The Court of Appeal has dismissed Brendan Kelly and Asta O’Kelly’s claims against Irish Bank Resolution Corporation Limited after allowing the Bank’s appeal over years of unexplained delay in prosecuting the cases.
The appeals concerned claims for assault and trespass to the person arising from the Sheriff’s enforcement of a possession order at the plaintiffs’ home on 18 April 2012. The plaintiffs alleged they were forcibly and wrongfully removed. Those allegations were not findings in this appeal.
The High Court had refused the Bank’s applications to dismiss the claims for want of prosecution. The Bank appealed that refusal. In a judgment delivered on 6 October 2021, the Court of Appeal found the delay inordinate and inexcusable and held that the High Court had given too much weight to the Bank’s failure to apply to lift a statutory stay on proceedings. The plaintiffs had not provided an affidavit explaining their delay, and the court said they could have applied to have the stay lifted.
The statutory stay followed the Bank’s entry into special liquidation in February 2013. The Court of Appeal noted that a High Court ruling delivered the following month had established that the stay could be lifted by court order. The plaintiffs did not apply to lift it.
The court also considered that the plaintiffs had consented to dismissing their claim against the Sheriff in 2017. The remaining claim against the Bank was unclear, the judgment said, and the plaintiffs had not explained its legal basis. The court said it was not deciding the merits of a claim that had not been separately challenged as bound to fail; the unclear surviving claim was relevant to the balance of justice and prejudice in deciding the delay applications.
The Court of Appeal allowed the Bank’s appeal and dismissed the plaintiffs’ claims against it. The Bank was entirely successful on appeal. The court’s provisional view was that the Bank should receive its costs in the Court of Appeal and the High Court, but the plaintiffs could seek a short supplemental hearing on costs within 14 days of the judgment.