The High Court struck out Manhattan Design Furniture Limited’s action against two guarantors of a commercial lease, finding that the company’s seven-year delay in progressing the proceedings was inordinate and inexcusable and had caused moderate prejudice.
Mr Justice Barr’s judgment, delivered on 18 September 2020, concerned an application to discharge a Master of the High Court’s order of 15 October 2019, which had dismissed the action against the second and third named defendants for want of prosecution. The judge refused to allow the claim against those defendants to continue and ordered it struck out. The ruling did not decide the underlying debt claim or the action against the other defendants.
The company claimed that €132,567, plus interest, was owed by the guarantors under a lease of premises at 48 Roches Street, Limerick. The lease began in November 1999 and ran for 15 years. The first defendant, Bijou Beauty Limited, had operated a beauty salon there. The second, third and fourth defendants were directors of that company and had signed as guarantors.
The first defendant stopped paying rent in November 2008 and wrote to the company in February 2009 saying it would cease trading from the premises. The company issued its plenary summons on 13 December 2011. The court found no pre-commencement delay, noting that the first defendant had asked the company to hold off taking action. But after issuing proceedings, the company did not take effective steps to progress them for more than seven years. Attempts in 2013 and 2015 to obtain judgment in default were unsuccessful because the supporting proofs were not in order. The company’s current solicitor could not explain the subsequent delay.
The company argued that the defendants had not entered appearances or requested a statement of claim, so it was not culpable for delay. The judge rejected that argument, finding there had been no agreement or acquiescence that the proceedings would remain inactive. He found the delay both inordinate and inexcusable.
The defendants said company records and photographs had been lost, and that time had diminished their ability to recall events and give evidence about the premises’ condition. The company argued that disrepair was not a defence because the tenant had a repairing obligation, and that the missing records were the defendants’ responsibility. The judge found that the alleged condition, including rats coming through the walls, could arguably fall outside an ordinary repairing covenant. He also found the missing records impeded the defendants’ response to the claim for insurance premiums, including whether a formal demand had been made.
Finding that the defendants had shown moderate prejudice and had neither caused nor acquiesced in the delay, the judge concluded that the balance of justice favoured striking out the action against the second and third defendants for want of prosecution.