but I have to be satisfied on the balance of probabilities effectively with the claim that is made on the defendant's behalf that proceedings should be brought to an end and weighing both factors up, in my view the balance of justice favours the respondents, so they should be allowed to continue with the proceedings despite the inordinate and inexcusable delay.’
The appellants assert that the High Court judge erred in law in determining that the balance of justice favoured the plaintiff and further in failing to attach sufficient weight to the length of the delays which exceeded eight years in circumstances where no statement of claim had been delivered by the respondents prior to the issue by the appellant of the motion to dismiss.
On 26th March, 2008 the respondents issued a plenary summons. It sought damages for breach of agreements, misrepresentation, negligence, reckless infliction of financial loss, aggravated and/or exemplary damages. It also sought specific performance of the defendant's obligations on foot of agreements dated 21st April, 2006 and 31st May, 2006 in addition to or in lieu of damages (including all consequential damages).
On 30th April, 2008 an appearance was entered on behalf of all of the defendants. By the time the appellant came to issue a motion some eight years and three months later seeking to strike out the within proceedings by reason inter alia of the inordinate and inexcusable delays, the respondents had not yet delivered a statement of claim.
The appellant's motion to dismiss was issued on 19th July, 2016 approximately eight years and four months after the institution of the proceedings. The deponent on behalf of the appellant, Conor O'Donnell, Solicitor, deposed on 19th July, 2016 to the following matters:
(i) That the proceedings had not been progressed by the respondents in any respect since 18th September, 2008.
(ii) The continued delay on the part of the respondents in prosecuting the action was unfair and prejudicial to ACC.
(iii) That the litigation had been extant against the appellant for an inordinate period of time.
(iv) That the recollection of any witnesses would no doubt have diminished during that time.
(v) That ACC's capacity to properly defend the action had been seriously prejudiced by the conduct of the respondents.
(vi) That the appellant was unaware of any good reason for the inordinate and inexcusable delays.
The second named respondent in affidavits sworn on behalf of the respondents on 13th January 2017, 27th February 2017 and 21st March 2017 opposed the motion to strike out the proceedings in the manner and on the grounds hereinafter set out.
In her first affidavit of 13th January, 2017 Carmel Barrington recounts details of a recycling plant development project operated by the first and second respondents in 2004 and 2005. She recalls the occurrence of events around the proposed establishment of a washing plant for contaminated plastics. She outlines grievances arising from the respondents' course of dealings with the defendants and each of them and the contemplated restructuring of loans in a manner and on terms that did not ultimately transpire. Briefly stated, she asserts that due to the egregious acts of the appellant and the irreparable loss and damage occasioned by their actions, the respondents have been unable to fully and properly prosecute the proceedings and she stated she was at the time of swearing of the affidavit preparing a statement of claim.
In his replying affidavits sworn 6th February, 2017, 10th and 23d March 2017 Paul Shaw on behalf of the appellant sets forth reasons why ACC contended that the balance of justice favoured the dismissal of the within proceedings. The central grounds being relied upon were as follows:
(i) That the respondents disclosed no reasonable explanation for the delays in prosecuting the proceedings.
(ii) That there were no genuine or real reasons for the delays nor was any additional evidence made available by way of justification.
(iii) That the non-delivery of the statement of claim visited exceptional prejudice on the appellant as it deprived ACC of any specific details or particularised information concerning the claim.
(iv) That none of the personnel who worked on the respondents' file on behalf of the bank continue now to be in its employment. In particular, none of the bank's personnel named in Carmel Barrington's affidavit as being relevant persons involved in the connection continued in the appellant's employment.
(v) The bank anticipates that it will encounter difficulty in tracing the relevant personnel to enable them to prepare a defence or to be available for trial.
(vi) That it appears from Carmel Barrington's affidavits that a substantial aspect of the claim is based on alleged conversations held with the former employees of the bank rather than documentary evidence. This results in a significant risk of prejudice being suffered by the appellant in circumstances where such witnesses may not be available or contactable to assist in the preparation of the defence or to provide testimony at trial.
(vii) That the passage of time and sheer length of delay in delivering a statement of claim favoured dismissing the action.
(viii) Since the respondents'...
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