The High Court has refused an application to strike out a dispute between two brothers over a deed concerning the division of a family farm in County Cork, finding that delay in the proceedings was not inordinate and inexcusable.
In an ex tempore judgment delivered on 17 February 2017, Mr Justice Twomey said the plaintiff should be allowed to have his case heard. The court did not decide whether the 1995 deed should be set aside or determine the brothers’ underlying dispute.
The plaintiff issued proceedings in December 2007, claiming the deed should be set aside on grounds of non est factum and misrepresentation. He said he learned of its import in late 2006 and discovered its true meaning in August 2007 from the solicitor who prepared it. The court found the delay before proceedings began was not a basis to strike out the case.
The defendant had pleaded delay in a defence filed in 2010, but did not bring the strike-out motion until July 2016. The court considered the period after the defence was filed, including the plaintiff’s attempt to arrange mediation and later proposals to have the case heard in the Cork Circuit Court to reduce legal costs.
The plaintiff proposed mediation in 2012 and sought an adjournment to facilitate it in 2013. That motion was struck out without an order for costs after the judge hearing it considered an adjournment fruitless if the defendant was unwilling to mediate. Mr Justice Twomey said the attempts were bona fide and should not count against the plaintiff in the strike-out application.
The plaintiff then proposed remitting the case to the Circuit Court. The judgment records that the defendant did not give a substantive response to repeated approaches over an extended period. The High Court regarded that conduct as foot-dragging and took it into account when assessing the delay. The defendant brought the strike-out motion weeks after the plaintiff said he would seek a trial date.
The court also said that, even if the delay had been inordinate and inexcusable, it did not consider the defendant had suffered significant prejudice. Both brothers’ affidavits showed vivid recollections of the events, and the plaintiff was not pursuing an allegation that the defendant’s late wife had misrepresented the deed. The solicitor involved in the transfer had retired, but the court did not consider that a significant prejudice to the defence.
The judge noted an arguable point raised by the defendant: an unstamped and unregistered 1988 deed in similar terms might affect whether the plaintiff could achieve his desired division of the farm even if the 1995 deed were set aside. The court expressly made no finding on the merits and encouraged the parties to consider resolving the dispute without further High Court litigation.