The Court of Appeal has dismissed proceedings brought by Patrick and Carmel Barrington and Eco Plastics Limited against ACC Loan Management DAC, ruling that the plaintiffs’ prolonged failure to advance the case significantly prejudiced the lender’s ability to defend it.
In a judgment delivered on 7 February 2018, Ms Justice Máire Whelan allowed ACC Loan Management’s appeal from a High Court decision refusing to dismiss the proceedings for want of prosecution. The order dismisses the proceedings; the court did not determine the underlying claims on their merits.
The plaintiffs issued a plenary summons on 26 March 2008, seeking damages for alleged breach of agreements, misrepresentation and negligence, among other claims. They also sought specific performance of obligations said to arise from two agreements dated 21 April and 31 May 2006. ACC entered an appearance on 30 April 2008. By the time it applied to dismiss the case in July 2016, no statement of claim had been delivered and, according to the judgment, the plaintiffs had taken no meaningful step to progress the proceedings since 2008.
The High Court accepted that the delay was both inordinate and inexcusable but found the balance of justice favoured allowing the case to continue. ACC challenged that conclusion, arguing that former employees who could address the claims had left, witnesses might be difficult to locate, and the claims depended substantially on conversations and recollections from years earlier.
Carmel Barrington’s affidavits referred to difficulties prosecuting the case, including serious family health issues, and said the plaintiffs had reached a settlement with the second defendant in 2011. A statement of claim was delivered on 8 March 2017, after ACC’s dismissal application. The Court of Appeal said the affidavits did not provide a cogent explanation for the sustained delay or establish why the claim could not have been particularised earlier.
Justice Whelan also considered that the plaintiffs had sought specific performance, which required them to proceed with appropriate diligence. She found that ACC had not acquiesced in the delay and had reasonably understood, after the settlement with the second defendant and the plaintiffs’ subsequent inaction, that the claim against ACC had been abandoned.
The court concluded that the lengthy failure to deliver a statement of claim, changes to ACC’s workforce, the apparent reliance on oral evidence and the lack of a sufficient explanation together tipped the balance of justice decisively in ACC’s favour. It allowed the appeal and dismissed the proceedings for want of prosecution.