Cave Projects Ltd v Gilhooley

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 20 January 2021
• Neutral Citation: [2021] IEHC 181
• Date: 20 January 2021
• Docket Number: [2011 No. 740 S]
• Court: High Court

BETWEEN

CAVE PROJECTS LIMITED

PLAINTIFF

AND

PETER GILHOOLEY, JOHN KELLY, JOHN MORONEY, RORY O'BRIEN

AND

JOSEPH O'HARA

DEFENDANTS

[2021] IEHC 181

Meenan

[2011 No. 740 S]

THE HIGH COURT

Want of prosecution – Delay – Balance of justice – Second defendant seeking to strike out the proceedings against him – Whether the delay in prosecuting the proceedings was inordinate and inexcusable

Facts: The second defendant, Mr Kelly, applied to the High Court seeking to strike out the proceedings against him for want of prosecution and/or delay. The proceedings concerned a claim for the recovery of a debt of €11,785,543.11 against the second defendant and the fifth defendant, Mr O’Hara. The claim was compromised as against the first, third and fourth defendants, Mr Gilhooley, Mr Moroney and Mr O’Brien. The summary summons was issued by the then plaintiff, the Governor and Company of the Bank of Ireland, on 24 February 2011. Subsequently NALM acquired the loan, the subject matter of the proceedings, from the then plaintiff. In or about January, 2013, the plaintiff, Cave Projects Ltd, purchased the said loan. The plaintiff alleged that the loan became repayable on 31 January 2008.

Held by Meenan J that the delay in prosecuting the proceedings was inordinate but was either excusable or acquiesced in by the second defendant. Meenan J concluded that the second defendant was untruthful in his affidavit grounding this application. Meenan J held that the balance of justice could not lie in favour of granting the reliefs sought.

Meenan J refused the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Meenan delivered on the 20th day of January, 2021

Background

1 This is an application by the second named defendant to strike out the proceedings against him for want of prosecution and/or delay. The proceedings concern a claim for the recovery of a debt of €11,785,543.11 against the second and fifth named defendants. The claim was compromised as against the first, third and fourth named defendants.

2 The summary summons was issued by the then plaintiff, the Governor and Company of the Bank of Ireland, on 24 February 2011. Subsequently NALM acquired the loan, the subject matter of the proceedings, from the then plaintiff. In or about January, 2013, the above named plaintiff purchased the said loan.

3 The plaintiff alleges that the loan became repayable on 31 January 2008.

An analysis of the foregoing shows certain lengthy periods of inactivity: -

(i) November 2015 – October 2016;

(ii) April 2017 – February 2018; and, to a lesser extent

(iii) November 2018 – February 2019.

Course of Proceedings

24 February 2011 –	Summary summons issued.
28 April 2011 –	Second named defendant enters appearance.
9 September 2011 –	Then plaintiff issues motion for summary judgment.
7 December 2011 –	NALM acquires the loan facility from then plaintiff.
January/March 2012 –	Motion for summary judgment adjourned to enable second named defendant to file replying affidavit.
May 2012-December 2012 –	Proceedings adjourned as NALM were engaged in selling said loan facility.
February 2013 –	The above named plaintiff substituted for Governor and Company of the Bank of Ireland.
March 2013 –	Motion adjourned to allow plaintiff file replying affidavit.
27 May 2013 –	Proceedings discontinued against first, third and fourth named defendants.
May-June 2013 –	Adjournments to allow affidavits be filed.
21 July 2013 –	The fifth named defendant issued a motion for security for costs.
17 July 2013 –	Motion for security for costs was listed for hearing on 26 July 2013. The second named defendant was given liberty to issue a similar motion but did not do so. The motion for judgment against the second named defendant was listed on 11 November 2013.
26 July 2013 –	Motion for security for costs not reached in list for hearing, adjourned to 12 December 2013.
11 November 2013 –	Second named defendant applies to adjourn motion until resolution of security of costs application.
2 December 2013 –	Second named defendant files further affidavit raising new grounds to defend claim.
12 December 2013 –	Fifth named defendant's motion for security for costs was compromised.
6 January 2014 –	Second named defendant issues its own motion for security for costs.
March 2014 –	Plaintiff issues separate proceedings for recovery of lands secured against the loan, the subject matter of these proceedings.
28 April 2014 –	Second named defendant was refused security for costs by High Court.
14 November 2014 –	Application for summary judgment heard.
14 January 2015 –	Application for summary judgment was refused and matter remitted to plenary hearing.
27 March 2015 –	Appeal against order refusing summary judgment was withdrawn.
29 May 2015 –	Statement of Claim delivered.
3 June 2015 –	Second named defendant serves a notice for particulars.
19 November 2015 –	Second named defendant delivers a Defence and counterclaim.
26 October 2016 –	Plaintiff delivers a reply to the Defence and counterclaim of the fifth named defendant together with a notice for particulars.
November 2016 –	Solicitors of the second named defendant object to service of a notice of trial because of the absence of a reply to particulars and discovery. The second named defendant issued a motion to compel replies to particulars.
February 2017 –	Plaintiff seeks advice on proofs.
April 2017 –	Plaintiff advised that a number of witnesses previously employed by Bank of Ireland required. The plaintiff was unable to locate one particular witness until November 2018.
February 2018 –	Solicitor for plaintiff receives draft replies to particulars raised by second named defendant and sends them to plaintiff for review.
26 March 2018 –	Solicitor for the plaintiff serves a notice of intention to proceed.
2 November 2018 –	Solicitor for the plaintiff serves replies to particulars raised by second named defendant and also requests the second named defendant reply to the notice for particulars raised by the plaintiff.
February 2019 –	Plaintiff seeks replies to particulars from the second and fifth named defendants.
13 March 2019 –	Motion issued seeking to compel replies to particulars.
13 March 2019 –	Second named defendant issues within motion to dismiss proceedings for want of prosecution.

Principles to be Applied

5 There are numerous authorities on the principles that a court should apply to an application to dismiss for want of prosecution. In my view, this application may be determined by applying the oft cited principles set out in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. The Court has to consider whether: -

(i) There has been inordinate delay;

(ii) If there has been inordinate delay, whether such delay is inexcusable; and

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