The High Court has refused an application to dismiss a claim against a guarantor for want of prosecution, despite finding that a significant period of delay was inordinate and inexcusable. The court concluded that the balance of justice favoured allowing the proceedings to continue.
Permanent TSB Finance Limited seeks summary judgment of €44,792.89 against James Maguire, the fourth-named defendant, under an alleged guarantee connected with a computer equipment lease to Orcona Limited, trading as Appleton Motors. The judgment records that Maguire was a director of the company at the relevant time. The lender alleged that he entered the guarantee around 27 February 2007 and that the company defaulted on lease payments around October 2008. Those matters were not determined in this application.
The proceedings began in June 2009, and Maguire entered an appearance in November that year. The lender took no step in the proceedings against him until January 2014, when it sought liberty to enter final judgment. The judge treated the relevant delay as just over four years and found that a significant portion—from November 2009 until judgment was entered against the other three defendants in November 2012—was both inordinate and inexcusable.
The lender said that delay in processing default judgments against the other defendants was unavoidable and that it had been reasonable to wait for those judgments before proceeding against Maguire. The court rejected both explanations. It said the lender’s legal representatives were responsible for correcting or explaining deficiencies in papers lodged with the Central Office, and that the lender could have proceeded against Maguire while the other defendants’ cases were pending.
The judge accepted a separate explanation for the period from November 2012 to January 2014. During that time, Maguire’s solicitors indicated that they would provide a substantive response and later asked the lender to hold off issuing a motion. The court considered that period excusable and gave some weight to Maguire’s inaction when assessing the balance of justice.
Maguire relied on his deteriorating health and financial circumstances as specific prejudice. The court found no evidence that his health would impair his defence and no evidence about his finances. It also found no demonstrated loss of a witness or evidence caused by the delay. Although some general prejudice could follow from delay, the court said it could not be assessed as significant or moderate. It noted that Maguire had not yet outlined a defence and that the claim appeared likely to turn largely on documents.
The judge refused the application to dismiss the proceedings “at this time”. The ruling addressed whether the claim should be dismissed for delay; it did not decide the underlying guarantee claim or the lender’s application for final judgment.