The High Court has refused Vincent Kelly and Claire Collins’ application to dismiss Bank of Ireland’s claims over alleged delay in progressing proceedings concerning four loans and related properties in County Cork.
In a judgment delivered on 17 April 2015, President of the High Court Kearns refused the defendants’ motion. They had sought dismissal for want of prosecution or, alternatively, under the court’s inherent jurisdiction on grounds of inordinate and inexcusable delay or abuse of process.
The bank’s proceedings seek judgment for sums it alleges are due, with interest, and possession of the relevant properties. The four loan agreements were entered into between 2005 and 2008. Three were made with Kelly, and one, for €1.6 million, was jointly taken out by Kelly and Collins. The proceedings were consolidated in February 2011. The defendants filed a defence and counterclaim the following month, and the bank replied in April 2011.
The defendants argued that about three years passed without a formal step in the case before the bank served a notice of intention to proceed in April 2014. They said the delay was inexcusable and prejudicial, citing accruing interest and the risk that oral evidence would be affected by the passage of time. Collins’ counsel also argued that the bank’s dealings with Kelly did not establish engagement with Collins, who was connected to only the jointly borrowed loan.
The bank disputed that the period was inactive. It said it sought particulars, pursued discovery, and made efforts to negotiate a settlement. It also argued that delays arose while the defendants’ solicitor struggled to obtain instructions and later applied to come off the record. The bank said the defendants had not identified witnesses whose evidence would be compromised.
The court said a period of about three years could be inordinate if there had been no activity, but found that was not the case here. It accepted that the bank had taken steps, that the defendants had at times failed to meet procedural requirements, and that difficulties obtaining instructions had hindered progress. It also accepted that the bank made genuine efforts to compromise the proceedings and found Kelly had acted for Collins, with her permission, in dealings with the bank.
On prejudice, the judge found no evidence that a relevant witness would be compromised by the passage of time. The defendants had continued to have the benefit of the properties, the judgment said. The court refused the motion. It did not determine the underlying claims for repayment or possession, which may proceed.