The High Court has struck out a company’s damages claim against receiver Con Cronin after finding that it persistently failed to comply with an order to take steps to have the case listed for hearing.
In a judgment delivered on 20 January 2021, Ms Justice Niamh Hyland said the company had taken no steps to apply for a hearing within the four months set by an order of 8 July 2019, or afterward. She found the breach sufficiently serious and persistent, with no legitimate explanation, and concluded that striking out the claim was a proportionate response.
The dispute arose from a 2014 agreement, made after a public auction, under which Cronin, acting as statutory receiver over Greenwich Court in Rathmines, agreed to sell the property to Pat Moloughney in trust. The company, of which Moloughney is a director, claimed the agreement required the receiver to arrange for an opening in a gable wall at number 4 Greenwich Court to be closed. Its 2014 proceedings sought damages for breach of contract and orders for production of documents. The company’s replies to a request for particulars estimated foregone projected profit at €880,000.
The receiver’s defence said the contract had been rescinded on 30 July 2014 after the purchaser raised planning-related requisitions, despite contractual conditions excluding objections on planning permission. The judge noted that the company’s claim, as pleaded, sought damages and did not challenge the rescission or seek specific performance.
After the defence was delivered in October 2015, the company took no steps for almost three years. The receiver later obtained an order vacating a lis pendens registered over the property. In July 2019, Jordan J. refused an earlier application to strike out the case for delay but directed the company to take all steps necessary to apply to have it listed for hearing within four calendar months.
Instead of taking those steps, the company served a further notice for particulars in January 2020. Justice Hyland said that did not comply with the order. The company’s director cited legal concerns about the property and planning conditions, but the judge found those concerns were not relevant to the claim as then pleaded and had been known since 2014. She also rejected explanations based on the solicitor’s understanding of the deadline and the summer vacation.
The judge considered the company’s stated intention to revise its case, challenge the rescission and potentially combine it with separate specific-performance proceedings. She said this would cause further delay and could increase prejudice to the receiver, including in selling the property. The judgment did not determine the allegations about the parties’ motives; the judge said there was insufficient evidence and the issue was unnecessary to decide.
Justice Hyland dismissed the company’s claim for failure to comply with Jordan J.’s order. She said the separate request to dismiss for delay was therefore unnecessary to decide, though she added that, if required, she would have found the delay inordinate and inexcusable and that the balance of justice required dismissal.