The High Court has refused James Guerin’s application to dismiss Allied Irish Banks plc’s claim for want of prosecution, finding that although AIB’s delay was inordinate and inexcusable, the balance of justice favoured letting the case proceed to a plenary hearing.
Mr Justice Eagar said AIB was responsible for a lengthy period of delay, mainly because its former solicitors failed to transfer the case papers to the firm that replaced them. AIB accepted responsibility for its agents’ failure. The court also found substantial delay by Mr Guerin, including delays in filing a replying affidavit and defence, and conduct it considered amounted to acquiescence in delay in the proceedings, though not in AIB’s delay.
AIB issued a summary summons in April 2007. The case was later sent to a plenary hearing, and Mr Guerin delivered replies to particulars in January 2013. His dismissal motion was issued in February 2016. His counsel identified two periods of alleged AIB delay: from Mr Guerin’s defence in December 2010 until AIB sought particulars in February 2012, and from the replies to particulars in January 2013 until the dismissal motion.
Mr Guerin argued that the delay prejudiced him. His counsel said a fire following an explosion had destroyed documents and notes relating to the case, and that the proceedings had harmed his credit rating, access to funding and reputation. AIB’s counsel accepted that the delay linked to the change of solicitors was inordinate and said the court could find it inexcusable, but argued that Mr Guerin’s own conduct and other factors meant the case should continue.
The court noted an unchallenged affidavit from AIB’s Conor McGillion stating that AIB had not reported the debt or proceedings to a credit rating agency. The court also noted that records of Mr Guerin’s AIB business were retained by the bank and could be sought, and that no evidence of publicity about this case had been produced. It considered that other reported judgments against Mr Guerin and his wife might account for reputational harm described to the court.
Applying the principles for applications to dismiss proceedings for delay, Mr Justice Eagar refused the relief sought in Mr Guerin’s motion. He directed that AIB’s claim proceed by plenary hearing, which the judgment said was fixed for 13 October 2017. The court did not decide the underlying claim in this ruling.