Lismore Homes Ltd ((in Receivership)) v Bank of Ireland Finance Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quirke |
| Judgment Date | 30 June 2006 |
| Neutral Citation | [2006] IEHC 212 |
| Court | High Court |
| Date | 30 June 2006 |
[2006] IEHC 212
THE HIGH COURT
BETWEEN
AND
BETWEEN
AND
RSC O.122 r11
WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558
RSC O.49 r6
DUFFY v NEWS GROUP NEWSPAPERS LTD 1992 2 IR 369
RSC O.28 r1
CROPPER v SMITH 1884 CH 700
WELDON v NEAL 1887 19 QB 394
BANK OF IRELAND v CONNELL 1942 IR 1
KROPS v IRISH FORESTRY BOARD LTD 1995 2 IR 113
RSC 1965 (UK)
CROKE v WATERFORD CRYSTAL GLASS LTD 2005 1 ILRM 321
PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459
GILROY v FLYNN 2005 1 ILRM 290
ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.06.2005 2005 IEHC 294 2005/53/11045
CULBERT v WESTWELL & CO 1992 2 PIQR 54
PRACTICE AND PROCEDURE
Dismissal of action
Inordinate and inexcusable delay - Conduct of defendants - Steps by plaintiff - Whether defendant's actions contributing to delay - Whether plaintiff expediting proceedings - Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 45, Gilroy v Flynn [2005] 1 ILRM 290 and Culbert v Westwell [1992] 2 PIQR 54 followed - Consolidation of proceedings - Previous application refused - Whether court having jurisdiction - Duffy v News Group Newspapers Limited [1992] 2 IR 369 followed - Actions dismissed for inordinate and inexcusable delay; motion to consolidate proceeding and amend statement of claim dismissed (1990/5724P & 5939P - Quirke J - 30/6/2006) [2006] IEHC 212 Lismore Homes Ltd v Bank of Ireland Finance Ltd
: The plaintiffs sought to consolidate both sets of proceedings and to deliver an amended and consolidated Statement of Claim. The first and second named defendants sought, inter alia, to dismiss both claims against it by reason of the inordinate and inexcusable delay on the part of the plaintiffs in prosecuting the action against them.
Held by Quirke J., in dismissing the claims against the first and second named Defendant, that prima facie, a sixteen year delay between the commencement of proceedings and the trial of the action was inordinate. The plaintiffs had not discharged the onus of demonstrating that the delay was excusable. The documents produced to consolidate and amend the proceedings were hopelessly inadequate and unsatisfactory. A substantial risk of a fair trial was real.
Reporter: E.F.
JUDGMENT of Mr. Justice Quirke delivered on the 30th day of June, 2006
There are two High Court actions before the court. The plaintiffs in both actions are companies limited by shares. Both plaintiff companies are beneficially owned by the same person or persons. Both companies are in receivership.
The two actions arise out of the development of lands at Weston Park, Newcastle, Co. Dublin. The plaintiffs” claims as presently constituted are for damages from the same defendants for loss and damage allegedly sustained by the plaintiffs by reason of negligence, breach of duty, misrepresentation and breach of contract on the part of the defendants, their servants and agents jointly and severally.
The negligence, breach of duty, breach of contract and misrepresentation alleged by both plaintiffs against all of the defendants is the same. The loss and damage allegedly resulting from negligence, breach of duty, breach of contract and misrepresentation on the part of the defendants is alleged to have affected the plaintiffs differently and to have resulted in claims for different heads and levels of damages in respect of each of the plaintiff companies.
Lismore Homes Limited (hereafter referred to as "Homes") is a company limited by shares which are presently held by Ms. Antoinette Kennedy. Its objects included the purchase of property for development, redevelopment, management exchange resale or for any other purpose.
Lismore Builders Limited (hereafter referred to as "Builders") is also a company limited by shares which are presently held by Ms. Antoinette Kennedy. Builders was incorporated with the express intention and objective of developing and building houses on lands belonging to or to be acquired by Homes.
It was agreed between Homes and Builders that Builders would develop lands owned by Homes at Weston Park in Dublin and would build houses on those lands for the mutual benefit of both companies subject to certain terms and conditions.
Both actions were commenced by the issue and service of Plenary Summonses in April, 1990. Statements of Claim were delivered in both actions on 8th April, 1991. For reasons which will be outlined in greater detail later herein the actions have not proceeded to trial.
The plaintiffs and the first and second named defendants have now brought motions before the court seeking particular reliefs.
There are five applications before the court on foot of Notices of Motion. They are as follows:-
1. An application on behalf of Homes and Builders on foot of a Notice of Motion dated the 23rd day of December, 2004, seeking:
(a) An Order consolidating the substantive proceedings on behalf of Homes with the substantive proceedings on behalf of Builders, and
(b) An Order permitting Homes and Builders thereafter to deliver an amended and consolidated Statement of Claim.
2. An application on behalf of the first defendant (hereafter "the Bank"), on foot of a Notice of Motion dated the 14th day of April, 2005, for an order pursuant to the inherent jurisdiction of the court striking out or dismissing the claim made by Homes against the Bank on the grounds that the proceedings comprise an abuse of process in two respects, that is —
(a) By reason of inordinate and inexcusable delay on the part of Homes in prosecuting the action against the Bank and,
(b) Because they have been improperly maintained by Homes without any bona fide intention of proceeding to trial.
3. An application made on behalf of the Bank on foot of a Notice of Motion dated the 6th day of April, 2005, seeking an order pursuant to the inherent jurisdiction of the court striking out or dismissing the claim made by Builders against the Bank on the grounds that the proceedings comprise an abuse of process because: —
(a) of inordinate and inexcusable delay on the part of Builders in the prosecution of the action and because,
(b) they have been improperly maintained and prosecuted by Builders without any bona fide intention of proceeding to trial,
4. An application on behalf of the second named defendant (hereafter "Deloittes"), seeking,
(a) An order pursuant to Order 122, r. 11 of the Rules of the Superior Courts dismissing the claims made by Homes against Deloittes for want of prosecution consequent on an expiry of a period of more than three years since any proceeding had been had therein, and
(b) An order pursuant to the inherent jurisdiction of the court dismissing the claim by Homes against the Bank for want of prosecution on grounds of inordinate and the inexcusable delay.
5. An application on behalf of Deloittes on foot of a Notice of Motion dated the 25th day of February, 2005, seeking —
(a) An Order pursuant to O. 122, r.11 of the Rules of the Superior Courts dismissing the claim by Builders against Deloittes for want of prosecution consequent on the expiry of a period of over seven years since any proceedings had been had herein, and
(b) An Order pursuant to the inherent jurisdiction of the courts dismissing the claim by Builders against Deloittes for want of prosecution on grounds of inordinate and inexcusable delay.
a A. In the Statements of Claim delivered on behalf of both Homes and Builders on the 8th of April 1991 it is claimed as follows:
1. That from the year 1987 onwards it was the intention of Homes and Builders to build a housing development on lands at Weston Park, Newcastle, Co. Dublin with the financial assistance of the Bank. Homes had purchased the land in or around 1979.
The indebtedness of Homes and Builders to the Bank was initially secured by way of a mortgage debenture dated 18th November, 1987, which provided inter alia that Homes and Builders would, on demand, repay the Bank all sums due or owing to the Bank on any account whatsoever.
2. That by letter dated 17th February, 1989, the Bank demanded payment of all sums then due and owing by Homes and Builders to the Bank but withdrew that letter and demand and entered into an agreement with Homes and Builders in March, 1989, which provided that the Bank would make further facilities available subject to certain terms and conditions including a condition (called Special Condition 9.01) which provided for the appointment and retention by Builders of a financial controller, a quantity surveyor and an auctioneer all of whose appointments had to meet with the prior approval of the Bank.
3. That pursuant to Special Condition 9.01 an employee of Deloittes named Mr. Matt McIlvenna was appointed financial controller of Builders in March of 1989… " with the approval and/or at the insistence of…" the Bank.
4. That the following were express or alternatively implied terms of an agreement between Builders and Deloitte in relation to the appointment of Matt McIlvenna.
a "(a)… That Deloittes would initially be paid a total sum of IR£2,750 exclusive of V.A.T per week by...
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