The High Court has decided to strike out Bank of Ireland’s claim against a second defendant in summary proceedings over a loan of about €1.3 million, finding that the bank’s delay in pursuing the case was inordinate and inexcusable.
Mr Justice Barr said the relevant delay ran from service of the summons in December 2013 to the second defendant’s motion in February 2017, a period of three years and two months. The court found that the bank had taken no step to prosecute the summary proceedings during that time.
The bank said it had allowed the first defendant time to improve his financial position and reduce his overall debts, and had also cited a second mortgage arrears resolution process and efforts to reinstate a charge over a Wicklow property. The judge rejected those explanations. He said the bank could not unilaterally put the action on hold without informing the second defendant and obtaining her consent or seeking directions from the court. The proceedings had been brought by summary procedure, which should be progressed promptly.
The judge treated an earlier period differently. The summons was issued in June 2012 and served in December 2013 after negotiations between the parties ended without agreement. The court found that delay excusable, noting that the second defendant had welcomed the bank’s decision to hold off while negotiations were under way.
In considering the balance of justice, the court accepted that the second defendant had suffered prejudice. Her claim for an indemnity or contribution from the first defendant depended on a disputed agreement about how property and loan proceeds would be handled, with the parties’ competing accounts potentially requiring oral evidence. The judge also pointed to a mortgage the first defendant had granted over a property in Haddington Terrace and his later marriage to the mortgagee, which meant the property had become a family home.
The court said it would make an order striking out the bank’s action against the second defendant for want of prosecution. It gave the parties six weeks to submit written arguments on the final order, costs and other matters. The judgment did not determine the underlying loan liability or the disputed agreement between the defendants. It also said the court would consider deferring a final order if the parties pursued mediation; no formal mediation invitation was made.