The High Court has ordered the removal of a lis pendens registered over land at Boley View, near Gorey, after finding that the plaintiff’s delay in prosecuting his action was unreasonable.
In a judgment delivered on 25 February 2022, Ms Justice Nuala Butler granted an application by Boley View Owners Management Company Ltd under section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009. The order vacates the lis pendens arising from the plaintiff’s proceedings against the company.
The plaintiff issued plenary proceedings on 22 September 2020 and registered the lis pendens on 20 October 2020. By the time the company’s application was heard, more than 16 months later, the summons had not been served and no statement of claim had been issued or served. The company said it learned of the proceedings in December 2021 through title searches connected with a proposed sale of one of five houses in the development. The judge accepted evidence that the notice was preventing the sale from completing and causing potential financial consequences for the company.
The underlying dispute concerns the plaintiff’s former ownership of the development lands and their transfer to Joseph Doyle in 2009. The plaintiff alleges that €30,000 of an agreed €130,000 purchase price remains unpaid and that a separate agreement entitled him to €30,000 from the sale of each house. He also made allegations concerning the land’s description at sale and construction certifications. The judge did not decide those claims, noting that the proceedings were not before the court and that the allegations would be more appropriately addressed at a full hearing.
The company relied on both unreasonable delay and lack of bona fide prosecution. The judge found it unnecessary to decide the second ground. She held that the statutory test for vacating a lis pendens is whether prosecution has been unreasonably delayed; it does not require the separate “inordinate and inexcusable” delay analysis used when seeking to strike out proceedings. A person who registers a lis pendens has a particular obligation to advance the related action expeditiously and with a good reason for delay.
The plaintiff had been a lay litigant when he issued the proceedings, and his counsel referred to his limited financial resources. The judge said those circumstances did not provide a reasonable basis for issuing proceedings and registering a lis pendens without serving the summons. She also ruled inadmissible the plaintiff’s replying affidavit, filed ten days after the court’s deadline without a meaningful explanation. She considered its contents in the alternative and said her conclusion on delay would be the same.
The order removes the lis pendens but does not dismiss the plaintiff’s proceedings or decide the merits of his claims. The judgment noted that the plaintiff had not applied to renew the expired summons; any such application remained hypothetical.