The High Court dismissed Patrick Barrett’s claim against ACC Bank plc over a rock-breaking machine, finding that long delays in pursuing the case and the machine’s disappearance had irretrievably impaired the bank’s ability to defend it.
Mr Justice Ryan delivered the judgment on 19 April 2013 on ACC Bank’s application to dismiss the proceedings for want of prosecution. The court found that the plaintiff’s delay was inordinate and inexcusable and that the balance of justice required dismissal. The ruling concerns the claim against ACC, the only defendant still before the court.
Barrett’s claim arose from a leasing agreement dated 17 June 1999. He alleged that the machine was defective and sought rescission of the agreement and damages for breach of contract and other civil wrongs. The statement of claim said the machine repeatedly broke down between July 1999 and June 2000, after which it remained at the premises of MC Plant Sales Limited, the supplier, which later went into liquidation.
The proceedings began in June 2003. The summons against ACC was served at its Ballina branch rather than its registered office. ACC entered an appearance in June 2006 and pointed out the service issue. Barrett served a statement of claim in January 2008. The judgment records further periods of inactivity, including between 2008 and 2011, and noted that the case had not reached trial 13 years after the machine was supplied.
Barrett argued that ACC had itself delayed, including by failing to deliver a defence, and that the missing machine disadvantaged him at least as much as the bank. He said his relatives had tried to retrieve it from the supplier’s premises, where it was seen dismantled in 2001. ACC said it had repeatedly sought information about the machine and argued that the delay and its absence made a fair defence impossible.
The judge accepted that the machine’s unavailability seriously disadvantaged both sides, but considered the prejudice to ACC. Barrett had been in a position to secure and preserve the machine and should have moved the proceedings forward promptly and provided the defendants an opportunity to examine it. The court also found that the supplier had been out of business for years and the other defendants were not before it.
The court therefore granted ACC’s application and dismissed the claim against it. The judgment does not determine whether the machine was defective or whether Barrett was entitled to damages or rescission.