The High Court has refused to dismiss a claim against David O’Connor over a €1.5 million personal guarantee, despite finding that the plaintiff’s two-year delay in the proceedings was inordinate and inexcusable.
Promontoria (Aran) Limited is seeking judgment on a guarantee dated 10 February 2005. The judgment says O’Connor provided it in connection with an advance to Melbury Developments Ltd, a development company owned by his brother, and also agreed to provide a mortgage over lands as security. Ulster Bank later sold the loans and related security to Promontoria.
O’Connor applied to strike out the proceedings, which began on 14 March 2011. They progressed until 30 June 2015, then paused until 22 May 2017, when Promontoria was substituted as plaintiff following the loan transfer. The court attributed responsibility for that two-year delay exclusively to the plaintiff and said the transfer between well-resourced financial services entities did not excuse it.
The application was made under the Rules of the Superior Courts or the court’s inherent jurisdiction. The court applied the Primor test: whether the delay was inordinate and inexcusable, and whether the balance of justice required dismissal. Having found the first two conditions met, it considered whether the delay had caused serious prejudice and whether basic procedural fairness called for the claim to be dismissed.
O’Connor argued that memories of the guarantee’s circumstances were fading and that he might need to seek non-party discovery from Ulster Bank, potentially undertaking to pay costs. The judge was not persuaded that memory concerns made a fair trial impossible: the guarantee had been in dispute since the proceedings began in 2011. The court said O’Connor could seek discovery from Ulster Bank on the same basis as others, and found that the prejudice did not warrant striking out the case.
The court dismissed the strike-out application, ordered that Promontoria pay its costs, and said it would discuss further case management with the parties. It described the plaintiff as being in “yellow card” territory and said vigorous case management should address the prospect of further delay. The ruling decided the delay application only; it did not determine the underlying guarantee claim.