Delay in prosecution found not to be inexcusable

O’Carroll Anor v EBS Building Society Anor

High Court

Judgment was delivered on February 1st, 2013 by Ms Justice Iseult O’Malley.

Judgment

A delay in prosecution largely attributable to a course of action taken by a plaintiff, to the knowledge of a defendant, which would if successful be to the benefit of the defendant, is not inexcusable.

Background

The EBS sought to have a case against it dismissed for inordinate and inexcusable delay in the start and/or prosecution of the proceedings. The case was initiated in 2004 by solicitor Enda O’Carroll and Teresa Hunt, the personal representatives of a woman who died in France in 2000.

They claimed the late Ms Teresa Lambiotte Costello had sent Vincent Hall of Castleblaney, Co Monaghan, €127,000 (£100,000) to invest in the EBS in 1998. An auctioneer and former agent of EBS and now also deceased, Mr Hall supplied Ms Lambiotte Costello with false documentation purporting to confirm an account had been opened for her, Mr O’Carroll claimed, but instead Mr Hall paid the money into his own account and spent it.

Two documents were found among Ms Lambiotte Costello’s papers including a printed EBS form headed “SureGrowth Investment Confirmation”, “certifying” an investment of €127,000 with “Issued on behalf of the Society” written on the end and with a stamp of EBS Castleblaney.

Mr O’Carroll claimed he interviewed Mr Hall in 2002 and who said he told Ms Lambiotte Costello he could get her a better rate of interest from a man in Northern Ireland and she was agreeable. Mr O’Carroll said it transpired the man Mr Hall said he gave the money to was a well-known drug trafficker who was murdered in 1997 before the investment took place.

Mr O’Carroll began legal action against Mr Hall and the EBS in 2004. Mr Hall consented to judgment against him in 2008 for €184,140.

In September 2009, the EBS was told proceedings against it would not be discontinued until arrangements with Mr Hall were finalised. In August 2011, Mr Hall died and his wife died a month later.

The EBS sought to have the case against it dismissed for want of prosecution. It argued Mr Hall was not acting as its agent at the time the transaction occurred and Ms Lambiotte Costello knew the transaction was not related to the EBS. It said nothing had happened in the case since the end of 2007 and the delay was “inordinate and inexcusable”.

The plaintiffs argued it was to the EBS’s advantage to await the outcome of action against Mr Hall and it was aware of the efforts being made at all times.

Decision

Ms Justice O’Malley set out the tests laid down in relation to delay in Rainsford v Limerick Corporation and in Primor pic v Stokes Kennedy Crowley. These included asking if there had been a delay and if so, whether it was inordinate, and if it was, was it excusable.

The judge said the view had been put forward that the “classic test” may have to be “recalibrated” to reflect “the interest of the justice system in progressing litigation efficiently”. But, she said, this had not found favour with the Supreme Court. She applied the test and found there had been a delay and “by ordinary standards it was inordinate”. But it was not inexcusable.

Mr Hall had admitted liability and consented to judgment and if the plaintiffs’ claim could be satisfied by him it would “clearly be in everyone’s interest not to engage in superfluous litigation”, she said.

The EBS was fully aware of the course being taken and did not seek to force the case on.

The plaintiffs also never abandoned their case against EBS and made it “clear at all times” they would discontinue proceedings only when matters were fully resolved with Mr Hall. “In my view, delay which is largely attributable to a course of action taken by the plaintiff, to the knowledge of the defendant, which would if successful be to the benefit of the defendant, is not inexcusable,” she said.

She refused the order sought.

Alex Owens SC and Niamh O'Carroll BL, instructed by Wells O'Carroll Solicitors for the plaintiff, Rossa Fanning BL instructed by Arthur Cox Solicitors for the defendant. Full judgment at courts.ie.