High Court dismisses defendants' motion to strike out proceedings on delay grounds due to lack of abuse of process or prejudice.

APPROVED [2025] IEHC 617

THE HIGH COURT

2019 370 S

BETWEEN

BANK OF IRELAND MORTGAGE BANK UNLIMITED COMPANY

PLAINTIFF

AND

IAN LAWLOR AND RIA LAWLOR

DEFENDANTS

JUDGMENT of Mr. Justice Nolan delivered on the 12th day of November 2025

Introduction

1. This is an application brought by the Defendants to dismiss these proceedings on the grounds of delay and/or want of prosecution. The motion was issued in April of 2024 and followed an application for summary judgment brought by the Plaintiff (“the Bank”) in February of 2024 in the sum of €1,272,712.51.

2. The proceedings arise from three loan facilities advanced by the Bank to the Defendants in or about 2004, 2005, and 2006. The facilities fell into default in 2009-2010. The Defendants assert that an oral agreement was reached in 2012-2013 with a bank official, Mr. Frank Fitzpatrick, that the residual debt would not be pursued if certain secured properties set out below, were sold and the proceeds remitted to the Bank, which ultimately occurred. The Bank denies the existence and effect of any such agreement, which it says is uncorroborated and in fact contradicted by the correspondence and documentation.

3. The relevant dates in relation to this matter are set out in this chronology. I have added some narrative to it for the purposes of highlighting a number of factors which I think are of importance.

Pre-litigation Chronology

4. In or about 2004, 2005 and 2006, the Bank lent monies to the Defendants, approximately €1,285,000, in relation to the purchase of certain property investments in particular two properties, 80 Crumlin Road (“Crumlin Road”) and 29 North Brunswick Street Stoneybatter (“Stoneybatter”), both in the City of Dublin.

5. Following the crash of 2008 the Defendants went into default between 2009 and 2010.

6. By letter dated the 5th of December 2012 following negotiations between the Defendants and Frank Fitzpatrick, an employee of the Bank, the Bank came to an arrangement in relation to mortgages regarding three other properties and agreed sealed discharges on receipt of the proceeds of sale of those properties.

7. By letter dated the 4th of September 2013, the Defendants acknowledged that notwithstanding the sale of Crumlin Road, they continued to remain liable for all residual outstanding sums due to the Bank on foot of the mortgage in relation to that property.

8. By letter dated the 20th of March 2014, the Bank wrote to the Defendants noting that there was still a small sum due in relation to the Crumlin Road mortgage. The letter said that the Bank were considering instructing solicitors to proceed, however if payments of €50 a month from March 2014 to February 2015, were made, the balance would be written off. This would have meant that by paying the sum of €550, they would have had €8,000 written off. While in the overall context of the sums claimed, this is simply a drop in the ocean, nonetheless it was an offer from the Bank to accept a much lesser sum. However, the Defendants did not take up the offer.

9. On the 13th of August 2015, the First Named Defendant wrote to Mr. Fitzpatrick, enclosing a Standard Financial Statement (“SFS”), signed by both Defendants. He said that he had begun a new job but that he had many unresolved issues with other lenders. In the SFS, the Defendants acknowledged a debt to the Bank, among others, in the total sum of €1.75 million. Their total indebtedness was over €3.5 million to all banking institutions.

10. On the 1st of December 2015, the Bank wrote a short letter seeking demand of the sum of €1,136,47, being the total of the three relevant loans.

11. On the 24th of March 2017, the Bank wrote a detailed letter in relation to the outstanding mortgage accounts. The writer, Aiden Vaughan, asked for updated financial information so that the Bank could conduct an informed review.

12. On the 7th of April 2017, the Defendants wrote to Mr. Vaughan saying that they were putting together a statement of income and thanking him for his assistance. They referred to their successful dealings with Mr. Fitzpatrick in relation to, what they called, “our other Bank of Ireland mortgages which was a larger debt amount”. The letter noted that they were able to reach an agreement which involved selling properties and hoped that they would be able to resolve matters in this case.

13. This history is of some importance in the context of the application before the Court. In the First Named Defendant’s affidavit, at paras. 16 and 18, he said as follows; having discussed his negotiations with Mr. Fitzpatrick and the sale of the other properties: - “We proceeded to sell the various properties in late 2012 and remitted the net proceeds to Bank of Ireland. Having done so we were relieved that we had settled all of our liabilities to Bank of Ireland and could move on with our lives. Thereafter we heard nothing from Bank of Ireland for a period of over 5 years…It therefore came as a complete shock to us in August 2018 when the Plaintiff purported to demand payment of us in the total sum of €1,174,091.70”.

14. The bold assertion and clear intention of those averments was to create the impression that no steps of any description had been taken by the Bank in more than five years, between the end of 2012 and 2018. But that simply was not true. Not only had there been correspondence from the Bank, but there was also correspondence from the Defendants. In particular in 2015 when the Defendants furnished an SFS, clearly acknowledging the debt, and then again in 2017, stating that they had honoured a previous agreement in relation to other properties. Nowhere in the affidavit is there any reference to the SFS or the correspondence.

15. This seems to me to be a very serious omission. The Court is being asked to exercise a discretion, but the Defendants have not put all the relevant information before it. Further, sworn testimony in the affidavits is clearly contradicted by the correspondence. That too, is a very serious matter. Therefore, not only is there omission but there is also, at its very least, confusion.

16. It seems to me, that where a court is being asked to exercise a discretion, the principle of uberrimae fidei should apply. All relevant information should be before the court; otherwise, the discretion, which is being requested, maybe procured without the court having the full benefit of all relevant facts.

17. It is not the case that it could have come as a complete shock to the Defendants, when the Bank made demands in August of 2018. The Defendants had written to it the year before, saying they were putting together a statement of income for review and that they were grateful to Mr. Vaughan for his assistance and believed that a resolution could be reached. Indeed, in that letter of the 7th of April 2017, they both said as follows “we hope to be able to resolve matters in this case, and look forward to discussing with you once all information is to hand”.

18. The reason why I have set out the pre-litigation history is that the Defendants have asked the court to consider the O'Domhnaill principles in relation to their application.

The O'Domhnaill Principles

19. These principles focus on whether the passage of time has created a “real and substantial risk of an unfair trial”. Where delay is excessive, unjustified and results in prejudice to the defendant, the court may dismiss the claim. There are three requirements to the principles: Was the delay inordinate? The delay must be beyond what would be considered reasonable in the circumstances and was the delay inexcusable? The plaintiff must provide a reasonable explanation for the delay. If no explanation is given, or if the explanation is inadequate, the delay is deemed inexcusable. The next question that needs to be asked; are there countervailing circumstances that justify allowing the case to proceed despite the delay? All these matters must be considered in exercising these potentially draconian powers.

20. Ultimately, the court must balance fairness: the plaintiff’s right to pursue justice versus the defendant’s right to a fair trial (which may be compromised by the passage of time, e.g. lost evidence, faded memories). Examples of other matters that the court should consider would include acquiescence by the defendant (e.g., conduct suggesting they accepted or tolerated the delay) or the inability of the plaintiff (e.g., due to infancy or incapacity) to control or end the delay. (see Comcast International Holdings Inc. v Minister for Public Enterprise [2007] IEHC 297, Manning v Benson and Hedges Ltd [2004] IEHC 316, Gorman v. The Minister for Justice, Equality and Law Reform [2015] IECA 41).

Discussion and Decision on the O'Domhnaill Principles

21. The Defendants submit that this case will turn on oral testimony and that the memories of the three crucial witnesses, namely themselves and Mr. Fitzpatrick, will be diminished. Further the First Named Defendant says that his records are no longer available due to a change of his computer and therefore is a real risk of an unfair trial.

22. I note the views of Irwin J. (as she then was) in Gorman v The Minister for Justice, Equality and Law Reform [2015] IECA 41, where she said that it is an undeniable fact that the greater the lapse of time between the event in question and the hearing of the claim the more fragile and unreliable the evidence becomes. She noted that it was a particular concern in cases where there was no documentary or other objective evidence to support a claim where there is conflicting oral testimony.

23. In this case however there is plenty of documentary evidence, although it will be a question for the hearing of the action as to whether it supports the allegations of the Defence. It seems to me therefore that this is a case in which the O'Domhnaill principles do not avail the Defendants.

24. While little or no documentary evidence was put forward by the Defendants, the affidavit of the Bank clearly shows that there is plenty of documentary evidence available. Their memories of the interaction with Mr. Fitzpatrick are vivid, as they are pleaded in the affidavits. At para. 12 of the First Named Defendant’s affidavit he specifically states: - “We negotiated the foregoing agreements with the Bank’s employee, Frank Fitzpatrick, who represented to us and to our solicitor that he had the power and authority to agree a settlement of all our liabilities to Bank of Ireland, including the Loan Facilities. He told us that the Bank would not agree in writing that all our liabilities to it where fully and finally settled but it would agree not to pursue us for the residual debt on our liabilities to it.”

25. That is a very specific plea, and one, it would seem, which will be supported, not only by the deponent’s wife, the Co-defendant, but also by their solicitor. That narrative continues through the correspondence which issued from their solicitors, once the proceedings were threatened and issued. Indeed, they have been consistent in relation to their defence. In those circumstances, it seems very hard to identify what prejudice, along the lines enunciated in the O'Domhnaill principles, arise.

26. Even if I am incorrect in relation to this, it seems to me that given that this is a discretionary relief, the failure on the part of the Defendants to put before the court all the relevant information in their affidavits, must go against them. Therefore, in those circumstances I refuse the relief which the Defendants seek to dismiss the proceedings under the O'Domhnaill principles.

27. However, that is only part of the application before the Court. The next part of the application relates to the issue of delay after the proceedings have been instituted. In this regard, the most recent decision of Kirwan v Connors & others [2025] IESC 21, is clearly to the fore.

Post Litigation Chronology

28. The Summary Summons was issued on the 17th of April 2019 but not served. Thereafter between the months of April 2019 to January 2020, there was ongoing correspondence between the parties' solicitors, including queries raised by the Defendants and responses by the Bank. The Bank's solicitor agreed to withhold service of the proceedings to facilitate further engagement. A number of months later on the 3rd of January 2020, the Summons was served on the Defendants' solicitors.

29. Very quickly on the 22nd of January 2020, an Appearance was entered by the Defendants. Shortly thereafter in March 2020, the COVID-19 pandemic hit, and court business and legal practice was severely disrupted. The Bank admits that the file was put on hold during this period and says that most claims brought by lenders against borrowers were as well, in recognition of the unique circumstances.

30. In November 2021, there was a Notice of Change of the Bank’s solicitor and a Notice of Intention to Proceed was filed and served. In March 2022, the Bank brought a Motion to Amend the Summons, in line with Bank of Ireland v O'Malley [2019] IESC 84 which was filed and served. That Order was made on the 21st of June 2022. A second Notice of Change of Solicitor was filed and the new solicitors were appointed but there was a conflict, which resulted in another firm being appointed in December 2022. They took some time to consider the file and take instructions a further Notice of Intention to proceed was issued.

31. The Motion for Final Judgement was then issued on the 13th of February 2024. The Defendants then issued this motion on the 3rd of April 2024.

Kirwan

32. There is little doubt that over the last 20 years or so, the various legal interpretations and convoluted matrix analysis of each case has made the jurisprudence in relation to delay most complicated. This is implicitly acknowledged in the decision of the Supreme Court in Kirwan, which has to be seen as a game changer or a significant shift to a more practical and usable method of analysing delay in legal proceedings.

33. In setting out of the majority view in relation to how delay should be assessed, the Chief Justice put in place a helpful guide to that analysis. At para. 25 he said: - “Once it is accepted, as it must be, that the existence of rules on dismissal of a claims for want of prosecution are not themselves an impermissible interference with the right of access to courts to litigate claims, then the application of those rules does not raise any constitutional issue and the Constitution does not require any presumption in favour of the claim or against dismissal.”

26. “In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Greater weight should be given to the factor of the passage of time, this will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that:-

(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O’Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a defendant can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph

54 of his judgment.

27. It should, however, be recognised that the test is not mechanical, and it remains a matter for judgment, and it will remain conceivable that individual judges may take different views in borderline cases. This is an unavoidable and necessary feature of a legal system. The purpose of the jurisprudence should not be to attempt to dictate the outcome of the marginal cases but instead provide sufficient guidance to allow most cases to be resolved without protracted hearings and lengthy appeals. This refinement of the Primor test should permit more applications to be decided speedily and provide a structure for more finely balanced claims to be focussed on the key issues. It is important both to recognise the significance of lapse of time in relation to the jurisdiction, and highlight that factor in the test to be applied. In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.”

34. The crucial point, as far as this case is concerned, is that there has to be inactivity for two years and in those circumstances the claim should only be dismissed if it is an abuse of process or there is prejudice to the defendant.

Submissions and Discussion

35. The Defendants contend that there has been inordinate and inexcusable delay in the prosecution of the proceedings since their commencement in April 2019. The Bank submits that any periods of delay are explained and excusable, and that there has never been a period of two years or more of total inactivity so as to engage the jurisdiction under Order 122, Rule 11, as interpreted in Kirwan.

36. The Bank further submits that the Defendants have not identified any specific evidence that would have been available to them at an earlier stage but is not now available. Their defence is based on an alleged oral agreement, for which there is no written record or contemporaneous note.

37. The Bank says that at no stage has there been a period of two years or more of total inactivity on its part. The periods between steps are explained by ongoing engagement, the impact of the COVID-19 pandemic, and the need to take instructions and address issues arising from the change of solicitor.

38. However, I do not accept that the period between March 2020 and October of 2021 meant that the world stood still. Certainly, for the first six months or so there was severe disruption to life, as we know it. But after that, while there were lockdowns and disruptions to hospitality, schools and social interaction, in accordance with the health guidelines, businesses continued to operate, as did the banks and the courts.

39. I accept the argument that the Bank may have exercised forbearance during the COVID-19 period. Nonetheless there was delay. Therefore, it seems to me that would be more reasonable to consider that the COVID-19 pandemic had an impact between March 2020 and November/December 2020.

40. Thereafter the Bank points to a Notice of Change of Solicitor and a Notice of Intention to Proceed filed and served. Thereafter the Bank points to a motion to amend the summons following the Supreme Court decision in O’Malley. I accept that it was a prudent step to take, but it was a step which could have been taken earlier.

41. The Motion to Amend was granted in June of 2022. Thereafter there was another Notice of Change of Solicitor in October 2022. The Defendants raised an issue as to an apparent conflict with the new solicitors appointed and therefore a further Notice of Change of Solicitor was served in December of 2022. It would be unfair to take into consideration the period from October 2022 to December 2022 bearing in mind it was the Defendants’ solicitors who raised the issue. That was a period of three months which should not be considered as part of any potential delay.

42. But that does not entirely explain the delay, bearing in mind that these are summary proceedings. In that regard I concur with the views of Barr J. In Bank of Ireland v Wilson [2020] IEHC 646, where he said at para 40: - “Where the plaintiff has elected to pursue a summary form of proceedings, he will be expected to proceed with his action relatively quickly, as that is the essence of an action provided for under the summary procedures provided for in the Rules of the Superior courts”

43. The Bank partially explains the delay on the basis that the new solicitors had to take instructions and determine the appropriate course of action. The appropriate course of action had already been determined. In my view it should not take solicitors so many months to take a new file, take instructions and decide on the appropriate course of action in circumstances where proceedings had been issued. The course of action had already been decided.

44. While the Defendants assert stress and anxiety, as O’Donnell C.J. has said in Gilchrist v Sunday Newspapers Ltd [2017] IESC 18 litigation is a robust business, it is also one intrinsically linked to stress and anxiety.

45. The Bank submits that the periods of delay are not inordinate in the context of the proceedings as a whole and are in any event excusable for the reasons set out below.

Decision on Delay

46. There is no doubt that there has been delay in these proceedings, which issued in 2019. It is now six years later in November of 2025. Bearing in mind COVID-19 and the disruption to life, it seems to me that there was, just about, activity on the part of the Bank, for two years. Utilising the template of Kirwan, the Court has the right to dismiss the case, but only if it is an abuse of process or there has been prejudice to the level required to ground an application under the O’Domhnaill jurisdiction.

47. I do not believe the delay gives rise to an abuse of process in this case and I am not convinced that is prejudice, as I have set out above. Therefore, I do not believe but under this first heading, the case should be dismissed.

48. The following headings, in my view do not arise. We are not at the stage of total inactivity for a longer period than two years. Even if we were at that stage, it seems to me that I should only dismiss the case where the moving party can point to some additional prejudice or other factor pointing towards dismissal. As I have set out above, I do not believe there is any additional prejudice other than time itself, which of course is a prejudice. There are however no other factors that the Defendants can point to, other than a change of computer. I do not consider that I should dismiss the case on that basis. However, it is the last line of that paragraph which is relevant to, and directs my thinking. I believe that I am entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.

49. I should hear the parties as to the nature of the order which should be made.