The High Court has refused an application by the second-named defendant in a €11.8 million debt case to strike out proceedings for want of prosecution or delay.
Mr Justice Meenan ruled on 20 January 2021 that the delay was inordinate but was either excusable or acquiesced in by the defendant. He said that even if the delay had been both inordinate and inexcusable, the balance of justice did not favour granting the relief sought.
Cave Projects Limited’s proceedings seek recovery of a debt of €11,785,543.11 against the second and fifth defendants. The plaintiff alleges the loan became repayable on 31 January 2008. The summary summons was issued in February 2011 by the Governor and Company of the Bank of Ireland. The loan was later acquired by NALM and then purchased by Cave Projects, which was substituted as plaintiff in 2013. The claim against the first, third and fourth defendants was discontinued after settlements.
The case was remitted to a plenary hearing after the High Court refused the plaintiff’s application for summary judgment in January 2015. The judge identified periods of inactivity, including about 11 months between November 2015 and October 2016. He said no obvious explanation had been given for that period. The plaintiff also faced difficulty locating a retired former Bank of Ireland employee whose attendance it said was needed; it confirmed the witness’s attendance in November 2018.
The second defendant argued that settlement with the other defendants had prejudiced his defence because they would no longer be available to give evidence and be cross-examined. In an earlier affidavit supporting the summary judgment application, however, the plaintiff’s solicitor had set out that the three defendants settled for €100,000 each and agreed to transfer interests in identified lands to Cave Projects. The affidavit and settlement documents had been served on the second defendant.
Justice Meenan found that the second defendant’s statement that he did not know the settlement terms was untruthful. After directing him to give evidence and hearing his explanation, the judge found it fell well short of credible. He concluded that the balance of justice could not favour the requested relief and refused the application.
The ruling concerned the application to strike out the proceedings. It did not determine the underlying debt claim, which remains for plenary hearing.