The Governor and Company of Bank of Ireland v Wilson

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 11 December 2020
• Neutral Citation: [2020] IEHC 646
• Docket Number: [Record No. 2012/2113 S.]
• Court: High Court
• Date: 11 December 2020

BETWEEN

THE GOVERNOR AND COMPANY OF BANK OF IRELAND

PLAINTIFF

AND

PETER WILSON

AND

ANNE CAHALANE

DEFENDANTS

[2020] IEHC 646

Barr

[Record No. 2012/2113 S.]

THE HIGH COURT

Summary judgment – Inordinate and inexcusable delay – Want of prosecution – Defendant seeking an order striking out the proceedings brought against her by the plaintiff – Whether there was inordinate and inexcusable delay on the part of the plaintiff in progressing the action

Facts: The plaintiff, the Governor and Company of Bank of Ireland, in summary proceedings, sought a joint and several judgment against the defendants, Mr Wilson and Ms Cahalane, in the sum of €1,265,884.25, together with interest thereon and costs, pursuant to a loan made to the defendants in 2006. The second defendant applied to the High Court for an order striking out the proceedings brought against her by the plaintiff, on the grounds of inordinate and inexcusable delay on the part of the plaintiff in progressing the action. The second defendant’s complaint was that while the summary summons issued on 7th June, 2012 and was ultimately served on her on 12th December, 2013, the summons having been renewed in the interim, no steps were taken by the plaintiff to progress the action. The plaintiff justified the delay on its part by reference to the fact that it had made a decision to allow the first defendant time to put his financial affairs in order, in the hope that he would be able to discharge his overall indebtedness to the plaintiff, including the joint and several liability of the defendants on foot of the loan the subject matter of these proceedings. The plaintiff submitted that in the circumstances, the delay on its part was excusable, or in the alternative, that the balance of justice lay in permitting the plaintiff to proceed with its action against the second defendant.

Held by Barr J that, in relation to the first question for determination under the Primor test (Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459), a period of three years and two months during which no step was taken by a plaintiff to prosecute summary proceedings, represented an inordinate delay. The court found that the delay from December, 2013 to February, 2017 was inexcusable. The court was satisfied that the balance of justice in this case lay with the making of an order striking out the proceedings for want of prosecution.

Barr J proposed making an order striking out the plaintiff’s action against the second defendant for want of prosecution.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 11th day of December, 2020

Background

1 This is an application by the second defendant for an order striking out the proceedings brought against her by the plaintiff, on the grounds of inordinate and inexcusable delay on the part of the plaintiff in progressing the action.

2 In these summary proceedings, the plaintiff seeks a joint and several judgment against the defendants in the sum of €1,265,884.25, together with interest thereon and costs, pursuant to a loan made to the defendants in 2006. The second defendant's complaint is that while the summary summons issued on 7th June, 2012 and was ultimately served on her on 12th December, 2013, the summons having been renewed in the interim; no steps were taken by the plaintiff to progress the action; as a consequence whereof, the second defendant issued a notice of motion on 28th February, 2017 seeking to have the proceedings against her struck out.

3 In essence, the plaintiff has justified the delay on its part by reference to the fact that it had made a decision to allow the first defendant time to put his financial affairs in order, in the hope that he would be able to discharge his overall indebtedness to the plaintiff, including the joint and several liability of the defendants on foot of the loan the subject matter of these proceedings. The plaintiff also relied on other ancillary grounds, which will be set out in more detail later in the judgment. The plaintiff submits that in the circumstances, the delay on its part was excusable, or in the alternative, that the balance of justice lies in permitting the plaintiff to proceed with its action against the second defendant.

Chronology of Relevant Dates

4 The first defendant and the second defendant were in a long term relationship between 1982 and 2004, during which time they had four children. Unhappy differences arose between them and the relationship ended. On 9th February, 2006, the plaintiff advanced circa €1.3m to the defendants. This was done by means of a credit agreement, the purpose of which was to enable the purchase of a property in Crosthwaite Hall, Dún Laoghaire, Co. Dublin, which it was intended would become the residence of the second defendant.

5 The security required under the agreement for the loan was stated in the agreement to be a first legal charge in favour of the plaintiff over property owned by the defendants in Co. Wicklow; the plaintiff's interest was to be noted on a fire policy covering that property; a letter of undertaking was to be furnished from the defendant's solicitor to hold the title deeds in trust and to the order of the plaintiff over the property at Crosthwaite Hall and the plaintiff's interest was to be noted on the fire policy on that property also. The agreement further provided “ takeout of this loan from net sale proceeds” of the Wicklow property, with any residue to be cleared from the first defendant's own funds, or through equity release on existing properties held.

6 A letter of demand seeking repayment of the outstanding balance on the loan was issued by the plaintiff on 20th February, 2012. On 7th June, 2012 the plaintiff issued the summary summons herein against the defendants. An appearance was entered on behalf of the first defendant on 20th August, 2012.

7 Negotiations were held between the three parties in the latter part of 2012 and into 2013. These negotiations ultimately concluded, without any agreement, in or about July 2013.

8 On 14th October, 2013 an order was made by the High Court renewing and amending the summary summons. An order was also made providing for the effecting of substituted service of the amended summons on the second defendant. Service of the summons was effected upon her on 12th December, 2013. An appearance was entered on behalf of the second defendant on 20th December, 2013.

9 Thereafter, the action appears to have gone dormant for a period of just over three years. A notice of intention to proceed was filed on behalf of the second defendant on 16th December, 2016. On 28th February, 2017, the second defendant issued the present motion seeking to dismiss the plaintiff's claim against her for want of prosecution on grounds of inordinate and inexcusable delay.

10 Thus, the period of delay runs from either October 2013, when the order amending the summons and giving the plaintiff liberty to effect substituted service thereof on the second defendant was made, or from 12th December, 2013 when service of the summons was actually effected on the second defendant, and continued until 28th February, 2017, being the date of issue of the present motion by the second defendant; being a delay of three years and four months, or three years and two months, depending on which start date is taken.

Other Relevant Matters

11 This is not a simple debt collection case. There is a dispute between the defendants as to the arrangements between them concerning what was to be done in relation to the repayment of the bridging finance that had been taken out by the defendants to fund the purchase of the Crosthwaite Hall property. It is the second defendant's case that as part of the overall arrangements concerning the breakup of their long term relationship, it had been agreed between the defendants, that she would release her interest in a number of properties that she had held jointly with the first defendant, in return for which, the Wicklow property was to be sold and the proceeds thereof were to be applied to repayment of the bridging loan and if those proceeds were not sufficient to clear the loan, the balance outstanding would be made up by the first defendant from his personal finances. Thus, the second defendant alleges that she was to get the property in Crosthwaite Hall free from any mortgage or other encumbrance.

12 That contention is hotly disputed by the first defendant. Not only does he dispute those contentions which have been made in the affidavit sworn by the second defendant in the course of this application, but he has also instituted proceedings in 2017 against the second defendant seeking a number of reliefs, to include directions pursuant to s.31 of the Land and Conveyancing Law Reform Act 2009, to require the second defendant to consent to the sale of the Wicklow property; an order requiring her to account to the first defendant for the profits received from the rent of the Wicklow property and a declaration that the first defendant is entitled to the equitable interest in the property at Crosthwaite Hall.

13 It is pleaded by the first defendant that he is entitled to the reliefs claimed in the separate proceedings on foot of an agreement reached between the parties in or about 2006 at the time of the breakdown of their relationship. It is further pleaded that the second defendant has persisted in frustrating the performance of that agreement, which has triggered the default on the part of the first defendant in making repayments to the plaintiff and/or has increased his indebtedness in respect of the bridging loan finance the subject matter of the summary proceedings in this case.

14 In an affidavit sworn on 28th November, 2019, by the solicitor acting for the first defendant, Ms. Mary Hayes, it was specifically denied on the part of the first defendant that there was any agreement reached between them...