The High Court has struck out proceedings over an alleged unpaid €125,000 loan and an alleged solicitor’s undertaking, finding that the plaintiff had caused inordinate and inexcusable delays in pursuing the claims.
Mr Justice Twomey delivered the judgment on 22 January 2021. The court considered applications by Brendan Foran and solicitor Nevan O’Shaughnessy to dismiss the proceedings for want of prosecution. The claims against them were not tried, and the court made no finding on whether the loan was owed or the undertaking was breached.
Niall Dempsey claimed that in September 2006 he lent €125,000 to Mr Foran and Des Rushe to fund a property purchase in Edenderry, County Offaly. He said the loan, plus compound interest at 10%, was due within a month and that €10,000 had been repaid, leaving €115,000 unpaid. He also alleged that Mr O’Shaughnessy undertook to hold title documents on trust until the loan and interest were repaid. Mr O’Shaughnessy’s defence was that the undertaking depended on receiving the title deeds, which he said never happened.
The proceedings were issued in November 2010, about four years after the alleged cause of action arose. The court found that Mr Dempsey then allowed lengthy periods to pass without progressing the case. Among the delays, he took four years to act after Mr O’Shaughnessy delivered a defence in 2012, and about 18 months to provide discovery requested in 2016. Mr Foran did not deliver a defence until June 2018, after missing court-imposed deadlines; the judge attributed up to two and a half years of the delay to Mr Foran, but found at least four years of the delay against him was Mr Dempsey’s responsibility.
The court accepted that some later delay related to defendants’ discovery and mediation discussions. It also found that the defendants’ failure to respond to requests to set the case down for trial contributed to delay. But those matters did not outweigh the earlier periods of delay, which the court held were inordinate and inexcusable. It concluded that the long interval between the events and a potential trial was itself sufficient prejudice; the defendants did not have to separately establish that a fair trial had become impossible.
Mr Dempsey argued that the claim against Mr O’Shaughnessy involved an alleged continuing breach of an undertaking and the High Court’s supervisory role over solicitors. The judge rejected this as a reason to let the case continue, stating that a solicitor was entitled to have allegations resolved within a reasonable time. The judgment also discussed the financial disadvantage defendants may face when suing an impecunious plaintiff, but expressly said it was not suggesting that Mr Dempsey’s claim was invalid or an attempt at blackmail.
Finding no sufficient countervailing circumstances, the court ordered the proceedings against Mr Foran and Mr O’Shaughnessy struck out. It asked the parties to address any outstanding matters between themselves; if they could not, the case was to be listed for mention on 29 January 2021 at 10.45am.