The High Court dismissed Brendan Kelly and Asta O’Kelly’s slander of title proceedings against Irish Bank Resolution Corporation (IBRC), but refused to dismiss their separate assault proceedings against the bank. Ms Justice Faherty gave judgment on 14 November 2019 after hearing three motions brought by IBRC over delays in the cases.
All three cases arose from the repossession of a property in Killiney, Co Dublin. Kelly and O’Kelly had mortgaged the property with Irish Nationwide Building Society in 2004. The judgment says IBRC, its successor, obtained an order for possession in 2010, and the Dublin County Sheriff recovered possession on or about 18 April 2012 under an execution order.
The two assault proceedings, filed separately in June 2012, sought damages for alleged assault and trespass to the person. The plaintiffs delivered statements of claim in November that year and replied to the bank’s requests for particulars in January 2013. A statutory stay on proceedings against IBRC took effect under the Irish Bank Resolution Act 2013. The bank did not deliver defences in the assault cases.
The third case, filed jointly in July 2012, sought damages for alleged slander of title and trespass, as well as other relief concerning the possession order and property. The plaintiffs did not deliver a statement of claim. In 2012, the High Court had vacated a lis pendens registered against the property and struck out a claim asserting an interest in the land; the Supreme Court dismissed the plaintiffs’ appeal.
The bank sought dismissal of all three cases for inordinate and inexcusable delay or want of prosecution. The plaintiffs argued that the statutory stay prevented progress and that the bank should have applied to lift it before bringing its motions. The judge held that the stay could have been lifted on application and found the delay in all three cases inordinate and inexcusable.
For the slander of title proceedings, the judge concluded that the balance of justice favoured dismissal, taking account of the plaintiffs’ inaction, their failure to deliver a statement of claim and the earlier court decisions concerning the lis pendens. The bank’s motion was granted in relation to that case.
The judge reached a different conclusion on the assault proceedings. She considered the plaintiffs’ early steps before the stay, the bank’s ability to seek to lift it, and the fact that the bank had announced an intention to proceed in May 2017 but took no further step until bringing its motions in December. She found the balance of justice favoured allowing those cases to continue.
The court directed the bank to deliver defences within three weeks. Any replies were due within ten days of the defences. The judgment also set deadlines for requests and responses concerning voluntary discovery, and for any related discovery motions. The court denied the bank’s requested dismissal relief in the assault proceedings.