The High Court dismissed Declan and Una Kehoe’s proceedings against Promontoria (Aran) Limited and receiver Ken Fennell for want of prosecution, finding that a 37-month delay was inordinate and inexcusable. It also ordered the lis pendens registered over a property in Tralee, Co. Kerry, vacated.
Mr Justice Twomey’s judgment of 11 August 2021 concerned the defendants’ application to strike out the claim and vacate the lis pendens. The plaintiffs’ separate application to renew their plenary summons was listed alongside the defendants’ motion. The court directed that application be made on notice; the judgment’s final orders dismiss the claim and vacate the lis pendens.
The proceedings were issued on 20 March 2018. Six days later, the plaintiffs registered a lis pendens over 9 Beenoskee, Cloghers, Tralee. The summons was not served during its original period, and the defendants said they first learned of the proceedings in September 2020 through a court website search. The judgment records that, apart from a change of solicitor and notice of intention to proceed in August 2020, the plaintiffs took no steps to advance the case until applying to renew the summons in May 2021.
The plaintiffs’ claim included challenges to Promontoria’s authority to make final demand on loan facilities and to the validity of Fennell’s appointment as receiver. The plaintiffs’ solicitors cited a change of solicitor and engagement with Ulster Bank’s complaints process in 2018 and 2019 as explanations for the delay. The court found those explanations insufficient: the plaintiffs gave little detail about the engagement, it did not explain the later delay, and Ulster Bank was not a defendant in these proceedings.
Applying the delay principles in *Primor plc v. Stokes Kennedy Crowley*, the court found the delay both inordinate and inexcusable. It held that the balance of justice favoured dismissal, citing the length of the delay and the defendants’ inability to realise their security while the lis pendens remained registered. The court also concluded that the delay independently justified vacating the lis pendens under section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009.
The court ordered the lis pendens on the County Kerry folio vacated and dismissed the plaintiffs’ claim. It asked the parties to try to agree on outstanding matters; if necessary, the case was to be listed for mention on 12 October 2021.