The High Court has ordered the removal of a lis pendens registered against lands in County Dublin after finding that the proceedings supporting it were served more than three years after they were issued.
Mr Justice Garrett Simons delivered the judgment on 18 October 2022 in an application by Jane Robinson, Eamonn Robinson and Robinson Family Investments Limited to vacate the registration. The lis pendens concerned Folio 18671 of the Register County Dublin and notified prospective purchasers that court proceedings disputed ownership of the lands.
The underlying proprietary action was brought by Ballinlaw Limited in January 2018. Its claim included a declaration that it was the legal and beneficial owner of the lands. The plenary summons was not served within the 12-month period allowed by the court rules and lapsed for service in January 2019 unless renewed. Ballinlaw later obtained leave to renew it, and it was served in March 2021.
The court rejected Ballinlaw’s arguments that the application had to await arbitration or was barred because the summons had been renewed. The underlying dispute had been referred to arbitration by consent in October 2021, but the intended arbitrator later said he could not act after Ballinlaw did not confirm agreement to his appointment terms. The judge held that deciding whether to vacate a lis pendens was exclusively a court matter, and that the renewal decision involved a different legal question from the application to remove the registration.
Justice Simons found that the more than three-year period before service amounted to unreasonable delay. The only justification offered was a series of “without prejudice” letters sent by Ballinlaw’s solicitor between January and April 2018; no substantive response was received. The judge held that this one-sided correspondence over three months could not justify the delay.
The court did not decide whether later delay in progressing the arbitration could also count as delay in prosecuting the action. It said that question was unnecessary to resolve the application.
An order was made under section 123 of the Land and Conveyancing Law Reform Act 2009 vacating the lis pendens registered in respect of the lands. The judgment said this would cancel the entry in the central lis pendens register; the plaintiffs’ solicitor could arrange cancellation of the folio entry by lodging a certificate. The parties were given liberty to apply if difficulties arose.
Costs were not finally determined. The judge’s provisional view was that the plaintiffs were entitled to recover their costs, but either side could file short submissions seeking a different costs order within 14 days. The matter was to be listed for final orders.