Lyden v Irish Bank Resolution Corporation Ltd (in special liquidation)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 26 June 2018 |
| Neutral Citation | [2018] IEHC 374 |
| Court | High Court |
| Docket Number | [2012 No. 12659 P.] |
| Date | 26 June 2018 |
[2018] IEHC 374
[2012 No. 12659 P.]
THE HIGH COURT
Inordinate and inexcusable delay – Balance of justice – Motion to dismiss – Defendant seeking to have the plaintiff’s claim dismissed by reason of the inordinate and inexcusable delay of the plaintiff in prosecuting his claim – Whether the balance of justice favoured dismissing rather than continuing the proceedings
Facts: The plaintiff, Mr Lyden, in or about December, 2006, agreed to invest in a fund promoted by Anglo Irish Bank Corporation Ltd (the predecessor in title of the defendant, Irish Bank Resolution Corporation Ltd) (the contract) together with an associated loan agreement. The plaintiff repaid the loan in early 2008 and the defendant continued to hold the investment on behalf of the plaintiff. On 13th December, 2012 the plaintiff issued a plenary summons seeking a declaration that the contract was null and void as between the plaintiff and the defendant or in the alternative seeking rescission of the contract and an order providing for repayment to the plaintiff by way of restitution of all payments made by the plaintiff in connection with the contract since the 14th December, 2006. He also sought damages for breach of contract, for breach of fiduciary duty, for negligent misrepresentation and negligent misstatement. In February, 2013, by reason of the passing of the Irish Bank Resolution Corporation Act 2013 all actions against Irish Bank Resolution Corporation Ltd (as Anglo Irish Bank Corporation Ltd was then known) were automatically stayed. On 27th November, 2013 the plaintiff obtained an order pursuant to s. 6(2)(a) of the 2013 Act lifting the statutory stay on the proceedings and granting the plaintiff liberty to amend the title of the summons to read Irish Bank Resolution Corporation (in special liquidation). The plaintiff then served the plenary summons on 11th December, 2013 but he did not deliver a statement of claim either with the summons or thereafter. An appearance was entered on behalf of the defendant on 17th December, 2013 and solicitors for the defendant requested the delivery of a statement of claim on 11th March, 2014. Thereafter the proceedings lay fallow for three and half years until 29th June, 2017 when the plaintiff served a notice of intention to proceed. After a month had elapsed, the plaintiff still did not deliver a statement of claim. On 6th October, 2017 the defendant issued a motion seeking to have the plaintiff’s claim dismissed by reason of the inordinate and inexcusable delay of the plaintiff in prosecuting his claim. The defendant emphasised the fact that the summons was issued when the limitation period had nearly expired and that the plaintiff then delayed for nearly a year before serving the plenary summons, even allowing for the need to make an application to court to lift the stay on the proceedings following the defendant going in to special liquidation. The defendant submitted that the plaintiff was fully aware of all of the elements of his claim from February 2009 at the latest.
Held by Costello J that the delay in this case was inordinate in that the plenary summons issued on the 13th December, 2012 and a statement of claim was not delivered until the 11th October, 2017 after the motion the subject matter of this judgment had issued. Costello J held that the delay was inexcusable in that the only reason offered for the delay was the plaintiff’s unilateral decision – which was not communicated to the defendant and with which it did not agree – to await the outcome of other litigation in order to strengthen his position in this litigation. Costello J did not accept that there was any appreciable delay legitimately attributable to the nature of the case the plaintiff advanced.
Costello J held that the balance of justice favoured dismissing rather than continuing the proceedings. Costello J held that the plaintiff was solely responsible for this delay and that the defendant had been prejudiced. Costello J held that the defendant did not unduly delay in issuing this motion, certainly not to the extent that would disentitle it to the relief sought. Accordingly, Costello J dismissed the action.
Action dismissed.
This is an application to dismiss the plaintiff's claim for delay on behalf of the plaintiff in the prosecution of the proceedings.
In or about December, 2006 the plaintiff agreed to invest in a fund promoted by Anglo Irish Bank Corporation Limited (the predecessor in title of the defendant) (‘the contract’) together with an associated loan agreement. The plaintiff repaid the loan in early 2008 and the defendant continued to hold the investment on behalf of the plaintiff.
On 13th December, 2012 the plaintiff issued a plenary summons seeking a declaration that the contract was null and void as between the plaintiff and the defendant or in the alternative seeking rescission of the contract and an order providing for repayment to the plaintiff by way of restitution of all payments made by the plaintiff in connection with the contract since the 14th December, 2006. He also sought damages for breach of contract, for breach of fiduciary duty, for negligent misrepresentation and negligent misstatement.
In February, 2013, by reason of the passing of the Irish Bank Resolution Corporation Act, 2013 all actions against Irish Bank Resolution Corporation Limited (as Anglo Irish Bank Corporation Limited was then known) were automatically stayed. On 27th November, 2013 the plaintiff obtained an order pursuant to s. 6(2) (a) of the Act of 2013 lifting the statutory stay on the proceedings and granting the plaintiff liberty to amend the title of the summons to read Irish Bank Resolution Corporation (in special liquidation).
The plaintiff then served the plenary summons on 11th December, 2013 but he did not deliver a statement of claim either with the summons or thereafter. An appearance was entered on behalf of the defendant on 17th December, 2013 and solicitors for the defendant requested the delivery of a statement of claim on 11th March, 2014.
Thereafter the proceedings lay fallow for three and half years until 29th June, 2017 when the plaintiff served a notice of intention to proceed. After a month had elapsed, the plaintiff still did not deliver a statement of claim.
On 6th October, 2017 the defendant issued this motion seeking to have the plaintiff's claim dismissed by reason of the inordinate and inexcusable delay of the plaintiff in prosecuting his claim. It would appear that this motion effectively crossed with the plaintiff's statement of claim as he finally delivered his statement of claim on 11th October, 2017.
The defendant submitted that the delay in this case has been inordinate and inexcusable. It emphasised the fact that the summons was issued when the limitation period had nearly expired and that the plaintiff then delayed for nearly a year before serving the plenary summons, even allowing for the need to make an application to court to lift the stay on the proceedings following the defendant going in to special liquidation.
The defendant submitted that the plaintiff was fully aware of all of the elements of his claim from February 2009 at the latest. In a detailed letter written on 11 May 2012 to the chairman of Anglo Irish Bank Corporation Limited the plaintiff was in a position to set out the claims which in fact now form the essence of the statement of claim. He was in a position to set out all these matters in the affidavit sworn on 27th November, 2013 grounding his application to lift the stay on the proceedings pursuant to s. 6 of the Act of 2013. Notwithstanding all of the above, no statement of claim was delivered until the 11th October, 2017.
Miss Eve Mulconry of Arthur Cox Solicitors for the defendant swore the affidavit grounding the application in this case. She avers:
‘21. I say and believe that the defendant, which is in an advanced stage of special liquidation, is prejudiced by the plaintiff's failure to prosecute these proceedings in a timely fashion, as the defendant is at the advanced stage of its winding down and is operating with limited resources, capacity and a lack of corporate memory. For this reason, and in circumstances where key witnesses maybe unavailable, the defendant would be significantly prejudiced should the within proceedings advance to trial.
22. I say that it would be unjust and unfair that the defendant should now be called upon to meet a challenge to contracts and investments entered into in 2006 and/or 2009 in light of the circumstances outlined above and the conduct of the plaintiff.
23. The prejudice faced by the defendant in defending these proceedings is further compounded given that the general endorsement of claim seeks damages arising from ‘negligent statements’ and/or ‘negligent representations’, none of which have been particularised, alleged to have been made by the then servants and/or agents of Anglo Irish Bank Corporation Plc in the period 2006 to 2009.’
The affidavit was sworn on 6th October, 2017 before the delivery of the statement of claim which gives particulars of the alleged negligent statements and representations and of the individuals who allegedly made the statements and representations on behalf of Anglo Irish Bank Corporation Plc.
In his replying affidavit of the 13th November, 2017 the plaintiff takes issue with a number of Ms. Mulconry's averments and in effect says that the defendant has not identified any prejudice by reason of the passage of time in defending this case. At para. 23 of his affidavit he explains his actions and thinking as follows:
‘The facility...
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