The High Court has refused an application by a company in liquidation to renew an unserved summons in a claim against Irish Bank Resolution Corporation Limited (IBRC) and the Governor and Company of the Bank of Ireland (BOI).
In a judgment delivered on 3 October 2016, Mr Justice Noonan also considered an application to lift the statutory stay on proceedings against IBRC. He refused the application to renew the summons, finding that the plaintiff had not shown a “good reason” for its failure to serve it. The judgment does not record a separate ruling on lifting the stay.
The company, Darjohn Developments Limited, alleged that a cheque for €136,206.09 drawn by its solicitors on an account with BOI in December 2007 was altered when presented for payment. The judgment says the payee was allegedly changed from the plaintiff to Anglo Irish Bank Corporation, IBRC’s former name, and BOI paid the cheque to that bank. Darjohn alleged that the defendants converted the cheque without authority. Those allegations were not determined in this application.
A liquidator was appointed to Darjohn in December 2009. The court gave leave to bring proceedings in November 2012, and a plenary summons claiming damages on several grounds was issued on 30 January 2013. It was not served on either defendant.
The plaintiff’s solicitor initially cited uncertainty over the statutory stay imposed after a special liquidator was appointed to IBRC in February 2013, as well as the liquidator’s illness and other liquidation work. In a later affidavit, however, the solicitor said the liquidator had been advised that pursuing the claim against IBRC might yield little because the company would rank as an unsecured creditor. The liquidator later changed course after information suggested a fund might be available to meet claims against IBRC. Instructions to seek relief were given in December 2013; the first application was not made until June 2015.
Justice Noonan said the evidence showed that the proceedings were left unpursued because the liquidator considered them not worthwhile, then revived when circumstances appeared more favourable. He held that deliberately leaving a summons unserved for that reason was not a good reason under Order 8 of the Rules of the Superior Courts. The court refused renewal. The judgment states that without proceedings, the claim would have become statute-barred on 23 December 2013; it did not decide the merits of the cheque claim.