The Court of Appeal has dismissed Declan and Una Kehoe’s appeal against orders striking out their proceedings over loans and a receivership, and vacating a lis pendens registered against a property in County Kerry.
The appeal concerned a High Court decision that ended the Kehoes’ 2018 proceedings after they failed to serve the plenary summons for about three years. The Court of Appeal found the delay was inordinate and inexcusable and that the balance of justice favoured striking out the case. It also upheld the separate decision to vacate the lis pendens.
The dispute arose from loans taken out by the Kehoes from Ulster Bank between 2008 and 2011. The loans were secured against property, including a Kerry property registered to Declan Kehoe. In 2015, Ulster Bank transferred the loans and related security to Promontoria (Aran) Limited, which appointed Ken Fennell as receiver over four properties. The Kehoes dispute the amounts said to be owed, the transfer and the receiver’s appointment. They also allege that three other properties sold by the receiver were sold at an undervalue. Those matters were not decided in this appeal.
Declan Kehoe had earlier brought proceedings challenging the receiver’s appointment. They were struck out in 2017 after his solicitor told the court a notice of discontinuance had been filed. Kehoe later maintained that the proceedings were withdrawn without his knowledge or consent.
The Kehoes issued a new set of proceedings in March 2018 seeking, among other relief, to restrain enforcement and challenge the receiver’s appointment. They registered a lis pendens against the Kerry property six days later, but did not serve the summons. The defendants sought to strike out the proceedings in February 2021. The Kehoes applied to renew the expired summons in May 2021 and attempted to serve the original summons.
On appeal, the Kehoes argued that the High Court judge had not properly considered evidence about a dispute with their former solicitor, difficulty retrieving their file and engagement with Ulster Bank. The Court of Appeal found the judge had received and considered the affidavit. It said the evidence gave little detail about when the problems arose or how they accounted for the delay, particularly the first 18 months or more. The court concluded that the explanations did not justify the failure to serve the summons.
The Court of Appeal also dismissed a related appeal against a case-management decision refusing an adjournment to file further affidavits. It said the issue had become moot once the hearing proceeded, and found no basis to interfere with the decision.
The court upheld the order vacating the lis pendens under section 123 of the Land and Conveyancing Law Reform Act 2009, finding the delay in prosecuting the action unreasonable. It confirmed that vacating a lis pendens does not itself determine the status of the underlying proceedings. Here, however, the proceedings were separately struck out. The court dismissed the appeal and proposed that the defendants receive their appeal costs, subject to either side seeking a short hearing on costs within ten days.