The High Court has ordered the cancellation of a lis pendens registered over a property after finding that proceedings supporting it had not been served on either defendant nearly 19 months after they were issued.
In an ex tempore judgment delivered on 18 April 2023, Ms Justice Eileen Roberts granted an application under section 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009. She dealt with the motion as an application by the first named defendant, Start Mortgages Designated Activity Company, which had entered an appearance and was directly affected by the entry on the property’s folio.
The plaintiff, James McQuaid, issued proceedings on 21 September 2021 and registered the lis pendens two days later. It was entered on the property’s folio on 8 October 2021. The defendants’ motion to vacate was issued on 30 August 2022 and heard on 17 April 2023. The court had no evidence that the summons had been renewed or when service might take place.
Justice Roberts said a party who registers a lis pendens must prosecute the related proceedings with particular expedition, while noting that no fixed period automatically makes delay unreasonable. In this case, she found that the failure to serve the summons after almost 19 months, alongside the prospect of further delay, justified vacating the entry.
McQuaid’s affidavit said the proceedings had not advanced as he wished because he could not find a legal team to instruct. The judge said this did not justify the delay, particularly as solicitors had been on record who could have accepted service. She also rejected the suggestion that he needed details of the debt to prepare an affidavit before serving the summons.
The plaintiff’s counsel raised concerns about hearsay in an affidavit for the first defendant, uncertainty over which bank terms and conditions had been accepted, and the second defendant’s dealings with tenants. The judge said those matters did not determine whether there had been unreasonable delay, though they might relate to other questions, including the receiver’s appointment or actions.
The order vacates the lis pendens. Cancellation on the relevant registers is to follow lodging an attested copy of the order with the Central Office and the subsequent certificate process. The court gave liberty to apply if difficulties arise. It made no order striking out the proceedings; that relief was not advanced at the hearing. The judge said the first defendant should be entitled to costs, but deferred a decision and said she would hear the parties on costs and any other issues.