The High Court has dismissed proceedings brought by Brian Palmer against his brother Thomas Palmer and four companies, finding that years of delay in advancing the case were inordinate and inexcusable.
Mr Justice Meenan delivered the judgment on 31 January 2020. The case arose from a dispute over an alleged 2007 agreement concerning the sale of a public house and associated land in Kilternan, Co Dublin, and premises connected to a company identified in the judgment as Kapp and Peterson Limited.
The brothers had inherited majority shareholdings in the public house, known as the Golden Ball, and an attached carpark. The judgment said Brian Palmer alleged that under the agreement, the Kilternan site would be put on the market and he could exceed the highest bid by €10. He later bought the site after the highest bid reached €17.5 million. He alleged that Thomas Palmer then failed to put the company’s premises on the market as agreed, causing him financial loss.
The plenary summons, issued in February 2013, claimed damages including for breach of contract, negligent misstatement and fraudulent misrepresentation. It also included claims concerning Brian Palmer’s membership or directorship of several defendant companies. These were claims made in the proceedings; the court did not decide their merits.
No Statement of Claim was delivered. After the summons was issued, Brian Palmer was adjudicated bankrupt in July 2013 and discharged in September 2016. The judgment said the cause of action vested in the Official Assignee during bankruptcy. In a 2019 letter quoted by the court, the Official Assignee said he had decided not to pursue the proceedings. A Notice of Intention to Proceed was served in October 2017, but no Statement of Claim followed, including in draft form.
Applying principles governing dismissal for culpable delay, the judge considered the late start to the case, the repeated failure to deliver a Statement of Claim, the effect of time on witnesses’ recollections and the seriousness of the fraudulent misrepresentation allegation against Thomas Palmer. The judge acknowledged Brian Palmer’s medical and family difficulties but found they did not excuse the delay in these commercial proceedings. The dissolution of two defendant companies was also not an excuse for failing to deliver a claim.
The court concluded that the delay was both inordinate and inexcusable and that the balance of justice favoured dismissal. The proceedings were dismissed. The judgment did not determine whether the alleged agreement was breached or whether any of the pleaded allegations were true.