The High Court has dismissed Tom Darcy’s constitutional challenge to the Land and Conveyancing Law Reform Act 2013 after finding that he had not taken any step to advance the case for about six and a half years and did not appear to intend to bring it to trial.
In a judgment delivered on 2 December 2022, Ms Justice Stack found the delay was both inordinate and inexcusable. She nevertheless concluded that dismissal depended on the balance of justice, and that the State defendants had shown only very slight prejudice.
Darcy’s proceedings, issued in February 2014, challenged the constitutionality of the 2013 Act. He argued that it retrospectively affected his rights by allowing the use of summary possession procedures, and pleaded breaches of constitutional rights and the European Convention on Human Rights. The case was separate from possession proceedings brought by Allied Irish Banks against Darcy and his wife.
Pleadings in the constitutional case closed in October 2015. No step was taken by either side until the defendants served a notice of intention to proceed in June 2021. The State then applied in March 2022 to dismiss the case for want of prosecution.
Darcy relied on serious health and bereavement difficulties in his family, his own mental health difficulties, and his circumstances as a litigant without legal representation. Justice Stack said these did not excuse the delay. She noted that the family difficulties had occurred before the period of delay and applied earlier authority that being unrepresented would not normally excuse a failure to progress proceedings.
The judge said the State had not shown concrete disruption to the operation of the 2013 Act or moderate prejudice. She observed that the constitutional case appeared likely to turn mainly on documents and legal submissions, and that the Act had been relied on successfully in later possession proceedings against Darcy and his wife. The plaintiff’s property also appeared to have been repossessed, making it difficult to see how he could benefit from the challenge.
However, Justice Stack found that Darcy’s stated refusal to proceed without legal representation meant there was little prospect the case would reach trial. On these particular facts, she gave his interest in maintaining proceedings little weight and found that the State’s very slight prejudice was enough to tip the balance of justice in favour of dismissal. She said the same level of prejudice would not normally justify dismissal where a plaintiff intended to proceed on the merits.
The court dismissed the proceedings. The judgment did not decide the constitutional challenge on its merits.