Dineen v Irish Bank Resolution Corporation Ltd (in special liquidation)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael MacGrath |
| Judgment Date | 07 May 2019 |
| Neutral Citation | [2019] IEHC 460 |
| Docket Number | [2014 No. 10735 P] |
| Court | High Court |
| Date | 07 May 2019 |
[2019] IEHC 460
THE HIGH COURT
MacGrath J.
[2014 No. 10735 P]
Statement of claim – Want of prosecution – Inordinate and inexcusable delay – Defendant seeking an order dismissing the action of the plaintiff – Whether the action ought to be dismissed for failure to deliver a statement of claim
Facts: The defendant, Irish Bank Resolution Corporation Ltd (in special liquidation), by notice of motion dated 21st March, 2018, made application to the High Court for an order pursuant to O. 27, r. 1 of the Rules of the Superior Courts: (i) dismissing the action of the plaintiff, Mr Dineen, for failure to deliver a statement of claim; (ii) in the alternative, an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiff’s action for want of prosecution; (iii) further or in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff’s claim on the grounds of inordinate and inexcusable delay; (iv) in the alternative an order pursuant to the inherent jurisdiction of the court striking out the proceedings on the basis that they amount to an abuse of the process and that they are res judicata or, alternatively are in breach of the rule in Henderson v Henderson. At the commencement of the hearing of the application, counsel for the defendant indicated that he would not be proceeding with the application insofar as it related to the striking out of proceedings on the grounds that they are res judicata.
Held by MacGrath J that, in the circumstances, the delay on the part of the plaintiff was both inordinate and inexcusable. MacGrath J was not satisfied that the balance of justice was or had been shown to be such as to justify the court to exercise its jurisdiction to dismiss the claim for want of prosecution.
MacGrath J held that, in so far as the application to strike out the proceedings because of a failure to deliver the statement of claim was concerned, the plaintiff had been in considerable default. Therefore, MacGrath J proposed to accede to this aspect of the application and strike out the plaintiff’s case, but in the interests of justice he would place a stay on the order of the court for 21 days. MacGrath J held that if a statement of claim was delivered within that time the stay would remain in place. The failure of the plaintiff to deliver a statement of claim, in MacGrath J’s view, also caused considerable difficulty in the assessment of the proper application of the principle in Henderson v Henderson. MacGrath J proposed adjourning generally that part of the application with liberty to re-enter at a later and more appropriate stage of the proceedings.
Application granted in part.
By notice of motion dated 21st March, 2018, the defendant makes application to the court for an order pursuant to O. 27, r. 1 of the Rules of the Superior Courts:-
(i) Dismissing the plaintiff's action for failure to deliver a statement of claim;
(ii) In the alternative, an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiff's action for want of prosecution;
(iii) Further or in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay;
(iv) In the alternative an order pursuant to the inherent jurisdiction of the court striking out the within proceedings on the basis that they amount to an abuse of the process and that they are res judicata or, alternatively are in breach of the rule in Henderson v. Henderson.
At the commencement of the hearing of the application, counsel for the defendant indicated that he would not be proceeding with the application insofar as it related to the striking out of proceedings on the grounds that they are res judicata.
The application is grounded upon the affidavit of Mr. Mark Traynor, solicitor for the defendant, sworn on the 21st March, 2018. The defendant was placed into special liquidation on the 7th February, 2013, pursuant to Ministerial order, S.I. 36 of 2013. Joint special liquidators were appointed. Pursuant to s. 6(2)(a) of the Irish Bank Resolution Corporation Act 2013, on the making of the special liquidation order, a stay was placed on any proceedings involving Irish Bank Resolution Corporation Limited (‘ IBRC’) with no further proceedings being permitted to be issued without the permission of the court.
In November, 2014, the defendant was served with a notice of motion and affidavit by the plaintiff seeking permission of the court for leave to bring proceedings against the defendant. This was grounded on an affidavit sworn by Mr. Barry Sheehan, the plaintiff's then solicitor, sworn on the 10th December, 2014. Mr. Sheehan averred that in 2010 the defendant obtained judgment against the plaintiff for €21.3 million. The plaintiff consented to judgment in that sum. In those proceedings, the plaintiff's proposed cause of action was described as being an action in tort and for breach of contract arising out of certain events which occurred in and around January, 2009. It was stated, in particular, that the defendant had failed in its obligations to the plaintiff under the Markets in Financial Instruments Directive regarding a “ swap product”. The plaintiff claims that he had suffered loss and damage in consequence of the defendants negligence and breach of duty, which damage included the fact that judgment had been entered against him. It was stated that he did not become aware that he had such a cause of action until he sought legal advice in recent times. The plaintiff had been a customer of the defendant who is the successor in title to Anglo Irish Bank Corporation Ltd. At para. 7 of Mr. Sheehan's affidavit he avers:-
‘I say the said cause of action broadly relates to the failure on the part of the respondent to properly implement or apply the terms and compliance standards as laid down in the European Banking Industry law by the Markets and Financial Instruments Directive, which was transposed into Irish law on the 1st November 2007 by the Markets in Financial Instruments and Miscellaneous Provisions Act 2007. In relation to the inclusion of a swap product on their offer letter to the plaintiff in February 2009’.
Mr. Sheehan expressed concern that if the proceedings were not issued on or before the 31st December, 2014, that they may become statute barred. Of some note in this regard, is a letter which was exhibited to Mr. Sheehan's affidavit from the solicitors for the defendant which stated, inter alia, that from the information in their possession, Mr. Dineen had entered into two swaps with Anglo in 2007 and that therefore any cause of action which he may have had was now statute barred. They disputed that the knowledge obtained by the plaintiff was of recent origin and referred to correspondence which they had received from previous solicitors for Mr. Dineen in 2012 in relation to an allegation of potential mis-selling. Indeed, in a letter of 17th December, 2014, Mr. Sheehan advised Messrs A&L Goodbody, solicitors for the defendant, that at the time he swore the affidavit he was unaware that his client had been represented by previous solicitors. His client was out of the jurisdiction at that time. A letter from the plaintiff's former solicitors dated 26th November, 2012, directed to the secretary of IBRC, referred specifically to the swap derivative agreements which had been entered into in March, 2007 and November, 2007. Queries were raised as to whether appropriate inquiries had been conducted by the bank to establish the suitability of these derivative products for the plaintiff.
In the events which transpired, leave of the court was obtained and a plenary summons issued on the 19th December, 2014 in which the plaintiff claimed damages for negligence, breach of contract, breach of duty, breach of statutory duty and misrepresentation, and recision of and restitution of any payments made pursuant to any contract between the plaintiff and the defendant.
No statement of claim has been delivered to date.
Mr. Traynor, solicitor for the defendant, in an affidavit sworn 21st March, 2018, avers that despite correspondence the summons was not served on the defendant until the 17th December, 2015. By then a different firm of solicitors was acting for the plaintiff. Service was effected a matter of days before the expiration of the time allowed for service under the Rules of the Superior Courts.
An appearance was entered on the 17th December, 2015 and the defendant called upon the plaintiff to deliver a statement of claim.
Mr. Traynor avers that, thereafter, as nothing further was heard from the plaintiff, he was instructed by his client to write to the plaintiff's advisors consenting to the late delivery of a statement of claim within 21 days and threatening a motion seeking to dismiss the claim for want of prosecution. He did so by letter of the 25th September, 2017, wherein it is stated:-
‘We note that your client has not delivered a statement of claim within the period prescribed by the Rules of the Superior Courts. We hereby consent to the late delivery of your clients' statement of claim within 21 days from the date of this letter. If your client fails to deliver the statement of claim within this further 21-day period, we will without further notice to you issue a motion to dismiss your clients' claim for want of prosecution pursuant to O. 27, r. 1 A of the Rules of the Superior Courts 1986 as amended by the Rules of the Superior Courts (O. 27) (Amendment) Rules 2014 ( SI 63 of 2004)’.
The within motion issued on 21st March, 2018.
The defendant contends that the plaintiff has...
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