Sheeran v Buckley

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 July 2022
• Neutral Citation: [2022] IEHC 400
• Court: High Court
• Docket Number: 2020 No. 250 SP

Between

Conor Sheeran

Plaintiff

and

Patrick Buckley

Defendant

[2022] IEHC 400

2020 No. 250 SP

THE HIGH COURT

Lis pendens – Vacation – Delay – Plaintiff seeking to vacate the registration of a lis pendens – Whether there had been an unreasonable delay in prosecuting the proceedings brought by the defendant

Facts: The plaintiff, Mr Sheeran, applied to the High Court to vacate the registration of a lis pendens. The application was made pursuant to s. 123 of the Land and Conveyancing Law Reform Act 2009. The application was brought before the court by a person who had been appointed as receiver over the relevant lands pursuant to a deed of mortgage and charge. The receiver had explained on affidavit that his ability to realise the value of the mortgaged property by way of sale had been frustrated because of the existence of the lis pendens. The principal issue for determination on the application was whether there had been an unreasonable delay in prosecuting the proceedings brought by the defendant, Mr Buckley.

Held by Simons J that the lis pendens should be vacated in circumstances where the proceedings in aid of which the lis pendens had been registered had not progressed beyond, at best, the service of the plenary summons. No appearances had been entered and it did not seem to him that a statement of claim had been delivered; this was so notwithstanding that more than three years had lapsed since the date of the institution of those proceedings. Accordingly, he held that an order would be made, pursuant to s. 123 of the 2009 Act, vacating the lis pendens in respect of the lands contained in Folio 18240L, Land Registry, County Cork. He held that this would result in the cancellation of the entry made in the register of lis pendens maintained in accordance with s. 122 of the 2009 Act.

Simons J’s provisional view was that having regard to s. 169 of the Legal Services Regulation Act 2015, the plaintiff, having been entirely successful in his application, was entitled to recover his costs as against the defendant.

Application granted.

Appearances

Edward Murray for the plaintiff instructed by O'Brien Lynam

No appearance on behalf of the defendant

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 July 2022

INTRODUCTION

1 This judgment is delivered in respect of an application to vacate the registration of a lis pendens. The application is made pursuant to Section 123 of the Land and Conveyancing Law Reform Act 2009. The application is brought before the court by a person who has been appointed as receiver over the relevant lands pursuant to a deed of mortgage and charge. The receiver has explained on affidavit that his ability to realise the value of the mortgaged property by way of sale has been frustrated because of the existence of the lis pendens.

STATUTORY FRAMEWORK

2 Insofar as relevant to these proceedings, Section 123 of the Land and Conveyancing Law Reform Act 2009 provides that the court may vacate a lis pendens where it is satisfied that there has been an unreasonable delay in prosecuting the action or that the action is not being prosecuted bona fide.

3 An application to vacate may be brought by any person affected by the lis pendens, and must be made on notice to the person at whose instance the lis pendens had been registered.

4 The application to vacate in the present case has been brought by a receiver appointed over the relevant lands. The judgment of the Court of Appeal in Carthy v. Harrington [2018] IECA 321 confirms (at paragraphs 25 and 26) that a receiver may, in principle, constitute a “ person affected by” a lis pendens and thus have standing to bring an application pursuant to Section 123 of the Land and Conveyancing Law Reform Act 2009.

5 The Court of Appeal addressed the nature of the statutory jurisdiction at paragraphs 28 to 31 of the same judgment as follows:

“The court is entitled to make an order to vacate a lis pendens at the behest of a ‘ person affected’ by, it inter alia, ‘(ii) where the court is satisfied that there has been an unreasonable delay in prosecuting the action.’

The considerations as to what constitutes ‘ unreasonable delay’ in this statutory context are, accordingly, quite distinct from the principles and the complex jurisprudence which has developed in regard to litigation delay where a party to litigation can seek to stay or dismiss proceedings on grounds of delay and for want of prosecution.

It must be emphasised that the vacating of a lis pendens pursuant to s. 123 of the 2009 Act does not affect the pleadings in this suit and they continue in being as between the parties thereto. […]

It behoves a litigant who asserts a beneficial interest in or over encumbered property and who institutes proceedings in relation to same to prosecute such a claim with reasonable expedition, particularly in circumstances where the registered legal owners of the property are substantially indebted and where the rights and interests of third parties including a chargeholder who has validly appointed a receiver stand to be adversely impacted by delays in litigation.”

6 The principles governing the exercise of the statutory discretion have been elaborated upon by the High Court (Barniville J.) in Hurley Property ICAV v. Charleen Ltd [2018] IEHC 611 (at paragraphs 81 and 82) as follows:

“Having included a new jurisdiction to vacate a lis pendens (in the case of ‘ unreasonable delay’ in the prosecution of the action) it is clear that the Oireachtas intended to impose an obligation on a litigant who has registered a lis pendens to prosecute the proceedings expeditiously. This is an obligation over and above the obligation which already exists under the Rules of Superior Courts prescribing time limits for the delivery of pleadings and for the taking of steps in the proceedings and over and above the jurisdiction which already inheres in the court to dismiss proceedings in the circumstances outlined by the Supreme Court in Primor plc. v Stokes Kennedy Crowley [1996] 2 I.R. 459 (‘ Primor’). In my view, therefore, the consideration as to whether a person who has registered a lis pendenshas been responsible for an ‘ unreasonable delay’ in the prosecution of the proceedings for the purposes of s. 123(b)(ii) of the 2009 Act does not require the sort of assessment which a court must undertake in deciding whether to dismiss proceedings in accordance with the test in Primor which requires not only a consideration as to whether the delay in the prosecution of proceedings has been inordinate and inexcusable but also, critically, involves the court undertaking a complex assessment of the balance of justice, including issues such as prejudice to the defendant and Constitutional principles of basic fairness of procedures. I do not believe that such considerations arise in the context of the court's assessment as to whether there has been ‘ unreasonable delay’ in the prosecution of an action for the purpose of s. 123(b)(ii) of the 2009 Act. Rather, that section was intended to counterbalance the statutory entitlement conferred on a person in certain circumstances to register as of right a lis pendens and to impose a corresponding obligation on that person to expeditiously prosecute the proceedings in respect of which the lis pendens was registered. While the purpose of a registration of a lis pendens is, as Clarke J. explained in Morrissey, to bring to the attention of third parties who might be interested in acquiring the particular property or a charge over it the fact that there are proceedings in existence in relation to the property which might affect their interests, the registration of a lis pendens can adversely affect or hinder the ability of a person to sell his or her property or otherwise affect that person's ability to deal with the property. […]

It seems to me, correctly construed, the provisions of s.123(b)(ii) of the 2009 Act impose a particular obligation on a person who has commenced proceedings and registered a lis pendens to move with greater expedition than would normally be required or than is required under the Rules of Superior Courts. Such a person would, in my view, be required to act with particular ‘ expedition and vigour’ (to adopt the words used by Haughton J. [in] Togher) in the prosecution of the proceedings.”

7 On the facts of the case before him, Barniville J. held that a delay of some six months between the issuance of the proceedings and the service of same constituted an “ unreasonable delay” in prosecuting the proceedings for the purposes of the statutory test. The court went on to find that a further delay of some three months in the delivery of the statement of claim compounded and reinforced the initial delay, and rendered still more unreasonable the delay in prosecuting the case.

8 The rationale for the imposition of an enhanced obligation for expedition on a plaintiff who has registered a lis pendens has been summarised as follows by the High Court (Butler J.) in...