The High Court has dismissed proceedings brought by Brendan Kirwan over property transactions in Wexford, finding that he had delayed in prosecuting the case and that the defendants faced significant prejudice.
Mr Justice Meenan ruled on 2 September 2019 that the proceedings, issued in 2013, should be dismissed for want of prosecution. The case concerned a 2006 property development transaction and allegations against the solicitors involved and the other defendants. The court’s ruling addressed delay and the fairness of allowing the claims to proceed; it did not determine the underlying allegations.
The judgment records that Eamonn Buttle advanced €1 million to Mr Kirwan in 2006 under a loan agreement. The loan was to be repaid if the sale contract ended or planning permission was secured. After the contract was terminated, Mr Kirwan acknowledged a €1 million debt in a 2009 letter and confirmed that €20,000 had been paid, leaving €980,000. The rights under the loan were assigned to Filbeck Limited, which obtained judgment for €980,000 in 2012 after no appearance was entered.
The 2013 case combined Mr Kirwan’s earlier claim for €3 million against Mr Buttle with objections to the 2012 judgment, and added claims against solicitors involved in the transaction. The judgment says the claim against the solicitors began as one in substance alleging professional negligence and later developed into allegations of fraud or forgery. The court recorded that the fraud or forgery claim was not included in the 2013 proceedings as issued. The allegations were not adjudicated in this ruling.
The court found that Mr Kirwan took no step to advance the 2013 proceedings after December 2013. It rejected his explanations that a request for particulars had gone unanswered and that he lacked his legal file. The solicitors said they had no record of receiving the request in 2014 and that a copy of the file had been sent to his then solicitor in 2010; the original file was returned to Mr Kirwan in 2017.
In balancing the interests of the parties, the judge cited the age of the events, diminished recollection, the retirement and ill health of one solicitor defendant, and reputational harm from the serious allegations. He also noted that Filbeck had been unable to enforce its judgment while the 2013 case remained unresolved. He found no culpable delay by the defendants and no personal or social circumstance that warranted allowing the case to continue.
The court granted both groups of defendants’ applications to dismiss the 2013 proceedings for want of prosecution. It did not decide what consequential orders should be made in the 2011 and 2012 proceedings, saying it would hear the parties on those matters.