The High Court has refused a bid by EBS Building Society to dismiss a claim brought by the personal representatives of Teresa Lambiotte Costello over £100,000 said to have been entrusted to a former EBS agent.
In a judgment delivered on 1 February 2013, Ms Justice Iseult O’Malley found that the delay in progressing the case was inordinate, but not inexcusable. She refused EBS’s application to dismiss the proceedings. The ruling addressed only whether the claim should be dismissed for delay; it did not decide whether EBS was liable for the alleged loss.
The plaintiffs say Vincent Hall received the money in late 1998 for investment in an EBS account, gave Ms Lambiotte Costello documents appearing to confirm the investment, and instead paid the funds into his own account. EBS denies that Hall acted as its agent in the transaction. Its pleaded position is that Ms Lambiotte Costello knew he was acting personally and that any claim lay against him alone.
The judgment records documents found among Ms Lambiotte Costello’s papers, including an EBS “SureGrowth Investment Confirmation” for £100,000 bearing Hall’s signature. The account number on the form related to Hall’s personal EBS account. The plaintiffs also pointed to lodgments into that account and payments into Ms Lambiotte Costello’s savings account. These matters formed part of the evidence described in the judgment, not findings on the underlying claim.
Hall’s defence was struck out in December 2007. In June 2008 he consented to judgment for €184,140. He died in August 2012. EBS argued that the delay had prejudiced it because it could no longer cross-examine Hall about whether he acted as its agent, and because it might have enforced a claim against him more effectively had the case proceeded earlier.
The court measured the inordinate delay by the four years between EBS making discovery and its motion to dismiss. It found the delay excusable because the plaintiffs were pursuing Hall after he had admitted personal responsibility and consented to judgment, while EBS knew what they were doing and did not seek to force the case forward. The plaintiffs had made clear they would discontinue against EBS only if matters with Hall were resolved.
The judge also said that, even if the balance of justice had to be considered, EBS had not shown sufficient prejudice to warrant dismissal. The plaintiffs’ case rested primarily on documents that remained available. Whether Hall’s evidence would have helped EBS at an earlier hearing was speculative, and the possibility that EBS could have enforced against him more efficiently was insufficient. The application was refused.