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Start Mortgages DAC v Joseph McNamara and Joseph Harris

(Judgment delivered by the High Court on 7 April 2020)

 

Although the Courts are not operating at their normal capacity, judgments are still being delivered by the Courts during these strange times. An (unapproved) judgment was recently delivered by Mr. Justice Power on the 7 April 2020 in the High Court decision of Start Mortgages DAC v Joseph McNamara and Joseph Harris, which makes for an interesting read and is a stark warning to many financial institutions.

Application

The second named Defendant, Mr. Joseph Harris, brought a Motion seeking to have the summary proceedings claim against him dismissed for the following reasons:- (1) want of prosecution; (2) dismissed on the grounds of gross, inordinate and inexcusable delay; (3) dismissed on the basis that the bank’s claim fails to show any sustainable cause of action/or is frivolous/or is vexatious.

Background

Summary proceedings were issued against the Defendants in July 2010 and were before the Master of the High Court on five separate occasions before being adjourned for plenary hearing to the Judges’ Lists and given a return date in the Common Law Motion list for November 2013.

The proceedings were initiated by Irish Life and Permanent PLC T/A Permanent TSB and an application was subsequently made to change the name of the plaintiff to Start Mortgages DAC (“the Bank”).

An Order for Discovery was made against the second named Defendant on the 11 November 2013, in which he had six weeks to discover certain documentation. However, no further steps were taken in this matter until the second named Defendant brought his application to dismiss the Bank’s summary proceedings.

It was noted by the Court during the hearing of Mr. Harris’ Motion that since the Motion was issued, the Bank’s solicitors had filed a Notice of Intention to Proceed and had requested Mr. Harris’ Affidavit of Discovery.

Issue regarding a refinancing arrangement

The Court noted that the summary proceedings had been transferred to the Judges’ Lists for plenary hearing due to a dispute regarding an alleged refinancing arrangement. The Defendants (who were in a business partnership) had obtained a loan from Permanent TSB (who subsequently sold the loan facilities to Start Mortgages DAC) in 2006 to buy four properties.

The partnership subsequently dissolved and the second named Defendant alleged that the Defendants partitioned their debt (the Bank submitted to the Court that it was unaware of this partition arrangement), whereby the Defendants each took over liability for two of the four properties bought while in partnership.  The second named Defendant also submitted to the Court that he had entered into a refinancing arrangement with Permanent TSB, part of the purpose of which was to discharge his liabilities  for the loan obtained while he was in partnership with the first named Defendant.

Consideration of application

While considering the second named Defendant’s application, the Court acknowledged that although Mr. Harris had not engaged in Discovery (as ordered by the Court) in 2013, he (and his solicitors) had contacted the Bank in September 2013 and November 2013 regarding his version of events about the refinancing arrangement entered into with the Bank’s predecessor.

The Bank’s Solicitors stated to Mr. Harris (and his solicitors) that they would revert to him about this, which did not occur.  Accordingly, the second named Defendant was still awaiting the Bank’s replies regarding his version of events about the refinancing arrangement.

The Court noted that if the matter went to plenary hearing, that the second named Defendant would encounter difficulties in securing evidence of relevant witnesses, including his former solicitors and bank personnel (who had since left Permanent TSB) regarding the alleged refinancing arrangement.   Furthermore, the Court also noted that the first named Defendant had left the jurisdiction since the summary proceedings had been issued.

Although the Bank submitted to the Court that if the current proceedings were dismissed, it would re-issue fresh proceedings, the Court noted that the Bank had failed to provide a reason as to why it had failed to prosecute this matter, after it had instituted the proceedings.

Accordingly, the Court was satisfied that the balance of justice required for the Bank’s summary proceedings to be dismissed for want of prosecution and on the grounds of inordinate and inexcusable delay.

Food for thought?

In light of the current Coronavirus situation, many cases are not currently proceeding before the Courts which gives parties an opportunity to carry out some “housekeeping” of their litigation proceedings, whether they are debt recovery proceedings or otherwise, which we would encourage all parties to do.

If you are concerned about any delays in proceedings in which you or your organisation are involved and how the Start Mortgages decision might impact on that litigation, please contact our Sarah Reynolds or Rita Higgins to discuss.

 

This Briefing Note is not intended as legal advice. For specific queries, please liaise with Sarah Reynolds OR Rita Higgins whose details are set out below.

 

AUTHORS:

Sarah Reynolds

Partner in Commercial Litigation and Data Protection

E:  sreynolds@kanetuohy.ie         M:  087-248433

 

Rita Higgins

Solicitor in the Commercial Litigation Department 

E:  rhiggins@kanetuohy.ie        M:  087-4141509