The High Court has struck out Richard Dineen’s claim against Irish Bank Resolution Corporation Limited (in special liquidation) because he had not delivered a statement of claim. The order is stayed for 21 days, and will remain stayed if he delivers the statement within that period.
Mr Justice Michael MacGrath delivered the judgment on 7 May 2019. The case concerns allegations arising from interest rate swap contracts. Dineen’s claim, as described in the affidavits, alleges negligence, breach of contract and duty, breach of statutory duty and misrepresentation. Those allegations were not determined in this application.
IBRC sought dismissal on several grounds, including failure to deliver a statement of claim, want of prosecution and inordinate and inexcusable delay. At the hearing, it did not proceed with its res judicata ground. The court considered the delay under the three-stage Primor test: whether it was inordinate, whether it was excusable and, if not, whether the balance of justice favoured dismissal.
The judge found the delay inordinate, taking account of the late commencement of proceedings, nearly 12 months between issuing and serving the summons, and almost two years of inactivity before IBRC’s motion. He also found the delay inexcusable. Dineen had referred to disputes with a former solicitor, other litigation and the bank’s unanswered January 2016 correspondence about service. The judge considered those explanations, including the unanswered letter, but found they did not excuse the later failure to progress the case. The reasons had not been communicated to IBRC before its motion.
However, the court was not satisfied that the balance of justice justified dismissing the proceedings for want of prosecution at that stage. The judge noted that IBRC had raised possible difficulties with witness availability and memory, but there was not significant evidence that central witnesses would be unavailable. He also considered that no material change in circumstances or significant new prejudice had been shown between IBRC’s September 2017 letter consenting to late delivery and its motion.
The court therefore declined to dismiss the claim for want of prosecution, while granting IBRC’s application to strike it out for failure to deliver the statement of claim, subject to the 21-day stay. The court did not decide whether the claim breached the rule in Henderson v. Henderson. That issue was adjourned generally, with liberty to re-enter later, because the statement of claim was needed to assess which issues had been or could have been raised in the earlier proceedings.