The High Court dismissed Start Mortgages DAC’s proceedings against the second defendant in a mortgage dispute, finding that the bank’s inordinate and inexcusable delay had caused serious prejudice and created a substantial risk of an unfair trial.
Ms Justice Power delivered the judgment on 7 April 2020. The proceedings began in 2010, brought by the bank’s predecessor against two defendants over a loan. After the case was sent for a plenary hearing, no steps were taken after November 2013 until the second defendant applied to have the claim dismissed in February 2019. The bank accepted that the delay was inordinate and offered no substantial excuse for it.
The second defendant argued that his share of a €1 million joint loan had been discharged through a refinancing arrangement after the defendants’ business partnership was dissolved and their properties divided. He said the unresolved claim had damaged his credit record, constrained his property business and caused stress and health effects. He also argued that the passage of time had made records and witnesses harder to obtain.
The bank disputed that it had agreed to release him from joint liability. It said the partnership division did not change the original loan contract and that the second defendant had not complied with a 2013 discovery order. It also argued that the claim could be brought again within the limitation period if dismissed.
The judge found the defendant’s failure to provide discovery did not amount to culpable acquiescence in the delay. She considered that the bank had been reviewing his account of the loan division in late 2013 and appeared to have paused the proceedings without informing him. The court found that the delay had caused significant personal, professional and procedural prejudice, including likely loss of records and difficulty securing evidence from relevant witnesses.
The court did not decide whether the loan was secured by a mortgage, whether the bank could rely on a 12-year limitation period, or whether the second defendant had been released from liability. Those issues were left for a trial judge if the case proceeded. The court also gave little weight to the possibility that the bank might issue fresh proceedings.
Applying the balance-of-justice test for dismissal due to delay, the judge concluded that the delay created a substantial risk of unfairness at trial. She granted the application and dismissed the proceedings for want of prosecution and inordinate and inexcusable delay. The judgment does not determine the underlying loan liability.