Darcy v Allied Irish Banks Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 21 October 2022
• Neutral Citation: [2022] IECA 230
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/24

Between/

Tom Darcy

Plaintiff/Appellant

and

Allied Irish Banks Plc

First Named Defendant

and

William Murray

Second Named Defendant/Respondent

[2022] IECA 230

Noonan J.

Ní Raifeartaigh J.

Butler J.

Record Number: 2022/24

High Court Record Number: 2015/2214P

THE COURT OF APPEAL

Want of prosecution – Delay – Balance of justice – Appellant appealing against the dismissal of his claim by reason of delay – Whether the delay had been inordinate and inexcusable

Facts: The plaintiff/appellant, Mr Darcy, delivered a statement of claim disclosing that the proceedings related to the development of certain lands with the assistance of facilities provided by the first defendant, Allied Irish Banks PLC (AIB). The appellant claimed, inter alia, that the second defendant/respondent, Mr Murray, improperly pressurised the appellant and his wife into dropping judicial review proceedings against the local authority and then, with AIB, took over the development of the lands in place of the appellant and his wife. It was alleged that the development never took place and that the appellant had suffered significant losses as a result as he was never able to realise the profits which could have been derived from the lands. The statement of claim contained very serious allegations, including deceit. In his defence, the respondent said he never acted as a developer or agent for the first defendant but was retained by AIB as a planning consultant, which was his professional occupation. It was denied that he ever took over the development as alleged and it was denied that he made various representations to the appellant and the appellant’s wife in relation to the development of the lands. The respondent applied to the High Court to dismiss the proceedings against him for want of prosecution and/or on the grounds of delay, pursuant to Order 122 of the Rules of the Superior Courts and pursuant to the inherent jurisdiction of the court. Stack J held that the delay had been inordinate and inexcusable, and the balance of justice favoured the dismissal of the proceedings, which contained serious allegations against the respondent, the defence of which was prejudiced by the fact that 12 years had already passed since some of the most significant events pleaded. Stack J held that it was likely that no trial could take place before 2023, given the failure of the appellant to progress the proceedings. Stack J dismissed the proceedings as against the respondent. The appellant appealed to the Court of Appeal against the dismissal of his claim by Stack J.

Held by Noonan J that he could not conceive of any circumstance in which a delay of three and a half years in proceedings that had themselves been commenced five and a half years after the event could be viewed as other than inordinate. He was therefore satisfied that the appellant had not discharged the burden of showing that the trial judge’s conclusion on this point was incorrect. With regard to the suggestion that the appellant’s personal and family circumstances ought to be viewed as an exculpatory factor in the context of delay, the judge referred to the decision of Baker J, then in the High Court, in O’Leary v Turner [2018] IEHC 7 where such personal factors were found not to be capable of excusing otherwise unexplained delay. Noonan J noted that many of the events relied upon by the appellant predated the institution of these proceedings, and in particular the relevant period of delay between 2016 and 2019. Beyond arguing that this conclusion was wrong, it seemed to Noonan J that the appellant advanced no reason why the Court of Appeal should conclude that the trial judge’s conclusion in that regard was arrived at erroneously. It seemed to Noonan J that the appellant had advanced no cogent or convincing reason why the judge’s conclusion that the balance of justice favoured the dismissal of the proceedings was wrong. Noonan J noted that under O. 112 r. 11 of the RSC, a two year delay gives rise to a right to apply to have the proceedings dismissed for want of prosecution, and while there is no express requirement under O. 112 to demonstrate prejudice of any kind, the court is conferred with a broad discretion to make such order as to the court may seem just. For those reasons, Noonan J was satisfied that the appellant had demonstrated no error in the judgment of the High Court.

Noonan J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 21st day of October, 2022

1 This appeal is brought by the appellant, Mr. Darcy, who is a litigant in person, against the dismissal of his claim by the High Court (Stack J.) by reason of delay. Before dealing with the substance of the matter, I would like to record that fact that the Court has fully taken on board the many sad and tragic events that have befallen Mr. Darcy, which he outlined in his oral submissions with great articulacy and considerable emotion. It is striking that prior to the relevant events, Mr. Darcy appears to have been a very successful and well to do businessman who is now in very reduced circumstances. The Court accordingly has every sympathy for the predicament in which he finds himself.

2 However, the appeal must not be decided upon generalised considerations of personal sympathy, but rather as to whether the Court, having regard to the legitimate scope of review on appeal, is of the view that the High Court judge erred in the manner in which she approached the evidence and circumstances in the case having regard to the established law in this area. The facts are fully set out in the written judgment of the High Court delivered on 1st December, 2021 and a brief summary will suffice.

3 In his statement of claim, Mr. Darcy and his wife, Antionette Darcy, are described as designers and builders of luxury homes. From the facts pleaded, it would appear that Mr. Darcy and his wife borrowed various sums of money from the first defendant (“the bank”, “AIB”) in 2006 and 2007 amounting to some €14m in respect of the proposed development of a number of properties. The second defendant, and the respondent to this appeal, Mr. Murray was at the material time a planning consultant.

4 The statement of claim pleads that in March 2008, Mrs. Darcy applied on behalf of herself and her husband to Fingal County Council for planning permission for a number of houses. It is alleged that in June 2008, the Council first granted and then purported to refuse planning permission for this development on an allegedly ultra vires basis. Arising from this, Mrs. Darcy is said to have instructed solicitors to institute judicial review proceedings against the Council and to lodge a formal complaint with the Irish Planning Institute concerning named planning officers.

5 The Council was notified of this by letter of the 28th August, 2009. The statement of claim continues that on the 31st August, 2009, Mr. and Mrs. Darcy were summoned by the bank to a meeting at which they were told that they must withdraw the proceedings and the complaint and if they declined, the bank would withdraw the loan facilities and repossess their home. It is pleaded that at this meeting, Mr. Darcy was informed that Mr. Murray would be taking over the developments and if they did not agree, the same consequences would ensue.

6 This is described in the statement of claim as amounting to threats and intimidation by the bank.

7 It is alleged that on the 10th September, 2009, a meeting took place at the offices of the Council attended by Mr. Darcy and Mr. Murray. At this meeting, it is alleged that Mr. Murray instructed Mr. Darcy to meet the Council representatives and indicate that he was withdrawing the proceedings and the complaint. Mr. Darcy duly did so, and, as he alleges, under duress by both the bank and Mr. Murray. He claims that thereafter both defendants assumed control of the developments but failed to progress them and they ultimately were abandoned.

8 The statement of claim makes a number of very serious allegations against Mr. Murray. It is said that Mr. Murray, as well as the bank, put Mr. Darcy under duress by threatening him with financial ruin and the loss of his home if he did not agree to the steps demanded. Mr. Murray is further accused of acts of deceit whereby he, together with the bank, deceived Mr. Murray into ceding control of the developments by falsely representing that they intended to manage them to completion and that Mr. Murray would produce revised plans within a week, when he had no intention of doing so. It is further said that Mr. Murray falsely represented that he had been engaged to ensure the completion of the project when this was untrue.

9 Matters do not end there because Mr. Murray is also accused of unjustly enriching himself by requesting and receiving money from Mr. Darcy's account without the latter's knowledge or consent. Finally, it is alleged that the activities of the bank and Mr. Murray constituted an unlawful conspiracy to place Mr. Darcy under duress for the unlawful purpose of forcing him and his wife to abandon their lawfully instituted judicial proceedings and to give up control of their properties and developments for the benefit and financial gain of both the bank and Mr. Murray.

10 It need hardly be said that it is difficult to conceive of more serious allegations than could be made against a party, in particular acting in a professional capacity such as Mr. Murray.

11 Arising from these alleged events, some five and a half years later, and approximately six months before the expiry of the Statute of Limitations, Mr. Darcy issued a plenary summons on the 19th March, 2015. This was followed by a statement of claim on the 12th November, 2015 containing the pleas to which I have referred. A full defence was delivered by Mr. Murray on the 1st February, 2016 denying all the allegations against him and without prejudice to that,...