Courts sets timetable for 'byzantine' court actions started 22 years ago

The Supreme Court has ruled that two companies of which business man Jim Kennedy is a director may continue “byzantine” court actions initiated 22 years ago only on condition they adhere to a strict timetable set down by the court.

Lismore Homes Ltd and Lismore Builders Ltd, in receivership, initiated separate proceedings in 1990 against Bank of Ireland Finance Ltd and Deloitte, Haskins and Sells (DHS) related to an intended housing development at Weston Park, Newcastle, Co Dublin.

It was alleged the bank, as a condition of providing additional finance to the companies for the development, had in March 1989 appointed an employee of DHS, who was not a qualified accountant, as financial controller of the Lismore companies at the “very substantial” salary of €2,750 a week.

The Lismore companies claimed the bank and DHS had run their business into the ground but there may well be a strong answer to those claims, Mr Justice John MacMenamin stressed.

Claims against other parties were later abandoned and the case involved multiple applications by both sides until the High Court in 2006 halted both cases on grounds of inordinate and inexcusable delay.

The Lismore companies appealed that decision to the Supreme Court, but did not appeal the High Court’s decision refusing to allow them to amend their claims so as to permit them to claim €45 million damages on foot of additional claims of deceit, conspiracy and misrepresentation.

Giving the three-judge Supreme Court judgment yesterday, Mr Justice MacMenamin ruled that the delay had been inordinate but, in the unusual facts of the case, including considerable delays in the court system itself, the High Court had erred in finding it inexcusable.

The High Court had erred in putting the onus of proof on the Lismore companies to show the inordinate delay was excusable when it was up to the respondents to show the delay was both inordinate and inexcusable, he ruled.

Seven-year delays

In finding some 16 years “inexcusable” delay from commencement of the proceedings, the High Court also erred in including in that period “regrettable” delays of some seven years while appeals were pending in the court system.

While much of the blame for procedural delays could be placed with the Lismore side, both sides must be criticised for their conduct of procedural and other matters, he said.

Some of the procedural conduct of the case reflected little credit on either side, he added.

Other factors that affected the case included the involvement of Mr Kennedy with the Mahon tribunal, he noted.