High Court: Dismissal on grounds of delay refused where applicants consented to adjournments

About this case:

• Citation:
  [2024] IEHC 567
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Bolger found that the delay was excused inter alia “by reason of the defendants’ participation in consenting to a vast number of adjournments of motions and hearing dates during a time that they were legally represented, which they did in order to allow negotiations to take place and to facilitate the plaintiff’s substitution application”.

Background

In January 2014, the Danske Bank issued summary proceedings seeking judgment in the sum of €887,515.94 arising from loans provided to the defendants in 2008 and 2012. 

In 2015, the judgment obtained by Danske Bank in default of appearance was set aside by consent.

Thereafter, Danske Bank’s motion to enter summary judgment was adjourned on a number of occasions to allow the filing of further affidavits. In 2021, an ex parte application to substitute the plaintiff (Pepper) into the proceedings was made. 

In April 2023, Pepper issued a motion to amend the proceedings to comply with the judgment in Bank of Ireland Mortgage Bank v. O’Malley [2019] IESC 84. 

The defendants made an application to set aside the proceedings on grounds of delay, asserting that they had a full defence and that the proceedings were more appropriate for plenary hearing, which they contended was a matter going to the plaintiff’s culpability for delay and to the balance of convenience.

The High Court

Ms Justice Bolger considered that the delays complained of were lengthy and “would certainly be considered inordinate” in the context of summary proceedings which were to be progressed expeditiously in accordance with Bank of Ireland v. Wilson [2020] IEHC 646.

However, the judge emphasised that the proceedings were adjourned by consent on at least 19 occasions. 

The plaintiff contended that the adjournments between December 2018 to October 2020 were to facilitate negotiations between the parties, although the defendants disagreed as to the periods in which negotiations were ongoing.

The court highlighted that whilst the plaintiff’s explanations did not excuse the entirety of the periods of delay, the defendants’ conduct in agreeing to the adjournments required consideration.

Finding that the delay from 2018 to 2023 was inordinate, particularly given that the plaintiff had chosen to proceed by summary summons despite the defendants’ view that they were more appropriate for plenary hearing, Ms Justice Bolger found that the defendants’ participation in consenting to the adjournments whilst legally represented rendered the delay excusable.

Assessing the balance of convenience, the court considered that if the proceedings were dismissed, the plaintiff would lose the opportunity to litigate over four substantial debts. 

The court also considered the defendants’ argument that they were prejudiced in their ability to run their “full defence” on the basis that the delay limited the documentation available to them in their data access request to Danske Bank, and where discovery could not remedy that issue. 

Ms Justice Bolger determined that there was no suggestion that the delay between 2018 to 2023 created any prejudice to the defendants in addition to that which existed from the outset, and that their concerns in relation to discovery were hypothetical “as there is, at present, only the prospect of discovery”.

As to the defendants’ concerns that the recollections of potential witnesses and their own recollection could be flawed due to the passage of time, the judge stated “even if discovery and oral evidence is to be allowed in the context of a plenary hearing that may be directed, the plaintiff’s case and the defendants’ defence will, to a large extent, come down to the interpretation of the facility letters, loan agreements and/or overdraft agreements on which the plaintiff relies in seeking judgment against the defendants”.

Having regard to Cave Projects Ltd v. Kelly [2022] IECA 245, Ms Justice Bolger emphasised that a causal connection between delay and the prejudice asserted was required, noting that much of the prejudice alleged by the defendants in respect of missing documentation had already occurred before the periods of delay, and that their claims in relation to the impaired recollection of potential witnesses were generalised and contradicted by their own detailed affidavits.

Turning to the defendants’ contention that the plaintiff’s application for a substitution order was not a “proceeding” for the purposes of Order 122, rule 11 of the Rules of the Superior Courts, the High Court was satisfied that the making of an order within the litigation, even if ex parte, was a proceeding for the purposes of Order 122, rule 11 as same was “not an order made devoid of any engagement or interest of the defendants” who acquired a right to apply to vacate that order thereafter.

Conclusion

Accordingly, the High Court dismissed the defendants’ applications.

Pepper Finance Corporation (Ireland) DAC  v Roche & Anor [2024] IEHC 567