The High Court ordered the removal of three lis pendens registered against the Whitegates Hotel property in Killarney, finding that the plaintiffs had unreasonably delayed in pursuing their proceedings. The order did not decide whether the alleged agreement existed or whether the first defendant had agreed to it.
In a judgment delivered on 24 June 2021, Ms Justice Siobhán Stack granted the first defendant’s application under section 123 of the Land and Conveyancing Law Reform Act 2009. The notices were registered as burdens on folios 29383F, 22306F and 22680F in County Kerry. The court said the first defendant was entitled to have them vacated because of unreasonable delay in prosecuting the action.
The plaintiffs’ claim concerns an alleged 2018 agreement involving the first and second defendants. As pleaded, an earlier loan made by the plaintiffs to the second defendant was to be restructured, with the hotel property sold within 120 days to help secure repayment of a reduced sum. The plaintiffs sought a declaration that the property was subject to an equitable charge for the amount outstanding. The first defendant disputed being party to any such agreement. The judge said she did not need to determine that dispute on this application.
The second defendant, identified in the judgment as the first defendant’s father and the second plaintiff’s brother, had never been served. The judge found the plaintiffs had decided not to pursue service because he was making payments. She noted there was no evidence he was evading service and that the account of a summons server attending his business did not show that service had been attempted at his home.
The court also cited delays in advancing the case against the first defendant. After his defence and counterclaim were delivered in October 2019, he asked the plaintiffs to set the matter down for hearing in December and served a notice of trial in January 2020. The plaintiffs did not appear to respond. In July 2020, they said discovery remained outstanding, but the judge found no steps had been taken to progress discovery. The application to vacate the notices was issued in November 2020, and the plaintiffs’ first replying affidavit was sworn shortly before the March 2021 return date.
The first defendant also raised a subsidiary argument about whether the alleged equitable charge met statutory requirements for a written instrument. The judge declined to decide the application on that basis, citing how the issue had been raised and the possibility of further material being produced. The court made no determination on the validity of the alleged charge. It listed the matter for an early hearing to address the costs of the application.