The High Court has ruled that an application by a finance firm for judgment of some €1m against a couple should be struck out over the lengthy delay in progressing the claim.

Ms Justice Marguerite Bolger said the delay in advancing proceedings against Joseph and Helen Bracken over loans taken out over 15 years ago was “both inexcusable and inordinate.”

The monies were originally advanced by AIB Plc.

Everyday Finance DAC acquired the loans from the bank two years ago.

The judge said in her decision that the balance of justice also favoured striking out the proceedings that were commenced in 2013 when AIB sought €1m, plus interest, from the couple.

While the action was commenced 11 years ago it was not set down for trial until late 2021.

The couple, represented instructed by Darrach MacNamara BL, instructed by solicitor Donnacha Anhold, opposed the claim and brought a pre-trial application seeking to have it dismissed on the grounds of delay.

They claimed that they were prejudiced because the claim was not progressed during that eight year period.

AIB, and then Everyday after it acquired the loan, opposed the application.

The couple accepted that they, along with Mrs Bracken’s brother Michael Gleeson, entered into a loan agreement for €850,000 with AIB in 2007 to acquire lands in Ferbane Co Offaly on which it was proposed to build over 30 housing units.

The loan facility, the couple claimed, was limited in recourse to those lands.

They believed the 2007 agreement meant the bank could not come after any of their other assets, including their family farm.

In 2013 the bank brought proceedings seeking judgment on foot of a 2009 agreement which it claimed amended and extended the 2007 loan facility.

AIB claimed that a letter of sanction extending the initial facility was signed by the couple and Mr Gleeson.

The couple rejected that argument and said that signatures on the letter was “nor our signatures.”

The couple claimed that while discussions were held with AIB, following a review of the 2007 facility, they never consented to the alleged extension, nor did they receive any additional funds from the bank as alleged by it.

Judgment was sought against the couple, from Munny Kilcormac Co Offaly and Mr Gleeson of Syngefield, Birr, Co Offaly after they allegedly defaulted on their repayment obligations.

The couple accept the housing project was never completed and only a sum of €80,000 was repaid to the lender. In 2016 a receiver appointed by AIB sold the property for €180,000.

They claim that they lost some €120,000 of their savings on the project and argued that the action against them was flawed and prejudicial.

In her ruling Ms Justice Bolger said she was satisfied to dismiss the action against the couple.

While the plaintiff had offered “excuses” for the delay, including settlement discussions, and a possible complaint to the Financial Services Ombudsman, the court was satisfied that the delay was both “inordinate and inexcusable.”

The judge also noted that any hearing of the case was likely to take place in 2024 some 17 years after the events of 2007 and 15 years after the alleged events of 2009 when there was an alleged further agreement.

The judge said that there were issues in dispute between the parties, and the delay would inevitably render the evidence given by witnesses as fragile and unreliable especially where the seemed to be an absence of certain documentation.

She also noted that Mr Bracken was further impaired by the very serious injury he sustained following an accident in 2017, said that this was a case where general prejudice applied, and in the circumstances said that the balance of justice favoured dismissing the claim against the couple.

The judge said Everyday had argued that its claim should be allowed to continue because a dismissal would involve it writing off a substantial amount of debt.

The judge said the bank’s position cannot be seen as being different to a litigant in any other type of proceedings “simply because of the large sums of money involved.”

Post by Tim Healy, 15 Feb 2024 in