The High Court has ruled that Everyday Finance DAC’s proceedings against three defendants over a loan should be struck out because of inordinate and inexcusable delay. The court’s decision addressed an application by the second and third defendants; it did not determine the underlying dispute about the loan agreements.
Ms Justice Marguerite Bolger said the bank had allowed about eight years to pass between issuing proceedings in November 2013 and seeking to set the case down for trial again in 2021. The proceedings began by summary summons, relying on a 2009 letter of sanction. The court refused the bank’s 2014 request to enter the Commercial List and sent the case for plenary hearing because triable issues had been identified.
The defendants’ pleaded position was that the 2007 loan agreement was the only agreement governing the loan and that bank officials had told them their liability was limited to the development site, rather than their other assets, including their family farm. They also denied signing the 2009 letter. The bank disputed their account in its pleadings and challenged the denial of the signatures in an affidavit. The judge noted that a later affidavit identifying the branch manager said to have made the 2007 representations went unanswered, leaving those sworn statements unchallenged on affidavit.
The judge found the bank’s explanations for its delay unpersuasive. They included insolvency and bankruptcy proceedings involving the first defendant and alleged settlement discussions in 2019 and 2020. She was not satisfied that the correspondence showed both sides were engaged in settlement discussions. A reference by the third defendant to a possible complaint to the Financial Services Ombudsman did not excuse the delay; no complaint was made.
In assessing the balance of justice, the judge said oral evidence would be needed about the 2007 agreement and the bank’s claim that a further agreement was made in 2009. The original 2009 agreement was unavailable, and the parties had identified no further documents about the circumstances of either agreement. A trial in 2024 would take place many years after those events, making witness evidence more fragile, particularly given the lack of supporting documents. The judge also considered the defendants’ experience of having the case hanging over them and the second defendant’s serious health difficulties following an accident.
The judge concluded that the balance of justice favoured striking out the proceedings. Her indicative view was that the defendants should receive the costs of the application and the proceedings, subject to adjudication if the parties could not agree. She scheduled a mention for 6 March 2024 to hear submissions on costs and final orders. The judgment therefore records the decision to strike out for delay, while leaving costs and final orders for that later hearing.