The High Court refused John and Bronagh Walsh’s application to dismiss a property case brought by Promontoria (Arrow) Limited, finding that the plaintiff was not in delay because the defendants had never required it to deliver a statement of claim.
Mr Justice Allen gave judgment on 1 October 2019. The Walshes had asked the court to dismiss the proceedings for inordinate and inexcusable delay. They also sought dismissal for want of prosecution, but that ground was not argued.
The case began in September 2014, when the then plaintiff, National Asset Loan Management Limited, sought to set aside a 2008 conveyance from John Walsh to Bronagh Walsh and a mortgage granted by the couple to First Active plc. The claim alleged that the deeds were fraudulent. Promontoria, which had taken an assignment of certain loans and related security, was substituted as plaintiff in March 2016.
The summons was served in September 2015. The defendants entered an appearance, but neither requested a statement of claim. By the time the dismissal motion was heard, nearly five years had passed since the summons issued and nearly four years since service, and no statement of claim had been delivered.
The Walshes said the summons did not explain the basis of the claim, leaving them unable to identify witnesses they might need. John Walsh’s affidavit also described distress, anxiety and reputational harm, and said Bronagh Walsh had been unable to deal with the property. The plaintiff relied on negotiations between the parties from 2016 to 2017, but the judge noted that these did not explain the absence of a statement of claim before or after that period.
The judgment records that the plaintiff’s alleged creditor-avoidance case concerned Tinnahich, while the property securing the Anglo Irish Bank loan was Silverstream. The judge said the properties were distinct. He also observed, obiter, that Tinnahich had not secured the loans assigned to Promontoria, so the plaintiff could not treat its claim concerning that property as enforcement of secured-creditor remedies.
The judge held that, under the applicable court rules, a plaintiff need not deliver a statement of claim unless the defendant requests one. Since the Walshes never made that request, Promontoria had not failed to do something it was required to do and could not be said to have delayed in delivering the document. The application was refused on that basis. The court did not dismiss the underlying proceedings or determine the merits of the alleged fraudulent conveyance.