High Court dismisses plaintiffs' claim against IBRC and KPMG due to failure to comply with the 2013 Act and inordinate delay.

THE HIGH COURT

Record No. 2015 7823 P

[2025] IEHC 720

BETWEEN

ANNE POUNDS AND LIAM PHILPOTT

PLAINTIFFS

AND

IRISH BANK RESOLUTION CORPORATION

(IN SPECIAL LIQUIDATION) AND KPMG

DEFENDANTS

JUDGMENT delivered by Mr. Justice Sean Gillane on 17 December 2025

Introduction

1. The procedural history of this case is as extraordinary as it is unacceptable.

2. There are four motions before the Court in the context of a plenary summons which issued on the 29th of September 2015.

3. These motions are as follows:

• A motion brought by Irish Bank Resolution Corporation (in special liquidation) (“IBRC”) seeking an order striking out the plaintiffs’ proceedings against it by reason of the plaintiffs’ failure to comply with section 6 of the Irish Bank Resolution Corporation Act 2013 (“the 2013 Act”);

• A motion brought by KPMG seeking, inter alia, an order striking out the plaintiffs’ proceedings against it by reason of the plaintiffs’ failure to comply with section 6 of the 2013 Act and to validly serve the proceedings, and on the basis of the plaintiffs’ inordinate and inexcusable delay in prosecuting the proceedings;

• A motion brought by the plaintiffs seeking an order retrospectively granting them leave pursuant to section 6 of the 2013 Act to continue with the proceedings against IBRC and, further, seeking an order to join the Minister for Finance, the Attorney General and Ireland to the proceedings (“the proposed State defendants”);

• A motion brought by the plaintiffs seeking a wide variety of declaratory reliefs.

4. The first three motions came on for hearing before me on the 6th and 7th of November 2025. The agreed position was that the fourth motion was listed for mention only, pending the determination of the other motions.

Procedural History

5. It is necessary to say something of the history of this case to place the motions in context.

6. The plaintiffs issued proceedings against the first and second named defendants by plenary summons dated the 29th of September 2015.

7. The plaintiffs’ claim was for the following:

• Damages to include punitive and/or aggravated and/or exemplary damages for loss, distress, trauma, inconvenience and upset caused by the negligence, breach of duty and/or breach of statutory duty on the part of the first and/or second named defendant, its servants or agents;

• Damages to include punitive and/or aggravated and/or exemplary damages for loss, distress, trauma, inconvenience and upset caused by the misrepresentation, deceit and breach of fiduciary duty on the part of the first and/or second named defendant, its servants or agents;

• Damages to include punitive and/or aggravated and/or exemplary damages for breach of the plaintiffs’ rights pursuant to the provisions of Bunreacht na hÉireann 1937.

8. The precise nature of the claim against either defendant is not readily apparent from the plenary summons.

9. No statement of claim was ever delivered by the plaintiffs.

10. In fact, no steps in the proceedings were taken by the plaintiffs until they issued a notice of motion dated the 16th of August 2024 seeking, inter alia, a number of declaratory reliefs in relation to lands “owned by the Second Plaintiff and enjoyed by First Plaintiff” in Buttevant, County Cork.

11. IBRC and KPMG separately issued their strike out motions on the 2nd of December 2024.

12. On the 9th of December 2024, the plaintiffs issued a further motion seeking an order, pursuant to section 6 of the 2013 Act, to allow them to proceed in the case taken against IBRC or, in the alternative, an order that section 6 did not apply to them. This motion also sought an order “to amend the title of the proceedings to add the Minister of Finance who is the shareholder in Irish Bank Resolution Limited (IBRC) in special liquidation, the Attorney General and Ireland as joinders.”

13. A number of affidavits were filed by the plaintiffs, the latest of which was filed by the first named plaintiff on the 4th of November 2025. IBRC observe that no leave had been granted by the Court to deliver that affidavit and that this was part of a consistent pattern of breaches of court directions by the plaintiffs, including the unexplained late service of written submissions for this hearing.

Factual Background

14. While it is unnecessary to rehearse the entire factual background for the purposes of determining the motions before the Court, it is useful to set out a chronological summary of the salient factual matters.

15. Essentially, the background to these proceedings relates to two loans provided to Mr. Philpott by Irish Nationwide Building Society (“INBS”) in 1990 and 1994.

16. On the 25th of May 1990, a letter of offer was sent from INBS to Mr. Philpott in respect of a loan for £55,000.00, interest only, secured by a Standard Life Endowment Policy and farmland and farm buildings at Buttevant, County Cork (“the first loan”).

17. On the 23rd of May 1994, a letter of offer was sent from INBS to Mr. Philpott in respect of a loan for £6,000.00, interest only, secured by a Standard Life Endowment Policy and farmland and farm buildings at Buttevant, County Cork (“the second loan”). This offer was accepted, subject to the attached terms and conditions, and signed by Mr. Philpott on the 27th of May 1994.

18. Endowment products were applied to both loan accounts.

19. Mr. Philpott has, over the course of a number of years, made a series of complaints about the alleged mismanagement of these loans.

20. Between June and September of 2010, there was an exchange of correspondence between INBS and Mr. Philpott in relation to shortfalls in respect of the loans following the application of the relevant endowment policies. Mr. Philpott also raised issues with the applicable interest rate and alleged mis-selling of endowment/insurance products.

21. While INBS engaged with Mr. Philpott in relation to the issues raised, it is clear that these issues formed the basis for complaints made by him to the Financial Services Ombudsman (“FSO”), which subsequently became the Financial Services and Pensions Ombudsman (“FSPO”).

22. On the 30th of May 2011, INBS wrote to Mr. Philpott, informing him that the first loan term had expired on the 27th of January 2011, and that the balance of €13,692.63 was due and owing and interest was accruing.

23. On the 1st of July 2011, INBS loans were transferred to Anglo Irish Bank Corporation under section 34 of the Credit Institutions (Stabilisation) Act 2010 and, thereafter, Anglo Irish Bank Corporation became IBRC in October 2011.

24. On the 5th of January 2012, IBRC wrote to Mr. Philpott, informing him that the second loan term had expired on the 23rd of June 2010, and that the balance of €367.36 was due and owing and interest was accruing.

25. On the 16th of April 2012, IBRC wrote to Mr. Philpott once again in relation to the first loan, informing him that a balance of €13,700.00 was due and owing and interest was accruing.

26. On the 22nd of August 2012, IBRC wrote to Mr. Philpott indicating that all of the loans associated with the property at Buttevant had been paid off. While the letter was headed in relation to the second loan account, the body of the letter contained the following statement: “all loans relating to the above property were paid off in full at that time and IBRC no longer holds any interest in the above property.”

27. IBRC say that this reference to “all loans” was sent in error, in circumstances where only the second loan had been redeemed and, in fact, the first loan remained outstanding.

28. On the 5th of September 2012, IBRC wrote to Mr. Philpott referring to the shortfall on the account and stated that “this will have to be paid in full.” It is clear from this, and subsequent correspondence, that Mr. Philpott was told that, as far as IBRC was concerned, the monies continued to be due and owing in respect of the first loan and that this would have to be paid in full.

29. On the 7th of February 2013, the 2013 Act was commenced and the Minister for Finance made the Irish Bank Resolution Corporation Act 2013 (Special Liquidation Order) 2013 (S.I. No. 36/2013). Kieran Wallace and Eamonn Richardson were appointed as joint special liquidators.

30. On the 2nd of September 2013, Mr. Philpott wrote to the special liquidators for IBRC stating that there was no debt on the property, purporting to rely on the letter dated the 22nd of August 2012. He stated that, because of this, he was objecting to any personal information being shared with any third party as part of a loan sale. Mr. Philpott also indicated that the matter had been reported to the FSO.

31. By deed dated the 28th of March 2014, IBRC agreed to sell a portion of its loan portfolio to Shoreline Residential Limited and, thereafter, Shoreline DAC (“Shoreline”). The sale of the loan book included the debt owed by Mr. Philpott. IBRC wrote to him in that respect on the 24th of April 2014. The sale of the loan book was completed on the 6th of June 2014.

32. It is clear that Mr. Philpott’s complaints about the management of his loans pre and postdated the sale of the loan book.

33. On the 7th of April 2014, IBRC wrote to Mr. Philpott confirming that the complaint regarding the mis-selling of the endowment policy had been formally closed and that there was no evidence to support allegations of mis-selling of either endowment policy.

34. On the 8th of June 2014, Mr. Philpott wrote to IBRC, once again objecting to his data being shared with any third party and further stating: “In particular you are not to share information with Shoreline the firm that IBRC have alleged to have ‘sold’ this disputed debt to.

I await the response as indicated by the ministry of finance and by IBRC with respect to this disputed debt and the issuance of the letter stating there is no debt on this property.”

35. On the 9th of June 2014, IBRC wrote to Mr. Philpott confirming the sale of his loan to Shoreline.

36. On the 10th of August 2014, Mr. Philpott wrote to the special liquidators taking issue with the sale on the basis that the loan was disputed, and again purported to rely on the letter dated the 22nd of August 2012. He also threatened to issue proceedings unless certain steps were taken by IBRC.

37. Notwithstanding the sale of the loan, IBRC continued to correspond with Mr. Philpott in respect of his complaints and, by letter dated the 9th of June 2015, confirmed that in their view, having reviewed the underlying records, a valid debt subsisted in relation to the first loan.

38. In that letter, IBRC said that the loan account: “… was included in a loan sale to Shoreline Residential Limited as it was considered to be a valid outstanding debt due to IBRCSL prior to the sale. If you have further evidence to show Account 1 was repaid in full and therefore should not have been included in the sale, please forward a copy of this evidence and we will review and respond to this evidence separately.”

39. That letter concluded by saying that if Mr. Philpott had new evidence to bring to the attention of IBRC, particularly about the repayment of the loan account, it would be “investigated fully.”

40. On the 14th of June 2015, Mr. Philpott and Ms. Pounds wrote to the special liquidators claiming that they had cancelled the direct debit in respect of the loan as a result of the letter dated the 22nd of August 2012. In this letter, they also set out a range of complaints in relation to the alleged loan mismanagement.

41. On the 21st of June 2015, Mr. Philpott and Ms. Pounds wrote to the special liquidators confirming that they had a number of complaints “lodged” with the FSO and complaining of the way in which a Friend First Endowment policy was sold in 1988, alleging “consequential losses and failure of duty of care.”

42. On the 15th of July 2015, a final response from IBRC to the letters dated the 14th and 21st of June 2015 issued, confirming that the plaintiffs’ complaints had been considered and noting that a valid debt subsisted and that it was, therefore, appropriate to include the loan in the 2014 sale.

43. The plenary summons in these proceedings then issued on the 29th of September 2015.

44. In July of 2017, Mr. Philpott sent on two further FSO complaints to IBRC. A response issued on the 28th of July 2017, confirming IBRC’s view that the issues had been previously raised and fully addressed. IBRC also rejected a complaint concerning the impartiality of the person investigating Mr. Philpott’s complaints. The letter again deals in detail with the underlying debt complaint.

45. The above is a summary of the lengthy engagement between the plaintiffs and IBRC over a period of seven years (2010-2017) in relation to the complaints that Mr. Philpott had in respect of the management of his loans and related matters. It is clear that there were also complaints made in parallel to other agencies such as the FSO, the Central Bank and the Data Protection Commissioner, and that Mr. Philpott was receiving assistance in these matters from Ms. Pounds.

46. It seems to me that the root cause of many, but not all, of the plaintiffs’ grievances is the letter dated the 22nd of August 2012. Notwithstanding the fact that the position of IBRC was clarified within days, Mr. Philpott’s approach was to proceed on the basis that the outstanding sum was not due and owing.

47. I note that nowhere is it averred that the sum was in fact discharged by him.

48. There matters rested until 2024.

49. On the 20th of March 2024, Pepper Finance Corporation (Ireland) DAC (“Pepper”), acting as service agents for Shoreline, issued a demand letter to Mr. Philpott. On the 16th of April 2024, Pepper took steps to appoint a receiver over the lands, the security for the first loan.

50. Correspondence from the plaintiffs revived on the 15th of May 2024 when they emailed IBRC’s solicitors (apparently in response to an email dated the 22nd of June 2017) complaining, inter alia, of the wrongful classification of a 1930s haybarn as a residential investment property and assignment of an Eircode. I record this, as a not insignificant part of the hearing before me was spent by counsel for the plaintiffs on these topics. This email also contained allegations of fraud and corruption, and stated that “all your manifestly false assertions are refuted.”

51. On the 30th of May 2024, IBRC’s solicitors responded, pointing out that it had been seven years since their last correspondence and that the loan had been sold some ten years previously.

52. They stated that IBRC had not had any interest in the loan account or related security during that ten-year period and indicated that any issues concerning the status of the loan account should be more appropriately raised with the subsequent holders of the legal and beneficial interest in the loan and security.

53. It was also indicated to the plaintiffs that Pepper appeared to be acting as service agents for Shoreline in relation to the management of the loan, and the plaintiffs were advised to liaise with them.

54. There followed some further email correspondence from the plaintiffs complaining about the classification of the loan. By letter dated the 18th of June 2024, IBRC pointed out that, as had already been indicated to the plaintiffs by the Central Bank, the classification of the loan should be addressed with the lender and service agents. It was expressly stated that IBRC was a stranger to the operation of the loan following its sale.

55. On the 15th of July 2024, the plaintiffs initiated separate High Court proceedings against Pepper seeking an interlocutory injunction restraining the sale of the lands. Stack J. determined that there was a serious issue to be tried and granted the injunction.

56. The hearing before me proceeded on an agreed basis with IBRC and KPMG making their applications first; to be followed by a response from the plaintiffs wherein they moved their application to join the proposed State defendants. The position of the proposed State defendants was then outlined. This was a sensible approach which was of great assistance in efficiently identifying the applicable principles.

Legal Principles

IBRC’s Application to Strike Out

57. The essential position advanced by IBRC is a relatively straightforward one. They say that before the plaintiffs could issue proceedings against IBRC, they needed to obtain the leave of the Court pursuant to section 6 of the 2013 Act, which they failed to do.

58. IBRC opposes the granting of leave on two related bases. Firstly, it is submitted that the Court should resist the application to retrospectively grant leave because the conduct of the plaintiffs in the proceedings and the resultant prejudice to IBRC has disentitled them from obtaining relief.

59. Secondly, it is submitted that relief should be refused because it would be futile. This argument is made on the more general grounds that the inordinate and inexcusable delay in this case is such that an application to dismiss the proceedings, if leave to bring proceedings was granted, would inevitably succeed.

60. It is difficult to identify precisely what is advanced by the plaintiffs in relation to the question of section 6 leave. The written submissions make the point, which is not further developed, that the plaintiffs did not have legal representation when the proceedings issued.

61. A general point is made that previous section 6 cases did not involve building society members and that the difference between them and large commercial borrowers should be recognised by the Court. It is also said that one approach is to see if the plaintiffs have made out a stateable case. They say, broadly, that serious issues have been raised, which the plaintiffs are entitled to have decided at trial.

62. They also “reject” any claim of delay.

63. Section 6(2)(b) of the 2013 Act provides: “(2) Subject to subsection (6), with effect from the making of the Special Liquidation Order….

(b) no further actions or proceedings can be issued against IBRC

without the consent of the Court”

64. Clearly, this section confers a discretion on the Court. An analysis of the way in which that discretion is to be exercised can be conducted by reference to similar provisions of the Companies Acts.

65. Section 222 of the Companies Act 1963, later replaced by section 678 of the Companies Act 2014, provided: “When a winding-up order has been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.”

66. Section 222 is itself a replication of section 231 of the U.K. Companies Act 1948.

67. I do not think there is any real dispute between the parties as to the applicability of Wright-Morris v. IBRC Ltd (in special liquidation) [2014] 3 I.R. 468 where Laffoy J. held: “Although the wording of s. 6(2)(b) of the Act of 2013 is somewhat different to the wording of s. 222 of the Act of 1963, and s. 6(2)(b) was specifically enacted as a substitute for s. 222, I consider that the court’s discretion in relation to each provision should be exercised in the same way. Accordingly, the criterion which the court should apply is whether it is right and fair in the circumstances for the court to give consent to the proposed proceedings.” (Emphasis added.)

68. In Re MJBCH Ltd (In Liquidation) [2013] 1 I.R. 407, Finlay Geoghegan J. considered whether, on a proper construction of section 222, a proceeding commenced against a company which has already been the subject of a winding up order without the leave of the Court is a nullity, or whether such a proceeding is merely an irregularity and section

222 gives the Court jurisdiction to consider retrospectively making an order granting leave for the commencement of the proceedings, which has the effect of validating the proceedings already commenced.

69. Finlay Geoghegan J. held that where a provision, such as this, restricts a potential plaintiff’s constitutional right of access to the courts, it should be strictly construed, and at paragraph 20 said: “In my judgment, having regard to the purpose of s. 222 as set out above and the above constitutional principles, in the absence of express words which provide that the commencement of proceedings without leave of the court in breach of s. 222 render proceedings a nullity or which preclude the court from granting leave for commencement after the event, s. 222 should not be so construed. Whilst s. 222, by its express words provides ‘no action or proceeding shall be proceeded with or commenced against the company except by leave of the court’, it does not provide for the consequences of the commencement of an action without leave of the court. Further, while the words ‘except by leave of the court’ are open to the construction that leave should be obtained prior to commencement, it does not appear to me that, having regard to the statutory purpose and the necessity to construe the restriction on access to the courts strictly, that these words should be construed as precluding the court granting leave for the commencement of the action after the event.”

70. And at paragraph 21, she concluded: “Accordingly, I have come to the conclusion that the court does have jurisdiction pursuant to s. 222 of the Act of 1963, to consider granting leave for proceedings already commenced and that if such leave is granted, the order will have the effect of retrospectively authorising the commencement and authorising the continuation of the proceedings for the purposes of s. 222 of the Act of 1963.”

71. Finlay Geoghegan J. also held that the court should take the same approach, as if the application for leave was made at the time of the initiation of the proceedings, and that a plaintiff should not secure any advantage for not having obtained leave at the proper time.

72. It is also appropriate, in my view, to have regard to the general purpose of a provision of this type. At paragraph 17, Finlay Geoghegan J. said: “… It appears to me that the purpose of s. 222 is not simply the protection of creditors, but rather, primarily the purpose identified by Black L.J. in the Court of Appeal in Northern Ireland in Boyd v. Lee Guinness [1963] N.I. 49, of placing all proceedings in relation to the company being wound up by the court under the supervision of the court.”

73. In my view, the question of what is right and fair in the circumstances is very much dependent on the particular background and context of the case in which the application for retrospective leave is made.

74. The plaintiffs refer to McCaughey v. IBRC Ltd (in special liquidation) [2016] IEHC

661 where, in an application for leave, Murphy J. followed the approach set out in Wright-Morris and said that Laffoy J.’s enunciation of the legal principles was of general application. At paragraph 46, she also said: “… Another way of formulating the question of ‘what is right and fair?’ is to ask whether the applicant has demonstrated a stateable claim.”

75. Counsel for IBRC sensibly accepted that, in relation to the question of satisfying a court as to the merits of an intended action, the bar is relatively low. Indeed, in McCaughey, Murphy J. put it in the following way at paragraph 47: “The threshold for establishing a stateable claim is a low one and generally speaking, in assessing the existence of such a claim, the court should take the applicant’s claim at its highest.”

76. I think it is of some significance that Murphy J. went on to say: “… However, in exercise of its inherent jurisdiction the court is not precluded from considering the affidavit evidence on which the purported claim is based and where appropriate is not precluded from deciding on that evidence, that no stateable claim has been made out and as a consequence that it would not be ‘right or fair’ to allow the claim to proceed.”

77. IBRC argue that the analysis of what is right and fair requires a broad approach to all the relevant circumstances, to include inordinate delay, and is not simply confined to asking whether a stateable case is made out.

78. IBRC rely on the ex tempore decision of O’Moore J. in David and Elizabeth Kennedy v. IBRC (In Special Liquidation) (2020/310 COS). A note of that judgment was provided to me. In that case, O’Moore J. refused the application on the basis of the delay in bringing the section 6 application, even though he found that the intended plaintiffs had “just about” provided sufficient details of their claim of alleged fraudulent misrepresentation, which had been discovered by them in 2014.

79. Notwithstanding that O’Moore J. said that he had “enormous sympathy” for the intended plaintiffs, he found that that a delay between December 2018 and the bringing of the application in October 2020 had not been satisfactorily explained.

80. He also acknowledged that the grant of leave would make it difficult for the special liquidators to conclude the liquidation by the end of 2022.

81. Una Gilligan v. Faxgore Ltd (In Liquidation) [2021] IEHC 605 was another case involving an application in the context of a liquidation. Having reviewed the authorities, Stack J. held at paragraph 18: “In my view, therefore, a consideration of what is ‘fair and just in all the circumstances’ does not entail any consideration of the merits of the proceedings, and leave will in general be granted unless the applicant could just as conveniently bring his claim in the course of the winding up proceedings, or unless the proceedings may be said to be frivolous and/or vexatious or deemed to fail, which is that, taking the plaintiff ’s case at its highest, it simply cannot succeed. One aspect of such a claim may be that a plaintiff ’s claim is statute-barred, which is I think why Laffoy J. in Wright-Morris recognised that an application for leave could be refused where the claim was ‘clearly’ statutebarred.”

82. At paragraph 19, Stack J. said: “I do not think that this analysis is, in practice, very far removed from the approach urged on me by the applicants. They are correct to point to the relevance of a benefit if proceedings are issued or a prejudice to an applicant if leave is refused, and this is a material consideration, albeit, as I think is demonstrated by Crumb Rubber, it is linked to whether the proceedings could be said to be futile. Allied to the recognition by Laffoy J. that leave can be refused if proceedings are clearly statute-barred, it seems to me that the question of a potential benefit or prejudice to an applicant can be regarded as one aspect of a more general consideration, which is whether it would be futile to grant leave.”

83. McCambridge v. Anglo Irish Bank Corporation Ltd [2016] IEHC 327 was another case involving a section 6 application. O’Regan J., in applying the Wright-Morris test, said at paragraph 24: “Effectively, therefore, in order to determine what is ‘right and fair in the circumstances’, the court must have regard to the nature of the claim being advanced by the plaintiff beyond mere assertion.”

84. I am satisfied that there is nothing in the authorities, nor in principle, which supports the proposition that section 6 of the 2013 Act does not apply to litigation concerning the loan at issue here, or that it was reserved for, or limited to, cases involving large commercial borrowers.

85. In relation to the issue of futility, IBRC submits that an application to dismiss the proceedings for want of prosecution and/or inexcusable and inordinate delay would inevitably succeed.

86. The legal test to be applied in an application of that sort has been recently analysed and recast by the Supreme Court in Kirwan v. Connors [2025] IESC 21.

87. The opening paragraph of the judgment of O’Donnell C.J. reads: “This appeal is the first occasion since the passage of the 33rd Amendment of the Constitution on which this Court has had an opportunity to consider the test first outlined in Primor v Stokes Kennedy Crowley [1996] 2 IR 459 (‘Primor’) in which this Court held that the courts have a jurisdiction to strike out proceedings for want of prosecution and/or delay, and the relationship between that jurisdiction and other provisions in which a plaintiff ’s claim might be dismissed without proceeding to a full hearing. The appeal was originally heard by a panel of five, and then reargued before an expanded panel of seven. This reflects both the importance of the issue, and the desirability of seeking an authoritative statement of the circumstances in which a case may be dismissed by a court for want of prosecution.”

88. Kirwan makes it clear that not only does a plaintiff have an interest in bringing a claim initiated by him/her to trial, that plaintiff has a responsibility to do so.

89. In identifying the deficiencies in the long established Primor test, O’Donnell C.J. said at paragraph 23: “The weakness of the Primor test as revealed by subsequent experience is firstly, that it involved a balance of a number of factors giving rise to a necessarily subjective and contestable conclusion, resulting in lengthy hearings and appeals. Second, it proceeded on an assumption that the jurisdiction was an interference with a right of access to court, and which required particular weighty justification, and therefore tended against dismissal of even very stale claims. Third, the test did not recognise, and therefore did not give sufficient weight to, the fact that lapse of time alone is harmful to the administration of justice, and should be a sufficient basis in itself for dismissal of proceedings.”

90. The proper approach to be taken, which is binding on me, was identified by O’Donnell C.J. in the following terms at paragraphs 26-27: “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 plaintiff 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.

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.”

91. O’Donnell C.J. went on to say that “culpable plaintiff inactivity is a significant part of the calculation” and that a court should focus on what it is a plaintiff ought to have done and failed to do.

92. The test in Kirwan does not feature at all in the plaintiffs’ written submissions. In the course of the hearing, counsel for the plaintiffs instead placed emphasis on the dissenting judgment of Collins J. As stated above, I am of the view that the reformulated test is binding on me and must be applied to the facts of this case.

93. IBRC also points to a number of factual matters to establish what it says would amount to real prejudice if the Court was to grant leave. IBRC went into liquidation twelve years ago and this liquidation is almost complete. These proceedings would interfere with the special liquidator’s obligation to conclude the liquidation as soon as possible.

94. It is submitted that IBRC sold the loans ten years ago and that none of the personnel involved in the management of the loan are current employees. It is also asserted that securing the attendance of former employees to give evidence may be difficult and that the passage of time will have a negative impact on recollection.

95. The plaintiffs’ written submissions do not deal directly with delay as a topic, beyond a bald rejection of any claim of delay. In circumstances where the proposed State defendants argue that any claim against them would be statute-barred, the plaintiffs say that insofar as the Statute of Limitations 1957 is concerned, it is section 71 (postponement of limitation period in case of fraud) that is applicable to their claim, not section 11 (limitation of actions of contract and tort and certain other actions).

96. Despite the voluminous affidavits filed by the plaintiffs, it is very difficult to find anything therein which actually engages with, still less explains, the delay in these proceedings.

97. In a replying affidavit of Ms. Pounds dated the 19th of December 2024, paragraph 26 is headed “Inordinate delay in discerning the extent of the discrepancies/conspiracy.”

98. The full paragraph reads: “I say that it was only this year (2024) as part of gathering the evidence of the discrepancies for law enforcement that I discovered the Arthur Cox 11 January 2013 letter from ‘White Horse Mortgage Services’ with the reference ‘AC-INBS- Counsel-821’. It was only this year (2024) that a 7 day letter of demand arrived from the ‘Home reversion/Retail Credit Firm’ Pepper Finance Corporation (Ireland) an ex-GE Capital Group company which did not refer to the ‘113 acres Bohernacrub’ in the spreadsheet after more than 12 years of receiving documents about a residential property and the MARPS.” (Emphasis in the original.)

99. This is very difficult to understand. It does not engage with the clear evidence that IBRC is a stranger to Pepper’s management of the loan. Further, the reference to a 2013 letter from White Horse Mortgage Services in this context is very peculiar.

100. That letter, written on behalf of IBRC, noted that the plaintiffs might be experiencing difficulties in making payments and advised that they get in touch to discuss this issue.

101. In the same affidavit of Ms. Pounds, at paragraph 17, she appears to say that she did in fact speak to and was “interviewed” by a named person at White Horse Mortgage Services after receiving the letter in 2013. Mr. Philpott also references making contact with the same individual, after receiving the letter, in correspondence with the special liquidator in 2015. It is, therefore, difficult to understand the reference to the letter being discovered in 2024.

102. It is clear that the plaintiffs were written to at the time of the loan sale, and that they took no steps to prevent the transfer of the loan.

103. In a further affidavit of Ms. Pounds dated the 28th of February 2025, at paragraph 8, she asserts under the heading “DELAY BY THE DEFENDANTS” that the defendants were duly served in 2015, and that they were fully aware of service. I will return to the question of service later in this judgment.

104. In the same affidavit, paragraphs 9-24 are headed “PURPORTED DELAY BY THE PLAINTIFFS.” Paragraph 9 says: “I say that the engagement with the Department of Finance over the years, the lack of output from the Financial Services Ombudsman (FSO) who failed to deal with the complaints raised once access had purportedly been restored and the lack of output from the Data Protection Commission (DPC) further to the 2019 discovery of the eircode associated with the ‘residential buy-to-let investment property’ formed part of the delay in advancing the unsecured creditor claim.”

105. In fact, the FSPO did deal with the complaints in 2018. That office wrote to Mr. Philpott on the 17th of June 2024 in the following terms: “I refer to your recent communications, including your email today.

I note that your complaint which was made to this Office in 2015, was recognised by this Office as essentially comprising a challenge to the validity of the sale of a mortgage account from IBRC to Shoreline, in circumstances where you said you had never sought to have a customer relationship with Shoreline, and never wished to become a customer of that entity.

For that reason, you were advised by this Office in 2018, that such a matter was not appropriate for investigation by the FSPO and would more properly be dealt with by way of plenary litigation before the Courts.

In those circumstances, your recent reference to the designation of an Eircode to a structure which you describe as a haybarn, does not appear to alter this position and, accordingly, I am writing to advise you that the FSPO does not consider it appropriate on the basis of the information that you have made available, to re-open this file which was closed in May 2018.” (Emphasis in the original.)

106. At paragraphs 10-11, she refers to matters that she learned of in December of 2024, which does not appear germane to the issues under consideration as that postdates the issuing of the plaintiffs’ motion seeking declaratory relief.

107. There are then a number of paragraphs again referring to the White Horse Mortgage Services issue.

108. At paragraph 20, Ms. Pounds says: “… I have personally been navigating a series of health matters since December 2017 and have had 3 surgeries July 2023, February 2024 and July 2024 and have been recently (January 30 2025) been offered to be part of a drug trial which I am presently navigating.”

109. Counsel for IBRC submitted that this was the first time that they had been made aware of any health issues. I note that there is nothing in the nature of a medical report exhibited to support, explain or develop what is deposed. This could not, in any event, explain the delay on the part of Mr. Philpott. Counsel also submitted that, even taking this at its height, there is still a two-year delay between issuing the summons and any question of illness arising.

110. In relation to this aspect of the matter, counsel for the plaintiffs asserted that Ms. Pounds was “looking after the proceedings” and that “Mr. Philpott is a farmer. All he knows is about pedigree cattle.”

111. An extraordinary feature of this case is that a statement of claim remains undelivered.

112. The application to join the proposed State defendants in this case does not follow the conventional approach where a draft statement of claim would ordinarily be exhibited in a grounding affidavit. O’Moore J. in Kennedy and Laffoy J. in Wright-Morris both appeared to have the advantage of being able to assess a draft statement of claim.

113. A curious development in the case came when counsel for the plaintiffs offered to hand in the statement of claim from the separate Pepper proceedings. When I pressed counsel on why there was no statement of claim in this case, I was told that there was a “draft.” I was then told that this could be made available to me the following day, but its form was dependent on the application to join the proposed State defendants.

114. This topic was returned to later in the hearing, at which point counsel for the plaintiffs suggested that two statements of claim could be provided because of “the conduct” of the State and that directions would be sought from the Court in that regard. I indicated that it was a matter for the plaintiffs to elect how to proceed but that in the absence of an agreement, it would be inappropriate for me to receive any draft statement(s) of claim at that stage of the proceedings.

115. It does not appear that any draft statement(s) of claim were delivered to the defendants, and certainly nothing was provided to the Court.

116. In circumstances where the only pleading delivered was the plenary summons, the terms of which are outlined above, it is difficult to disagree with counsel for IBRC when she said during the hearing that they are “none the wiser” as to the nature of the claim.

117. The motion issued by the plaintiffs on the 16th of August 2024 seeks nine declaratory reliefs. A flavour of the reliefs sought is: a declaration that the property owned by the second named plaintiff and enjoyed by the first named plaintiff is agricultural land and does not include residential property; a declaration that there was no default by the second named plaintiff on the “‘Top-up’ loan”; and a declaration that the principal mortgage and the “top-up” mortgage were not non-performing residential mortgages.

118. It is not at all clear to me how any of those reliefs could be granted on an interlocutory basis given that they are cast as final orders. It appears to be a very irregular attempt to entirely recast the proceedings in the absence of a statement of claim. However, the timing of that motion is significant in my view.

119. I am of the view that not only is there an available inference that these proceedings were revived because of the steps taken by Pepper, having regard to all of the circumstances, it is an irresistible one.

120. In opening her case, counsel for the plaintiffs seemed to openly acknowledge that the case had been “revived”, which had been “triggered” by the conduct of Pepper.

121. In exchanges between the Court and counsel in relation to the inaction of the plaintiffs, it was at one point submitted that there was “no damage arising” until Pepper took steps and acted like a “rogue.”

122. I expressly asked whether the position of the plaintiffs was that the proceedings were not advanced because there was no damage until Pepper acted, and whether this was a conscious decision by the plaintiffs not to progress the proceedings. Counsel indicated that this question would be addressed after instructions were taken. It was not further addressed.

123. When I characterised the proceedings against these defendants as “dead” until Pepper acted, counsel replied “I can’t agree and I can’t disagree.”

124. The hearing before me was suffused with references by counsel for the plaintiffs to actions alleged to have been taken by Pepper. The plaintiffs may well have a legitimate grievance with Pepper, and for the avoidance of doubt, I make no comment on that either way. What is clear, however, is that a complaint against Pepper cannot, without more, be transmuted into a cause of action against another party.

125. It seems to me that the salient factors to be taken into account, in applying the Kirwan test, are as follows:

• The delay between issuing proceedings and the issuing of the declaratory motion is almost nine years, which is far beyond the five-year period identified at the most serious end of the spectrum in Kirwin;

• Not a single procedural step was taken by the plaintiffs during that period;

• While the plaintiffs were historically vocal in making complaints about breaches of their rights, no correspondence issued from them to IBRC between July 2017 and May 2024, a period of almost seven years;

• The loans in question were advanced 35 and 31 years ago, and were sold by IBRC some eleven years ago;

• No step was taken by the plaintiffs to prevent the sale of the loan despite the fact that they were on notice of it;

• The fact that a company is in liquidation is itself a relevant factor;

• A statement of claim has never issued in the case;

• The delay in this case remains almost entirely unexplained;

• I am also satisfied that the delay was a conscious and deliberate strategic choice that does not arise from some lack of understanding, infirmity or disability;

• It seems to be accepted that if the proceedings are allowed to continue, having regard to all of the steps not taken and which require to be taken and the extant motion, it could be another period of several years before the case would be ready for hearing;

• No “exigency of justice” or “exceptional situation” has been identified or established.

126. I find it difficult to identify a cause of action against IBRC, still less a stateable case. The manifold assertions in this case and multiplicity of complaints to agencies such as the FSPO, the Central Bank and the Data Protection Commissioner do not assist in identifying the case against IBRC. In my view, the issued plenary summons floats like a piece of driftwood unconnected to any viable pleaded case.

127. Assertions of the mismanagement of loans, mis-selling, data breaches, conflicts of interest (to include conflicts on the part of solicitors), fraud and improper conduct never get beyond a level of mere assertion. Indeed, in relation to one issue on which a lot of time was spent, i.e., the improper assignment of an Eircode to the haybarn, Mr.

Richardson’s evidence that the Eircode system did not even exist when IBRC owned the loan has not been countered.

128. The lack of any clarity or concision in the actual case being made was further illustrated in the course of the hearing.

129. Rather than narrowing the issues and bringing focus to the nature of the claim, I find that the plaintiffs’ position became increasingly, and unacceptably, diffuse.

130. For the first time, unpleaded claims of unconstitutionality and incompatibility with EU law were made in relation to section 6 of the 2013 Act. The phrase “breach of EU law” was repeatedly used in a generic way.

131. There was also a suggestion from counsel for the plaintiffs that I make a referral to the CJEU. The question of a reference did not appear from the written submissions and counsel for the defendants said that it was the first they had heard of any such suggestion. In the event, no actual question was identified.

132. When counsel for the plaintiffs confirmed that they had not issued proceedings challenging the constitutionality of section 6 of the 2013 Act, it was suggested by counsel that the plaintiffs intended to do it “within these proceedings.”

133. Notwithstanding the stage at which the proceedings are at, it was suggested a number of times that the Central Bank should be made a notice party to these proceedings. This is the first time that this suggestion had been made and no motion to that effect ever issued.

134. Counsel for the plaintiffs claimed that the proposed State defendants should be liable for the actions of IBRC and Pepper without identifying any recognised legal basis for such a claim.

135. It was urged on me that a basis for KPMG’s liability was that it is a semi-state body, despite the fact that it is clearly a private professional service provider that is retained to provide services on a commercial basis.

136. The plaintiffs sought to rely on Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001, on the reorganisation and winding up of credit institutions. While counsel quoted extensively from this Directive at hearing, no argument connected to this Directive appeared in the written submissions. It is also apparent that the competent authority for the purposes of that Directive is the Central Bank, not the Minister for Finance.

137. I am compelled to the view that I should refuse to exercise my discretion to grant leave pursuant to section 6 of the 2013 Act on the basis that even the low threshold of identifying a stateable case has not been passed.

138. I am also of the view that the delay in this case is inordinate, unexplained and inexcusable and, therefore, an application to dismiss would be bound to succeed. It seems to me that the test identified by the Supreme Court in Kirwin could only admit one result. To express it another way, I am satisfied that it would be futile to grant leave.

139. In the circumstances, I do not feel the need to make any finding on the specific prejudice identified by IBRC caused by the elapse of time.

KPMG’s Application to Strike Out

140. KPMG’s application is made on two bases. KPMG firstly address the issue of delay and secondly, submit that the requirement for section 6 leave should also apply to them in circumstances where they are being sued as an “agent” for IBRC.

141. Counsel for KPMG adopted, and developed, the submissions of counsel for IBRC on the general principles in relation to delay. For all of the reasons set out above, I am also satisfied that the case against KPMG should be struck out for inordinate and inexcusable delay.

142. For that reason, I do not feel it necessary to decide the question of whether the requirement for section 6 leave can be extended to a party being sued on an agency basis.

143. For completeness, I should say that KPMG put evidence before the Court of specific prejudice that arises because of the elapse of time. This included the fact that relevant employees dealing with the liquidation were no longer employed by them, and one such employee had in fact passed away. A senior director who had significant involvement with IBRC had also passed away.

144. The point was also made that KPMG provided advisory and administrative services to IBRC and had no role in determining whether loans were performing or nonperforming, categorising loans or deciding which loans were to be included in a given portfolio.

145. In opening his case, counsel for KPMG submitted that they were never served with the proceedings. This was consistent with the position adopted in the written submissions filed by KPMG on the 30th of June 2025.

146. In a somewhat staggering development, when the hearing before me recommenced after lunch on the first day, it transpired that an affidavit of service dated the 26th of August 2024 had been provided to counsel for KPMG.

147. This was sworn nine years after the summons was said to have been served. Counsel sensibly elected to proceed with the case, rather than object to its admissibility or look for time. No explanation has been forthcoming in relation to how this came to pass in the middle of a hearing where service was clearly part of the case that KPMG was making.

148. It was submitted, and I accept, that this further demonstrates an approach to the litigation by the plaintiffs which underscores a lack of confidence that the proceedings would be prosecuted with anything close to the required efficiency if they were allowed to proceed.

149. While IBRC did not take a service point, I was informed that they also have no record of having been served with the plenary summons.

150. In light of the above conclusions, the question of joining the proposed State defendants to the proceedings does not, in practical terms, arise. All of the above considerations and conclusions in relation to delay and futility would apply.

151. I do note the significance of the timing of the application to join the proposed State defendants. This came after the motions to dismiss issued by the defendants. It can only be concluded that the defendants’ motions precipitated the application to join the proposed State defendants.

152. The test for joining a co-defendant set out in Order 15, rule 5 of the Rules of the Superior Courts was not referred to by counsel for the plaintiffs, and at no stage was a date identified on which it could be said that a cause of action accrued against the proposed State defendants.

153. For completeness, and in circumstances where a number of serious allegations were made in the course of the hearing, I should say that counsel for the proposed State defendants made a cogent submission to the effect that no cause of action had been identified against them. Further, the notice of motion dated the 16th of August 2024 claims a number of declaratory reliefs, none of which could be given effect to by the proposed State defendants.

154. Counsel also submitted that even insofar as any stateable complaints could be identified in any of the filed affidavits, they were manifestly statute-barred as against the proposed State defendants. While it is unnecessary to decide this issue, it is difficult to disagree with that submission.

155. Counsel for the defendants and the proposed State defendants all complained of serious allegations made during the course of the hearing, many of them for the first time and without any evidential basis.

156. Certainly, there were wide ranging allegations of fraud, dishonesty, concealment, misrepresentation, criminal behaviour, breach of duties and so on. It was suggested that the IMF, the Central Bank and “Europe” had been lied to by both the defendants and the proposed State defendants. These allegations also extended to parties not before the Court.

157. I do not propose to traverse the detail of these allegations any further. Suffice it to say that the hearing was replete with them. While counsel should always be free to make a robust presentation of their case, I will confine myself to saying that allegations of this sort, without an evidential basis, ought not be made in this way.

158. I propose to make the following orders:

• An order refusing leave to the plaintiffs to continue the proceedings against the first named defendant;

• An order striking out the case against the second named defendant;

• An order refusing the relief sought by the plaintiffs to join the proposed codefendants;

• It also seems appropriate to make an order striking out the plaintiffs’ remaining motion dated the 16th of August 2024.