O'Carroll and Another v EBS Building Society and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 01 February 2013
• Neutral Citation: [2013] IEHC 30
• Docket Number: Record No. 19197P/2004
• Court: High Court
• Date: 01 February 2013

[2013] IEHC 30

THE HIGH COURT

Record No. 19197P/2004

O'Carroll & Hunt v EBS Building Society & Hall

Between:

ENDA PATRICK O'CARROLL AND TERESA HUNT

Plaintiffs

and

EBS BUILDING SOCIETY AND VINCENT HALL

Defendants

RSC O.122 r11

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PRACTICE AND PROCEDURE

Delay

DelaySecond defendant consenting to judgment - Subsequent death of second defendant - No action taken to prosecute case against first defendant for four years - First defendant seeking dismissal of plaintiffs' case - Whether delay in prosecuting case against first defendant - Whether delay inordinate - Whether delay excusable - Whether balance of justice requiring dismissal of proceedings - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied - Application refused (2004/19197P - O'Malley J - 1/2/2013) [2013] IEHC 30

O'Carroll v EBS Building Society

Facts: An order was sought dismissing the case of the plaintiff on the basis of inordinate and inexcusable delay. The plaintiff claimed that the second named defendant and auctioneer who was an agent for the first named defendant had been acting within the scope of his authority when he received a sum in 1998 intended to be lodged to an investment account. The second named defendant was now deceased. The first named defendant had denied that he acted as its agent. The plaintiff alleged that he had given her false documentation purporting to confirm that an account had been opened. Little had happened in the proceedings since 2007. The Court considered whether the delay was inordinate and inexcusable and whether a claim of prejudice was made out.

Held by O” Malley J. that there had been delay in the case and it had been inordinate. However, the delay was not excusable. The delay was attributable to a course of action taken which was not inexcusable. A claim that an earlier hearing would have enabled cross-examination of Mr. Hall was speculative. The relief sought would be refused.

1 Judgment of Ms. Justice Iseult O'Malley delivered on the 1st Feb 2013.

Introduction

2 1. This is an application by the first named defendant for an order pursuant to Order 122 rule 11 of the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of the court dismissing the plaintiffs' case on the grounds of inordinate and inexcusable delay in the commencement and/or prosecution of the proceedings.

3 2. The plaintiffs are the personal representatives of a lady, referred to variously as Teresa Lambiotte or Teresa Lambiotte Costello, who died on the 6 ^th March in the year 2000. The first named plaintiff ("Mr. O'Carroll") is the principal in the firm of Wells & O'Carroll, Solicitors in Carrickmacross, County Monaghan. A grant of Probate was issued to the plaintiffs on the 18 ^th January, 2002.

4 3. The second named defendant ("Mr. Hall") was at the relevant time an auctioneer. He was also an agent for the first named defendant ("EBS") in the town of Castleblaney. In that capacity he was licensed to take deposits on behalf of EBS.

5 4. At the time of her death the late Ms. Lambiotte Costello lived in France. However she seems to have maintained links with County Monaghan.

6 5. The plaintiff's case is that in late 1998 Mr. Hall received from Ms. Lambiotte Costello the sum of £IR100,000 which was intended to be lodged in a particular type of investment account in EBS. According to the plaintiffs Mr. Hall gave her false documentation purporting to confirm that the account had been opened but in fact paid the money into his own account and subsequently dissipated it.

7 6. When the matter was inquired into by the executors, Mr. Hall's account was that he had, with the consent of Ms. Lambiotte Costello, given the money to a named man in Northern Ireland. This man, according to Mr. Hall, was in a position to obtain a higher rate of return than that offered by EBS. Mr. Hall accepted his own responsibility to the extent of offering to return the money to the estate out of his own resources. According to a letter from its solicitor to Mr. O'Carroll, EBS accepted the veracity of this account and therefore takes the view that the transaction had nothing to do with its relationship with Mr. Hall.

8 7. In these proceedings the plaintiffs claim that Mr. Hall was acting within the scope of his ostensible authority as agent for the EBS. The EBS denies that he acted as its agent in respect of the matter. It is specifically pleaded that the deceased Ms. Lambiotte Costello was fully aware that Mr. Hall was acting on her behalf without reference to his agency on behalf of EBS and that any document issued by him was a sham. It is said that any claim she might have had was against him alone.

The state of the evidence in the substantive case

9 8. Acting as Ms. Lambiotte Costello's representative, Mr. O'Carroll found two documents among her papers. The first is a hand-written letter dated the 2 ^nd December, 1998 from Mr. Hall to Ms. Lambiotte Costello. It is on EBS headed paper and states as follows:

10 We acknowledge receipt of cheque value £38,000 as part investment into guarantee account. When the balance is cleared, we will issue you with formal documentation.

11 9. The second is a printed EBS form headed "SureGrowth Investment Confirmation". It is addressed to Ms T. Lambiotte Costello at her French address. The various headings are filled in as follows:

12 Issue Date: 1 ^st Day of Dec. 1998

13 Account Number: 86012606

14 Branch Issued: Castleblaney

15 We certify details of your £100,000. Investment

16 Start Date 1 ^st Day of February 1999

17 Term Two years.

18 Maturity Date 1 ^st Day of February 2001

19 (Or Next Banking Day)

20 Principal ONE HUNDRED THOUSAND POUNDS

21 Gross Return

22 Gross Maturity Amount Net return of 5.5% payable quarterly.

23 (Inclusive of Interest)

24 10. Beside the last three headings there is in hand-writing the date 1/5/99 and "£1,374.99 per quarter".

25 11. The document concludes with the words "Issued on behalf of the Society" and is signed by Mr. Hall. It is date-stamped the 12 ^th February 1999 with the stamp of EBS Building Society Castleblaney.

26 12. It can be proved that the number 86012606 related to Mr. Hall's own personal account with EBS, which for some reason was operated under the name William, rather than Vincent, Hall. On the 1 ^st December, 1998 a lodgment of £38,000 was made into this account. According to the plaintiffs the lodgement was a bank draft purchased by Ms. Lambiotte Costello in her own favour which was lodged for the credit of EBS through the AIB in Castleblayney.

27 13. On the 5 ^th February, 1999 the sum of £22,500 was lodged in Mr. Hall's account. Mr. O'Carroll says that he can establish that this came from Ms. Lambiotte Costello's ICS Building Society account.

28 14. The Plaintiffs cannot show where the balance of the £100,000 referred to in the document came from. However there were two lodgments to Mr. Hall's account, in October and November 1998, of £20,000 and £19,500 respectively. These sums, if added to the earlier ones, make up a total of £100,000.

29 15. Examination of Ms Lambiotte Costello's account in the Bank of Ireland, Carrickmacross shows a payment into her savings account on the 18 ^th February of £710. This is recorded as being from "EBS". On the 30 ^th April 1999 there is a lodgment of £1,375. On the 6 ^th August, 1999 there is a lodgment of £1,375. This is attributed in the bank statement to "ESB" but the plaintiffs invite the court to draw the obvious conclusion.

30 16. It will be noted that these payments correspond closely with the figures set out in the "SureGrowth" document. In its affidavit of discovery, EBS says that it cannot now say what interest was applicable to its "SureGrowth" product at the time.

31 17. In his affidavit Mr. O'Carroll avers that he interviewed Mr. Hall on the 5 ^th June, 2002 and sets out the latter's version of events. This is admissible in these proceedings, obviously, only for the purpose of proving what was said and not the truth thereof.

32 18. According to Mr O'Carroll, Mr. Hall said that he told Ms. Lambiotte Costello that he could get her a better rate of interest in Northern Ireland than the 5.5% offered by EBS. She was agreeable to this so he took the money and gave it to a man who was a well-known criminal in Northern Ireland. He claimed that he did not tell her the identity of the man in question but paid the interest into her account every three months. He gave Mr. O'Carroll the name of the man involved. Mr. O'Carroll asserts, without contradiction from the EBS, that this man a) was a well-known drug-trafficker and b) was murdered in 1997, before the occurrence of any of the events under consideration in these proceedings.

33 19. Subsequently Mr. Hall met with representatives of EBS and gave them a similar account. They say that they are satisfied that his dealings with Ms. Lambiotte Costello were, to her knowledge, not related to EBS.

34 20...