Shanley v ACC Loan Management Designated Activity Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 28 November 2022
• Neutral Citation: [2022] IEHC 653
• Court: High Court
• Docket Number: [2014 2507 P]

Between

Julie Shanley

Plaintiff

and

ACC Loan Management Designated Activity Company

Defendant

[2022] IEHC 653

[2014 2507 P]

THE HIGH COURT

Defamation – Want of prosecution – Inordinate and inexcusable delay – Defendant seeking an order dismissing the plaintiff’s proceedings for want of prosecution – Whether the delay was inordinate and inexcusable

Facts: The plaintiff, Ms Shanley, initiated defamation proceedings. The plenary summons was issued on 17 January, 2014. The amended plenary summons was issued on 17 January, 2015. An appearance was entered on 10 March, 2015. The statement of claim was delivered on 11 February, 2019. On 5 April, 2019, the plaintiff filed a notice of intention to proceed. The notice for particulars of the defendant, ACC Loan Management DAC (the bank), was issued on 10 October, 2019. Replies to the notice for particulars were furnished on 1 October, 2021. By a notice of motion dated 28 July 2020, the bank sought a number of reliefs, in particular: (i) an order dismissing the plaintiff’s proceedings for want of prosecution by reason of inordinate and inexcusable delay; and (ii) an order substituting “ACC Investments Ltd” for the defendant.

Held by the High Court (Meenan J) that a look at the chronology of the case clearly showed that the delay was inordinate; it took some five years to serve a statement of claim and the defendant responded by a notice for particulars which was only replied to on 1 October 2021, after the motion had issued. Meenan J held that these were defamation proceedings, so it was not a case of awaiting medical or other expert reports which might explain a five-year delay in delivering the statement of claim. Meenan J found that other than a bald statement in the plaintiff’s replying affidavit to the effect that she denied progress of her claim was “inordinate or inexcusable”, no explanation or excuse was given for the delay. Meenan J therefore concluded that the delay was both inordinate and inexcusable. Meenan J noted that he could not identify any action on the part of the bank that caused or contributed to the delay in prosecuting the claim. Meenan J was satisfied that the matters deposed to in the bank’s affidavit did amount to more marginal prejudice. Meenan J noted that since the initiation of the proceedings, the bank had been restructured with the personnel involved in the circumstances of the case no longer employed. The bank personnel involved would be required to give evidence and Meenan J accepted there was “considerable doubt” as to their availability. Meenan J was satisfied that the bank was entitled to the reliefs which it sought, as the balance of justice lay in favour of such.

Meenan J’s provisional view was that the plaintiff be awarded the costs related to the drafting and issuing of the proceedings and that there be no order as to costs on the motion.

Application granted.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 28 ^th day of November, 2022

Background

1 . The plaintiff in these proceedings is a qualified solicitor.

2 . In or about 2005 the defendant (the bank) lent money to a client of Anthony Barry & Co. Solicitor's; a firm based in Athlone. Later that year, Anthony Barry sold the practice to the plaintiff and Orla Cummins. Further loans were given by the bank to the particular client which were subject to undertakings given by the plaintiff and her partner Orla Cummins.

3 . A dispute arose concerning these undertakings. The issue was that, apparently, the charge securing the loans did not extend to the entirety of the property being charged in that it was limited to certain apartments and not the common areas. This dispute was characterised by Hogan J. in the Court of Appeal in ACC Loan Management Ltd v. Barry [2015] 3 IR 473 as being “a relatively minor one which, with a modicum of good sense and good will on all sides, could and should have been resolved.” As will be seen the steps taken by the bank to address the matter were completely disproportionate.

4 . On 28 ^th September 2012, the deputy head of retail of the bank wrote to Orla Cummins stating that two named bank officials would attend her office to obtain the title deeds of the property subject to the disputed charge. The following day two officials arrived at the solicitor's office demanding the documentation. Following intervention by the Gardaí, the bank representatives left. A full account of these extraordinary events is set out in the judgment of Hogan J. paras. 24 – 29.

5 . Following these events, the bank made a formal complaint to the Law Society regarding Ms. Cummins's conduct in contacting the Gardaí. The bank asked the Law Society to treat the failure to hand over the title documents as misconduct. The complaint was withdrawn by the bank. However, this was not the end of the matter.

6 . The bank instituted proceedings in the High Court seeking, inter alia, a declaration that the plaintiff, Anthony Barry and Orla Cummins were guilty of misconduct for failing to comply with the undertakings. Judgment was given by McGovern J. ( ACC Loan Management Ltd v. Barry [2014] IEHC 322) dismissing the claim describing it as “an abuse of process”. The bank appealed to the Court of Appeal.

7 . In the Court of Appeal, Hogan J. gave the judgment of the court. In giving his view of the events of September 2012, Hogan J. stated:

“33. I confess that I struggle to speak with any degree of moderation regarding this entire episode. It is, perhaps, sufficient to say that the conduct of the Bank's authorised...