The High Court has decided to strike out Barry and Rosaleen Kernan’s action against Bank of Ireland Group plc because of delay and want of prosecution. The ruling concerns the claim against the bank only; the judgment does not say the plaintiffs’ separate action against Paul Sweeney was struck out.
The Kernans allege that Sweeney, whom they said was acting for the bank, made fraudulent investment representations and mishandled their investments. They claimed losses exceeding €2 million, as well as damages for psychiatric injury. Sweeney denied fraud and said the investments were private decisions made by the first plaintiff after his own research. The bank’s liability, the court said, would depend on whether Sweeney acted fraudulently in the course of his employment.
The bank applied in November 2022 to strike out the claim against it. The court found that the alleged fraud came to the plaintiffs’ attention in 2012, but they did not start proceedings until March 2018. After the bank sought detailed particulars in May 2018, the plaintiffs did not reply until June 2023, after the strike-out application had been issued.
The judge held that the delay was both inordinate and inexcusable. He said the plaintiffs should have replied to the particulars, including by identifying questions they considered irrelevant or matters for evidence, rather than leaving them unanswered. The bank had not established specific prejudice: the court found no evidence that relevant witnesses were dead or unavailable, or that documents had gone missing.
However, the judge found moderate general prejudice because the case would depend on oral evidence about alleged representations, conduct and meetings, some dating back almost 20 years by the likely trial date. The court concluded that fading recollections would impair the bank’s ability to defend the claim. It also found no culpable delay by the bank and said the other proceedings involving the plaintiffs did not excuse the extent of the delay.
The court said it proposed to grant the bank’s requested reliefs. Because the judgment was delivered electronically, the parties were given two weeks to make written submissions on the final order, costs and related matters. The case was listed for mention on 15 May 2024 for final orders. The judgment does not state the final terms of those orders or the outcome on costs.