The High Court has refused an application by the Governor and Company of the Bank of Ireland to strike out Liam O’Brien’s proceedings over three investments, despite finding that his delay in pursuing the case was inordinate and inexcusable.
Mr Justice Charles Meenan, in a judgment delivered on 23 June 2023, said the bank had not established even a low level of prejudice that would warrant dismissing the proceedings. The court therefore dismissed the bank’s application. It did not decide the underlying allegations of negligence or breach of contract.
Mr O’Brien alleges that the bank breached its duties in its customer-banker relationship with him. He says he relied on representations, warranties and advice concerning three investments and suffered significant losses. Those claims remain allegations.
The proceedings began with a plenary summons issued on 12 July 2013. It was served on the bank on 7 July 2014, and the bank entered an appearance in December 2014. Mr O’Brien served his statement of claim in January 2017. After he sought judgment in default of defence, the bank delivered its defence on 13 August 2018. The judgment records no further step by Mr O’Brien until a notice of intention to proceed in November 2021.
The bank applied in January 2022 to dismiss the claim for inordinate and inexcusable delay or, alternatively, for want of prosecution. Mr O’Brien had attributed delay in the proceedings to contact and negotiations aimed at resolving the dispute and an attempt to arrange mediation. The judge said there was no suggestion that he had refrained from taking procedural steps because of any representation by the bank that he should do so. The bank’s delay in delivering its defence, the judge said, was much less than the plaintiff’s delay.
On prejudice, the bank’s solicitor said the passage of time and staff turnover might make it difficult to find witnesses. The judge noted that Mr O’Brien had identified an individual whom he said provided financial advice on the bank’s behalf. The bank had not shown that this person was unavailable or unable to give evidence. A general assertion that witnesses might be difficult to find was therefore insufficient to strike out the case.
Although Mr O’Brien defeated the application, the judge’s provisional view was that the costs should be reserved to the trial because of his inordinate and inexcusable delay. He allowed either party to make written submissions on costs by 14 July 2023 and said the matter would be listed for final orders on 21 July 2023. The judgment does not state the final costs order.