The Supreme Court has allowed appeals by Lismore Builders Limited and Lismore Homes Limited against the dismissal of their claims over a property development at Weston Park, Newcastle, Co. Dublin. The claims will stand dismissed unless the companies meet conditions set by the court, including serving compliant statements of claim within three weeks.
In a judgment dated 8 February 2013, Mr Justice MacMenamin said the High Court had dismissed both companies’ claims in 2006 for inordinate and inexcusable delay. The Supreme Court held that the delay was excusable in the circumstances and that the High Court had made material errors, including placing the burden of explaining delay on the companies rather than on the defendants seeking dismissal.
The companies allege that Bank of Ireland Finance Limited, after consulting Deloitte Haskins and Sells, agreed to provide additional finance for the development. They claim the bank and Deloitte improperly managed the companies’ affairs and that the bank appointed a receiver without justification, causing substantial losses. These allegations remain untested; the Supreme Court stressed that any observations on the claims were tentative and based on prima facie material.
The court reviewed a lengthy procedural history, including appeals and stays, security-for-costs proceedings, and the parties’ disputes over combining the two cases. It said substantial periods were spent awaiting decisions in the court system and could not simply be counted as delay attributable to the companies. The court also noted that the bank did not deliver its defence in the Builders action until June 2002 and Deloitte had not delivered a defence.
The court criticised aspects of the companies’ conduct, including attempts to serve combined pleadings without leave. But it concluded that striking out the claims outright would be too severe. The companies had paid security for costs, including €253,947.62 lodged for the bank and Deloitte in February 2002. The court also observed that the defendants had difficulty showing actual prejudice from unavailable witnesses.
The Supreme Court’s order makes the dismissal conditional. The companies must serve statements of claim compliant with the Rules of the Superior Courts, limited to 15 pages each, within three weeks. The defendants must file defences within three weeks of receiving them. The parties must provide particulars and complete discovery within three months after the defences are filed. The claims must remain within the original allegations, though they may be particularised; the companies cannot add further claims.
The court directed an early application to the President of the High Court or a nominated judge to supervise compliance, manage the cases and set hearing dates. Failure to meet the pleading deadlines may lead to further orders, including removal of the stay on dismissal.