Conan v Sherry Fitzgerald (Commercial) Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] IEHC 170 |
| Court | High Court |
| Docket Number | Record Number 2018/5494 P |
[2023] IEHC 170
Record Number 2018/5494 P
THE HIGH COURT
JUDGMENT of Mr. Justice Mark Heslin delivered on the 31st day of March 2023
. This judgment concerns the defendant's application to dismiss the plaintiff's claim on delay grounds. The defendant's motion, which was issued on 11 January 2022 and initially returnable for 28 March 2022, seeks orders (i) pursuant to the Court's inherent jurisdiction dismissing the plaintiff's claim for want of prosecution and on the grounds of inordinate, unconscionable and/or excessive delay; and (ii) pursuant to the provisions of Order 122 of the Rules of the Superior Courts, dismissing the Plaintiff's proceedings for want of prosecution.
. I am very grateful to Mr. O'Brien BL for the defendant and to Mr. McCarthy SC for the plaintiff, both of whom made detailed oral submissions with clarity and skill during the hearing which took place on 7 March 2021. Written legal submissions were also prepared on behalf of the defendant. These submissions, written and oral, were of great assistance to the court and I will refer to the principal submissions made by both sides during this judgment.
. It is fair to say that there was no material dispute between the parties as to the relevant legal principles and, during the course of this judgment, I will refer to certain relevant authorities.
. As both sides agree, there can be no ‘one size fits all’ approach by the court to an application of the present type. On the contrary, this Court must engage with the specific facts and circumstances of this case, as disclosed by the pleadings and evidence, and provide a ‘bespoke’ response to the application underpinned by the interests of justice and guided by the relevant principles. For that reason, the focus of this Court must be very much on the specific facts and circumstances of the present case, and I now turn to an examination of same.
. I have carefully considered the pleadings and evidence before the court comprising of the following:-
(i) Affidavit sworn by Mr. Harry Fehily, solicitor for the defendant, on 6 January 2022 and the exhibits thereto:
(ii) Replying affidavit of Mr. Mark Conan sworn on 17 May 2022, and the exhibits thereto; and
(iii) Supplemental affidavit sworn by Mr. Fehily on 28 February 2023 and the exhibit thereto.
From the foregoing, a chronology of relevant matters arises, as follows.
. At para. 7 of the plaintiff's 11 July 2018 Statement of Claim, it is pleaded that: “ In or about November 2012, Allied Irish Banks plc. (the owner of EBS) sold a portfolio of EBS loans, including the plaintiff's loans, to Vesta Mortgages Investment Ltd. (“Vesta”), a subsidiary of the US–based private equity firm, Lonestar”. The defendant confirms at para. 7 of the Defence delivered on 4 December 2018 that the foregoing pleas are admitted.
. At para. 8 of the plaintiff's Statement of Claim it is pleaded that, following the assignment of the plaintiff's loans, Vesta invoked a “ Loan to Value Covenant” (“LTV Covenant”) to which the loans were subject and directed the plaintiff to engage valuers to provide valuations of the properties held as security.
. At para. 10 of the Statement of Claim the plaintiff pleads that Vesta directed the plaintiff to instruct “ either Savills or DTZ” to carry out valuations on the plaintiff's commercial properties located at Fade Street, Dublin and Cheltenham, England respectively. At para. 10 of the Defence it is denied that, on 9 December 2013 the plaintiff instructed the defendant to carry out a valuation but, without prejudice to the foregoing, the defendant pleads that, on 9 September 2013 the plaintiff “ instructed the defendant to address a letter of engagement to Vesta Mortgage Investments Ltd. and whereby at all material times that company was the client and/or retained the defendant”.
. It is common case that the defendant carried out a valuation of the Fade Street property in the sum of €1,686,000.00. Para. 12 of the Statement of Claim describes the property as comprising “ two adjoining terraced commercial buildings containing the following units: (a) a retail unit at no. 14 extending over ground and basement with office/workshop accommodation overhead; (b) a public house trading as the Market Bar from 14(a) which extends over ground and mezzanine levels with a large courtyard/smoking area to the front of the property”.
. In essence, the plaintiff claims that the valuation of the property by the defendant was carried out in breach of contract, negligently and in breach of duty, as a consequence of which the plaintiff claims to have suffered financial loss totalling €840,989.00. This loss is said to have arisen in circumstances where, on the basis of the valuation, the plaintiff failed the relevant LTV Covenant. The plaintiff asserts that, had the valuation been properly carried out, this would not have occurred. He pleads that the value of the property was significantly greater than reported by the defendant to Vesta. The plaintiff claims inter alia that in order to meet the LTV Covenant he was obliged to liquidate some of his investments, including selling shares held in Ryanair, and converting Sterling cash balances to Euro. He also pleads inter alia that the payment to Vesta had a consequential impact on the plaintiff's finances, leading him to sell properties at Cheltenham, England and an apartment at George's Quay.
. At para. 6 of his replying affidavit, sworn on 17 May 2022, the plaintiff avers inter alia that:-
“ While the proceedings concern a valuation report dated 22nd October 2013, all of the losses flowing from that report were not crystalised until August 2014 when I had to sell the properties in Cheltenham and George's Quay”.
. At para. 7 of his affidavit, the plaintiff avers that, prior to issuing the proceedings, he was advised that he would have to get an independent expert opinion in respect of the valuation/losses. He avers that “ To this end I appointed Paul Good, chartered valuation surveyor who provided a preliminary opinion on the 25th April 2017 and provided a further report on the 5th May 2017”.
. With respect to the pre–commencement position, the plaintiff also makes the following averment, at para. 7 of his affidavit:-
“ I also engaged Browne Murphy and Hughes accountants who provided a draft report on the 29th November 2017…”.
. At para. 6 of his affidavit, the plaintiff avers inter alia that: “ I suffered significant stress from the consequences of the defendant's negligence which led me to suffer a cardiovascular disorder”. He then refers to and exhibits a letter, dated 29 January 2018, written by Dr. Ross Murphy, whom the plaintiff describes as his cardiac surgeon. With respect to the contents of this letter, the plaintiff makes the following averment:-
“ In the letter, Dr. Murphy expresses his view that my cardiac problems stemmed from the stress that I was suffering from during the period 2013 to 2017 which was when I was dealing with Vesta and the consequences of my dealing with them. I had a stent inserted in June 2017”.
. It does not seem to me that the contents of Dr. Murphy's letter go as far as the plaintiff's averments. It is appropriate to quote the said letter verbatim:-
“To whom it may concern,
This is to certify that this 60-year-old man presented acutely in June 2017 with coronary artery disease. I understand he had significant psychosocial stresses from the period 2013 to 2017. The role of stress in producing coronary disorders is best evidenced by the Whitehall Civil Service studies which suggest that over a chronic period of time, the loss of locus of control of the stress can be associated with excess cardiovascular disorders.
Many thanks,
Yours sincerely
Dr. Ross Murphy
Consultant cardiologist”.
. It seems uncontroversial to say that Dr. Murphy was not a witness to the events of which the plaintiff complains, and that the doctor's understanding is based exclusively on what he was told by the plaintiff. This seems clear from the fact that, according to the letter, the plaintiff first “presented acutely in June 2017”. Nor does Dr. Murphy go as far as stating that the plaintiff's cardiac problems “ stemmed from” the effect on the plaintiff of dealing with Vesta. Rather, Dr. Murphy comments on the role of stress in producing coronary disorders and a particular study which suggests that stress “ can be” associated with excess cardiovascular disorders.
. Insofar as Dr. Murphy's report is proffered with a view to explaining pre–commencement delay on the part of the plaintiff, it does not seem to me to provide anything like a full answer. I say this because, on the plaintiff's case, his losses crystalised as of August 2014 and he did not present acutely with a cardiac issue until June 2017. The interregnum represents a period of almost three years. One could have nothing but sympathy for anyone suffering from stress, but it does not seem to me that there is evidence before the court to the effect that, prior to June 2017, the plaintiff was not in a position to issue proceedings.
. Furthermore, although the plaintiff “ had a stent inserted in June 2017”, no details are given in relation to how long the recovery from that procedure may have taken. On the plaintiff's account, it did not rule out progress in that, as of 29 November 2017, Browne Murphy and Hughes accountants provided their draft report. In other words, whilst the plaintiff underwent a medical procedure in June 2017, it does not seem to me that he has proffered evidence which would allow for a finding that his medical issues were the cause of a further twelve months elapsing until...
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