The High Court has refused an application to strike out a woman’s claim to a house in Coolock, finding that the delay in advancing her case did not justify ending the proceedings.
In a judgment delivered on 27 April 2022, Ms Justice Nuala Butler dismissed the executor’s application under both the court’s inherent jurisdiction and Order 122, rule 11 of the Rules of the Superior Courts. The court also invited the parties to consider mediation under section 16 of the Mediation Act 2017. It did not decide the underlying property dispute or whether the alleged agreement was made.
The plaintiff says that in 2007 she and her husband, David Campbell, agreed with her mother, Margaret Ahern, that they would arrange and pay for an extension to Ahern’s home at 164 Greencastle Road and pay a further €170,000 in return for the property, subject to Ahern’s right to live there for life. The plaintiff claims they spent €154,000 on the works and paid a €10,000 deposit. She seeks specific performance or, alternatively, a declaration that she is entitled to a 50% beneficial interest. The executor disputes key parts of her claim and counterclaims that the works were defective.
The proceedings began in October 2013. Ahern died in February 2015, and the case was later reconstituted against her executor, who served a defence and counterclaim in February 2017. The last formal step before the delay application was the executor’s replies to particulars on 23 May 2018. The parties had discussed mediation, but it did not proceed. The executor said he believed all beneficiaries under Ahern’s will needed to cooperate.
The judge treated about four years of delay across two periods as inordinate, but found that much of it was excusable: time spent awaiting Ahern’s appearance, active discussions about mediation, and about two months of disruption during the initial Covid-19 lockdown. The remaining delay, just under 18 months, was not inordinate. The judge added that even if the delay were culpable, the balance of justice favoured allowing the claim to continue. Ahern’s death created difficulties for the defence, but those difficulties were not caused by the later delay and did not create a substantial risk of an unfair trial.
The court also refused the application under Order 122, rule 11, despite more than two years without a formal step. It said the mediation discussions were relevant to its discretion under that rule. The invitation to mediate was not an order requiring settlement. The judgment noted that an unreasonable refusal or failure to consider mediation after the invitation may be considered by the trial court when deciding costs.