Darcy v Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 02 December 2022
• Neutral Citation: [2022] IEHC 673
• Year: 2022
• Court: High Court
• Docket Number: Record No. 2014/755 P

Between

Tom Darcy

Plaintiff

and

Attorney General and Minister for Justice and Equality

Defendants

[2022] IEHC 673

Record No. 2014/755 P

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to dismiss the plaintiff’s claim for want of prosecution – Whether the balance of justice favoured dismissal of the proceedings

Facts: The plaintiff, Mr Darcy, instituted proceedings which sought to challenge the constitutionality of the Land and Conveyancing Law Reform Act 2013. The plaintiff claimed that the 2013 Act was invalid, having regard to the Constitution in that it “retroactively and retrospectively and in violation of the rule of law and the principles of legality takes away the rights and entitlements of the plaintiff to invoke a plenary as opposed to summary procedure” and thus breached several constitutional rights enjoyed by the plaintiff including the right to fair procedures, private property, the protection of his family, his alleged right to his family home, and the inviolability of his dwelling recognised in Articles 40.3, 40.5, 43 and 41 of the Constitution. Articles 1, 6, 8 and 13 of the European Convention on Human Rights were also pleaded and a declaration of incompatibility was sought. The defendants, the Attorney General and the Minister for Justice and Equality, applied pursuant to the inherent jurisdiction of the High Court to dismiss the plaintiff’s claim for want of prosecution by reference to the Primor principles: Primor v Stokes Kennedy Crowley [1996] 2 I.R. 459.

Held by Stack J that for approximately six and a half years, no step was taken in the proceedings by either party, and as it was for the plaintiff to prosecute his claim, the plaintiff was guilty of inordinate delay in the prosecution of the proceedings. Applying the decision of O’Leary v Turner [2018] IEHC 7 to the proceedings, it was Stack J’s view that the plaintiff’s difficult personal and financial circumstances could not be relied upon to excuse the delay of which the plaintiff had been guilty; this was particularly the case where the various bereavements and his son’s health problems all occurred prior to the period of delay. Insofar as the plaintiff appeared to complain that legal aid was not available to him, Stack J held that this was not something in respect of which the Court had any power or function, nor could it be regarded as a factor capable of excusing delay. Stack J held that the plaintiff’s delay was inexcusable. Stack J found that there was prejudice in that the existence of the proceedings may be regarded as placing a question mark over the operation of the Act. This, in Stack J’s view, would not normally be sufficient to tip the balance in favour of the dismissal of a claim in the absence of an effect on the operation of the impugned statutory provisions. However, it seemed to Stack J that the plaintiff had no real intention of prosecuting his claim as he had no legal representation, was not entitled to legal aid, and contended that he could not progress the case without a lawyer. Therefore, Stack J held that the plaintiff’s interest in maintaining the proceedings were entitled to little, if any, weight as he did not intend to bring them to trial. Stack J held that the minimal prejudice shown by the State was sufficient, on the facts of the case, to tip the balance in favour of dismissal.

Stack J dismissed the proceedings.

Application granted.

JUDGMENT of Ms. Justice Stack delivered on the 2 ^nd day of December, 2022

Introduction

1 . This is an application by the defendants pursuant to the inherent jurisdiction of the court to dismiss the plaintiff's claim for want of prosecution. That jurisdiction is exercised according to the well-known principles in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and I will refer to these principles in more detail below.

2 . The background to the claim, is that, on 16 April 2012, Allied Irish Banks plc (“AIB”) obtained an order for possession against the plaintiff and his wife in respect of four properties in proceedings bearing High Court Record No. 2010/539 SP. On 29 June 2012, McGovern J. refused a stay, and the plaintiff and his wife appealed both the orders for possession and the refusal of the stay to the Supreme Court (Supreme Court appeal numbers 225/2012 and 352/2012).

3 . On 30 November 2013, the Supreme Court allowed the appeal, set aside both High Court Orders, remitted the possession proceedings to plenary hearing and directed that the plaintiff would pay the defendant the costs of the High Court proceedings and of the appeal to the Supreme Court. There was no stay on the order for costs.

4 . The plaintiff and his wife won their appeal on the basis of a well-known judgment of this Court, in Start Mortgages v. Gunn [2011] IEHC 275. In Gunn, it was held that the owner of a charge registered prior to the commencement of the Land and Conveyancing Law Reform Act, 2009, on 1 December 2009, could not apply for summary possession pursuant to s. 62 (7) of the Registration of Title Act, 1964, as amended, unless there had been a default and a demand for payment prior to that date. Section 62(7) of the 1964 Act had been repealed by the 2009 Act and no right to apply for possession on a summary basis pursuant to s. 62(7) could be said to have accrued to the charge holder for the purposes of s. 27 of the Interpretation Act, 2005, which preserves rights under repealed statutes which already accrued and where no specific transitional provisions are enacted. No such provisions were enacted in the case of the 2009 Act, which simply repealed s. 62(7) of the 1964 Act and Dunne J. held that, unless a demand for payment had been made prior to 1 December 2009, the right to invoke the summary procedure under s. 62(7) of the 1964 Act had not accrued to the charge holder.

5 . That left a lacuna in relation to many charges created prior to 1 December 2009, and where the requisite demand had not been made prior to that date, and left charge holders without a means of recovering possession on a summary basis. Accordingly, the Land and Conveyancing Law Reform Act, 2013 (“the 2013 Act”) was enacted — s. 1(2) of which provided that certain “repealed enactments” (including s. 62(7) of the 1964 Act) continued to have effect, subject to the proviso in s. 1(5) that the 2013 Act was not to apply to existing proceedings.

6 . Subsequent to the Supreme Court order remitting the original possession proceedings to plenary hearing, AIB discontinued those proceedings and issued fresh proceedings (High Court Record No. 2014/44SP), relying on the 2013 Act and claiming an order for possession of the plaintiff's property, which seems to have included his family home, on the basis of the summary procedures set out in s. 62(7) of the 1964 Act. I have consulted the decision of the Court of Appeal in AIB v. Darcy [2016] 1 IR 588, [2016] IECA 214 and it appears that a well-charging order was granted by the High Court in respect of four properties in Howth and Malahide, County Dublin. In the course of the High Court proceedings, an application by the plaintiff to dismiss the proceedings as an abuse of process was refused by Gilligan J., and his refusal was appealed unsuccessfully to the Court of Appeal.

7 . In that judgment, the Court of Appeal unanimously decided that Allied Irish Banks had not committed an abuse of process by discontinuing the first proceedings, which had been remitted to plenary hearing by the Supreme Court, and instead instituting proceedings which took advantage of the change in the law brought about by the 2013 Act. While many of the complaints of the plaintiff made in oral submissions in this case seem to have been made in that case also, it does not appear that the plaintiff raised the constitutionality of the 2013 Act.

8 . While those 2014 proceedings were ongoing, the plaintiff instituted the within proceedings which seek to challenge the constitutionality of the 2013 Act. Fundamentally, the plaintiff claims that the 2013 Act is invalid, having regard to the Constitution in that it “retroactively and retrospectively and in violation of the rule of law and the principles of legality takes away the rights and entitlements of the plaintiff to invoke a plenary as opposed to summary procedure” and thus breaches several constitutional rights enjoyed by the plaintiff including the right to fair procedures, private property, the protection of his family, his alleged right to his family home, and the inviolability of his dwelling recognised in Articles 40.3, 40.5, 43 and 41 of the Constitution. Articles 1, 6, 8 and 13 of the European Convention on Human Rights are also pleaded and a declaration of incompatibility is sought.

9 . The plaintiff now applies to dismiss on the basis of delay by reference to the Primorprinciples. In Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Hamilton C.J. (at p. 460) summarised the principles to be applied as follows:

“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair...