The High Court has dismissed Ulster Bank Ireland Limited’s professional negligence proceedings against Tadgh Galavan Insurances Limited, trading as Property Partners Galavan, after finding that the bank’s delay in prosecuting the claim was inordinate and inexcusable.
Mr Justice Meenan delivered the judgment on 8 November 2019. The claim concerned a valuation report for a commercial unit at Unit 7, The Reeks, Tralee Road, Killarney, provided to the bank on 20 February 2008. The bank alleged negligence, negligent misstatement, misrepresentation, breach of duty and/or breach of contract. Those allegations were not determined at trial.
The proceedings began in February 2014, shortly before the limitation period was due to expire. The summons was served in February 2015. After the second defendant sought an order compelling delivery of a statement of claim, it was delivered in July 2015. The bank filed a notice discontinuing its claim against the first defendant that same month. The second defendant delivered its defence in February 2016. The judge said the bank took no further steps to prosecute the case after that.
In June 2018, the second defendant sought dismissal for want of prosecution, citing inordinate and inexcusable delay. The bank relied on an affidavit from a bank official, which referred to loan sale transactions, the need to consider the professional negligence claim carefully, and waiting for losses from the property sale to crystallise. The judge did not accept those matters as adequate explanations. He noted the statement of claim was delivered about nine months after the property sale, yet did not refer to it, and that the bank took no further steps after the defence was delivered.
The second defendant’s affidavit described a fatal explosion at its office building in July 2013, before the proceedings were issued. The explosion destroyed the only computer and records that had not been backed up, including the valuation report and related notes. The judge said the loss could cause difficulties in defending the case, but the defendant’s affiant was an author of the report and could give evidence about its basis. He also said the loss could not be attributed to the bank’s later delay, while noting the risk that witnesses’ memories had faded over the more than ten years since the report was prepared.
The judge found no delay or acquiescence by the second defendant. Having considered the delay, the parties’ conduct and the risk of faded memories, he concluded that the balance of justice favoured the relief sought. He dismissed the proceedings. The judgment resolved the application to dismiss for delay; it did not decide whether the negligence allegations were true.