The High Court has refused an application by two accountants to dismiss a trustee’s professional negligence claim over a €500,000 investment, finding they had not met the legal test for striking out proceedings on delay grounds.
Mr Justice Mark Heslin delivered the judgment on 24 January 2024. The defendants, Edward Kirk and John Patrick Donnan, practising as Kirk & Associates, brought their motion in July 2022. They argued that the plaintiff, First Names Trust Company (Ireland) Limited, had delayed before and after issuing proceedings and that the case should be dismissed for want of prosecution or under the European Convention on Human Rights Act.
The underlying claim concerns investments in Topsec Technology Limited. The plaintiff alleges that, before it invested €500,000 in December 2011, the defendants represented that a €290,000 debt Topsec owed to related company Cyberkid Limited had been written off. It claims it relied on those representations and that the investment later performed poorly. The defendants deny liability. The judgment addressed only whether delay justified dismissing the claim; it did not determine any disputed issue in the underlying case.
Applying the three-part test in Primor plc v Stokes Kennedy Crowley, the judge found the defendants had not shown that the plaintiff’s delay was inordinate. He also found that any delay was excusable. The judgment recounts the plaintiff’s steps, including instructing solicitors and experts, and notes that the defendants had themselves caused about 12 months of post-commencement delay, including delays in delivering a defence and replies to particulars.
The parties disputed progress on discovery. In January 2020, the defendants had said they would bring a discovery motion unless the plaintiff agreed to revised categories. They did not bring it. The judge also took account of the pandemic restrictions, including roughly 12 months across three national lockdown periods, when assessing the chronology.
On the balance of justice, the judge said the proceedings should continue by an “extremely wide margin”. He found no established prejudice to the defendants’ ability to defend the case: the dispute was heavily document-based, and the defendants had not identified missing documents, unavailable witnesses or specific memory problems. Their claims of harm to professional reputation and insurance were not supported with particulars. Defence counsel had also accepted that there was no fair-trial prejudice.
The court refused to dismiss the proceedings. The judgment did not decide the negligence claim or make a final costs order. The parties were invited to submit an agreed draft order within 14 days, or short written submissions on any matters they could not agree.