The High Court has dismissed Cabot Financial [Ireland] Ltd’s proceedings against the second defendant in a debt claim of about €2.5 million, finding that the plaintiff’s inordinate delay was inexcusable and that the balance of justice favoured dismissal.
Mr Justice Meenan delivered the judgment on 20 December 2021. The application was brought by the second defendant, who sought dismissal for want of prosecution and inordinate and inexcusable delay. The order dismissed the proceedings against him; it did not determine the underlying debt claim against the other defendants.
The proceedings began with a summary summons issued by Ulster Bank Ireland Ltd in November 2012. The claim against the second defendant arose from a guarantee dated 26 May 2006 and a loan facility of €2.386 million provided in January 2009. The plaintiff’s affidavit claimed that €2,515,133 was due as of 4 September 2012. Those were allegations in support of the claim, not findings on the debt.
The second defendant denied liability and said he signed the loan agreement and guarantee under duress and undue influence by his son, the first defendant. He argued that the bank had constructive notice of the undue influence and had failed to provide information or safeguards. The bank employee identified in his affidavit denied his account of the transactions. The court did not decide those disputed allegations; it considered the defence as part of its assessment of prejudice from delay.
The loan and guarantee were transferred first to Cabot Asset Purchases (Ireland) Ltd in 2016 and then to Cabot Financial in 2019. The judge said the litigation file and information had not been properly transferred to the plaintiff’s solicitors. The summary judgment motion had been adjourned on several occasions and was struck out for non-attendance in February 2016. The plaintiff later issued a second summary judgment motion in February 2021.
The judge rejected the plaintiff’s submissions that the second defendant had sought adjournments or failed to attend hearings. Correspondence and an affidavit from the defendant’s solicitor showed there was no basis for those assertions, including the claim that the defendant had failed to attend on 4 February 2016. The judge said speculation and invented facts had no place in legal submissions, and found the delay inexcusable.
In weighing the balance of justice, the court considered that a trial would require evidence about conversations said to have taken place many years earlier. The second defendant was 78, retired and had undergone heart surgery; the judge found that delay had caused sufficient prejudice and that he had not acquiesced in it.
The court ordered dismissal against the second defendant. The judge’s provisional view was that he was entitled to the costs of defending the proceedings to date and of the application, including reserved costs, with costs to be adjudicated if not agreed. The matter was listed for mention on 20 January 2022.