Ulster Bank Ireland Ltd v Sutton

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 07 August 2020
• Neutral Citation: [2020] IEHC 426
• Docket Number: [2012 NO. 1781 S]
• Court: High Court
• Date: 07 August 2020

BETWEEN

ULSTER BANK IRELAND LIMITED

PLAINTIFF

AND

SEAN SUTTON, AIDAN MCGUINNESS, MICHAEL BUTLER, MEL FLANAGAN, JOHN MCCANN

AND

PHILIP STAUNTON

DEFENDANTS

[2020] IEHC 426

MacGrath J.

[2012 NO. 1781 S]

THE HIGH COURT

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

Facts: The plaintiff, Ulster Bank Ireland Ltd, on the 11th May, 2012, instituted proceedings by way of summary summons against the defendants, Mr Sutton, Mr McGuinness, Mr Butler, Mr Flanagan, Mr McCann and Mr Staunton, jointly and severally, in which it claimed recovery of the sum of €2,441,908.80 in respect of monies due on foot of two accounts, being a loan account and a current account which the defendants had with the plaintiff’s branch at 19 Mardyke Street, Athlone, County Westmeath. The sum of €2,269,342.27 was alleged to be due in respect of the loan account and the sum of €73,703.71 in respect of the current account, both sums being said to be due as of the 31st May, 2010. The second defendant, by way of notice of motion dated 22nd August, 2019, applied to the High Court for an order dismissing the plaintiff’s claim for want of prosecution. Mr McGuinness submitted that the delay was inordinate and inexcusable and, if excusable, that the balance of justice lay in favour of the dismissal of the proceedings.

Held by MacGrath J that, having noted that the plaintiff had conceded that the delay in this case was inordinate and having taken into account all matters including the communications between the parties, the undertaking in respect of the receiver and the awaiting of the outcome of the compromise of the Bartragh Island proceedings, while there were certain periods of delay in respect of which there was little evidence of reasons or excuses therefor, when viewed in its entirety and on balance, the delay in this case was in all the circumstances excusable. In all the circumstances, MacGrath J was not satisfied that the balance and interests of justice were such that the court should exercise its inherent jurisdiction to dismiss the proceedings. He was satisfied that the balance of justice lay in favour of permitting the proceedings to continue.

MacGrath J held that he would dismiss this application.

Application dismissed.

JUDGMENT of Mr. Justice MacGrath delivered on the 7th day of August, 2020.

1 This is an application by the second named defendant, brought by way of notice of motion dated 22nd August, 2019 for an order dismissing the plaintiff's claim for want of prosecution. Although the notice of motion does not make it clear whether the application is brought pursuant to O. 122, RSC or pursuant to the inherent jurisdiction of the court, counsel for the plaintiff, Mr. Byrne B.L., informed the court at the outset that no technical objection is taken to the format of the motion. The second named defendant, Mr. McGuinness, is not legally represented in these proceedings.

The Applicable Principles

2 The test applicable on this application is that which was enunciated in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, as subsequently developed. Mr. McGuinness relies on dicta of Hamilton C.J. and also on the decision of the Court of Appeal in Millerick v. Minister for Finance [2016] IECA 206, where Irvine J. (as she then was) summarised the position as follows:-

“17. The principles which apply on an application brought to dismiss proceedings for inordinate and inexcusable delay are fully explored in the written submissions that have been delivered by the parties. The most oft cited decision is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where guidance is given concerning the proper approach to be adopted by the court when met with such an application.

18. The Court is obliged to address its mind to three issues. The first is to decide whether, having regard to the nature of the proceedings and all of the relevant circumstances, the plaintiff's delay is to be considered inordinate. If it is not so satisfied the application must fail. If, on the other hand the Court considers the delay inordinate it must then decide whether that delay can be excused. If the delay can be excused, once again the application must fail. Should the Court conclude that the delay is both inordinate and inexcusable it must not dismiss the proceedings, unless it is also satisfied that the balance of justice would favour such an approach.

19. In considering where the balance of justice lies the Court is entitled to have regard to all of the relevant circumstances pertaining to the proceedings including matters such as delay or acquiescence on part of the defendant and the potential prejudice resulting from the delay.”

3 At para. 32 on p. 12, Irvine J. continued:-

“32. In light of the submissions made by Mr. McGovern concerning the defendant's failure to identify any specific prejudice arising from the delay, a further point needs to be made concerning the approach of the Court to the third leg of the Primor test. It is clear from the relevant authorities that in the presence of inordinate and inexcusable delay even marginal prejudice may justify the dismissal of the proceedings. (See Cassidy v. The Provincialate [2015] IECA 74). That is not to say, however, that in the absence of proof of prejudice the proceedings will not be dismissed. The Court is entitled to take into account all of the circumstances of the case including the list of factors outlined by Hamilton C.J. which are conveniently summarised in the head note of the Primor decision.”

4 Thus, if the court concludes that the delay is both inordinate and inexcusable, it must proceed to consider where the balance of justice lies and in so doing, may take into account a number of factors considered to be relevant including the conduct of the parties to the proceedings, the number and complexity of the events and transactions required to be recalled, whether it is a so called documents case; and any other matter which may bear on the case, or its future conduct, including prejudice, established, presumed or inferred.

The Proceedings

5 On the 11th May, 2012, the plaintiff instituted proceedings by way of summary summons against the defendants, jointly and severally, in which it claims recovery of the sum of €2,441,908.80 (it is to be noted in passing that in the body of the summons, the sum due is also stated to be €2,343,045.90) in respect of monies due on foot of two accounts, being a loan account and a current account which the defendants had with the plaintiff's branch at 19 Mardyke Street, Athlone, County Westmeath. The sum of €2,269,342.27 is alleged to be due in respect of the loan account and the sum of €73,703.71 in respect of the current account, both sums being said to be due as of the 31st May, 2010.

6 The application is grounded on the affidavits of the second defendant, Mr. McGuinness, sworn on 22nd August, 2019 and 22nd November 2019. A number of affidavits have been exchanged since then. Mr. McGuinness vehemently denies that he has any liability in respect of these accounts. He states that he did not receive money or benefit from the advancement. Further, he maintains that he was not a signatory to the facility letter and that the signature thereon purporting to be his, is not in fact his signature. This ground of defence is not one of recent origin but was raised by Mr. McGuinness at a very early stage.

7 Mr. McGuinness entered an appearance on the 12th September, 2013. The summons was renewed by order of Peart J. on the 31st July, 2013. No formal step has been taken in the proceedings since the entry of the appearance and prior to the bringing of this motion by the second named defendant, although the plaintiff served a notice of intention to proceed on 21st August, 2019. Without prejudice discussions have taken place, however, and there has been an exchange of correspondence between them.

Background

8 On the 26th May, 2005 the plaintiff wrote to the defendant and to his co-defendants advising that subject to certain conditions, a loan in their favour by way of commercial mortgage had been sanctioned. The purpose of the advancement was to assist in the purchase of a period house and 30 acres in Killala, County Mayo, known as Miller House. The term of the loan was for two years from the date of the first drawing down, with provision for a review date of the 31st May, 2006. Repayments were to be made by eight instalments. Based on the interest rate quoted, a sum of €6,539.60 per month was chargeable quarterly with the total amount repayable being €2,306,950.40. The cost of the credit was therefore €156,950.40 with an annual percentage rate of charge (APR) of 4.25%.

9 By way of security, the plaintiff required that the borrower's solicitors provide an undertaking leading to a first legal charge over the property and it was also expressly provided that the liability would be joint and several. Mr. McGuinness denies that the signature on the contract and mortgage documents is his.

Affidavit Evidence

10 Mr. McGuinness accepts that he wrote to the plaintiff by email on 30th May, 2005 stating that he was in agreement that Mr. Sutton, Mr. Butler, Mr. Flanagan, Mr Staunton and Mr. McCann complete the purchase of the property. This email was sent at the request of a manager, Mr. Clarke, because, as explained by Mr. McGuinness, in another purchase (Bartragh Island) in which he was an investor with three of the individuals, he was the only one to use his own funds for that investment and the bank was seeking comfort in that regard. Mr. McGuinness disputes that he signed a mortgage deed. He exhibits a letter written to Mr. McGuinness' then solicitor, Mr. Adrian Greeney, on the 30th November, 2009 by Ms. Devine, a...