The High Court dismissed proceedings brought by EBS Building Society against James Healy and Margaret Healy, finding that the lender had delayed in pursuing a second case concerning the same mortgage dispute after an earlier claim against Margaret Healy was struck out for want of prosecution.
Mr Justice Clarke gave an ex-tempore ruling on 27 June 2007 and later set out his reasons in a written judgment. The application to dismiss was brought on behalf of Margaret Healy. EBS’s counsel agreed that if her case was dismissed, the proceedings against James Healy should also be dismissed. The court therefore dismissed the claims against both defendants for want of prosecution.
The earlier Circuit Court proceedings began in 1998. Margaret Healy was joined as a defendant in 2001, and the claim against her was struck out on 6 November 2003. EBS obtained an extension of time to file an appeal notice but never filed one. The High Court judge said the earlier claim against her remained struck out and could not in practice be reactivated.
EBS began the High Court case in March 2005. The dispute concerned a mortgage and a document that purported to record Margaret Healy’s consent under the Family Home Protection Act 1976. She had long maintained that she never met the solicitor said to have witnessed the document and had not received the relevant legal advice. Her defence and counterclaim relied on the contention that the consent was invalid. The judgment did not decide that underlying dispute.
Mr Justice Clarke accepted that delay in the second case, considered on its own, would not warrant dismissal. But he held that EBS had a particularly strong obligation to progress the case promptly because an earlier claim, identical in substance, had already been dismissed for inordinate and inexcusable delay. After the defendants’ pleadings were completed, no further steps were taken for almost a year before the dismissal application was brought.
EBS said it had been considering a possible claim against the solicitors involved in the mortgage. The judge considered that explanation of limited relevance and insufficient to excuse the delay, noting that EBS had known about the alleged consent problem for almost a decade. He concluded that the delay was inordinate and inexcusable and that the balance of justice favoured dismissal. The court did not determine the validity of the mortgage consent or the related dispute with the solicitors.