The Court of Appeal has dismissed John Kelly’s appeal against a High Court decision allowing Cave Projects Limited’s claim for repayment of loan facilities to proceed. The court affirmed the High Court order and directed that its finding about Kelly’s credibility in the dismissal application cannot be referred to or relied on at trial.
The claim stems from facilities advanced by Bank of Ireland to a partnership that included Kelly to acquire land. The bank demanded repayment in January 2011 and began proceedings the following month, seeking €11,785,543. Cave acquired the loans and related security in January 2013. The case against Kelly and another defendant remains; proceedings against three other defendants were discontinued after settlements.
Kelly sought to have Cave’s claim against him dismissed for want of prosecution and delay. The High Court refused that application in January 2021. On appeal, Cave accepted that some delay had occurred but argued the claim should proceed. Kelly challenged the assessment of delay and prejudice and complained about the High Court judge calling him to explain an affidavit statement concerning the earlier settlements.
The Court of Appeal assessed 18 months of inordinate and inexcusable delay, after allowing six months for efforts to locate a witness needed for trial. It held that the delay was at the lower end of the spectrum and Kelly had not shown concrete prejudice caused by it. No relevant unavailable witness or lost document was identified. The court also considered Kelly’s own contribution to the overall delay, including his failure to reply to Cave’s 2016 request for particulars until February 2022, and that the action was listed for trial.
The court rejected Kelly’s challenge to the judge’s power to call him to explain the affidavit and his claim of procedural unfairness. It said the judge was entitled to seek an explanation where the affidavit appeared to conflict with an earlier affidavit exhibited in the proceedings. However, the appeal court reached its conclusion on the dismissal application without relying on the High Court’s finding that Kelly had been untruthful.
The appeal was dismissed and the High Court order affirmed. The court provisionally indicated that Kelly should pay the appeal costs, with no order for costs on Cave’s cross-appeal. Those costs views were subject to a possible request for a hearing within 14 days. The claim itself was not decided: the Court of Appeal allowed it to proceed to trial.