The Court of Appeal has dismissed three appeals by Vincent Kelly and Claire Collins seeking to have Bank of Ireland’s loan recovery and property possession proceedings thrown out over delay.
In a judgment delivered on 1 November 2017, Mr Justice Michael Peart found that the bank’s delay was inordinate and that about 23 months remained unexplained and inexcusable. But he concluded that the appellants’ failure to provide requested particulars of their counterclaim weighed heavily against dismissing the cases.
The bank’s proceedings seek recovery of more than €4.5 million, including accruing interest, under loans secured on properties in County Cork. The claims include summary summons proceedings for money judgments and special summons proceedings seeking possession of secured properties so they could be sold. The Court of Appeal did not decide whether the bank was entitled to the money or possession.
The appellants argued in the High Court that the proceedings should be dismissed for want of prosecution, inordinate and inexcusable delay, or abuse of process. The High Court refused their applications in April 2015, finding that the delay was not inordinate and, alternatively, was excusable. The appellants appealed that refusal.
The Court of Appeal identified a two-and-a-half-year period, from April 2011 to November 2013, during which the bank took no step to advance the proceedings. It also found unexplained delay after the bank’s solicitors came off record for the appellants, and a further four-month delay before the bank served a notice of intention to proceed after an improperly issued motion had been struck out. The court accepted that other periods were excusable, including time spent in settlement discussions with Mr Kelly, which it found also excused delay as against Ms Collins.
The court rejected the abuse-of-process ground. It said the proceedings were ordinary claims to recover loans and enforce security, and that the asserted improper motive concerned how the bank prosecuted them rather than whether the proceedings themselves were abusive.
In assessing the balance of justice, the court found no specific evidence that witnesses or a fair trial had been compromised by the delay. It acknowledged the appellants’ claims of stress and anxiety but said they had not shown that the bank’s delay caused that harm. The court also noted that they had not supplied replies to the bank’s particulars request, despite reminders, and had not pursued an application for the remaining categories of discovery sought.
Justice Peart said dismissing the proceedings would prevent the bank from pursuing judgment and possession, while allowing the cases to proceed would cause no demonstrated injustice to the appellants. The three appeals were dismissed. The underlying loan and possession claims remain to be determined.