High Court dismisses Rule 11 applications for want of prosecution due to significant delay attributable to the defendant.

THE HIGH COURT

[2026] IEHC 473

Record No. 2015/255 S

BETWEEN

EVERDAY FINANCE DAC

PLAINTIFF

AND

MATTHEW WALES, MAIRÉAD WALES, MATTHEW WALES PRACTISING

UNDER THE STYLE AND TITLE OF WALES & COMPANY SOLICITORS

DEFENDANTS

Record No. 2017/109 SP

BETWEEN

EVERDAY FINANCE DAC

PLAINTIFF

AND

MATTHEW WALES

DEFENDANT

JUDGMENT of Mr Justice Liam Kennedy delivered on 16 July 2026.

1. Mr Wales, the first and third defendants, applies under Order 122 rule 11 (“Rule 11”) of the Rules of the Superior Courts to dismiss proceedings bearing record numbers 2015/255 S (“the Debt Proceedings”) and 2017/109 SP (“the Possession Proceedings”) for want of prosecution and/or pursuant to the inherent jurisdiction. I shall refer to the two proceedings collectively as the Two Actions. It will also be necessary to refer to proceedings initiated by Mr Wales, entitled Matthew Wales v Luke Charleton, Marcus Purcell and Everyday Finance DAC (the “Wales Proceedings”) and I will refer to the three proceedings as the Litigation.

Legal Principles

2. The principles are well established. Rule 11 provides: “In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss same for want of prosecution, and on the hearing of such application the court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the court may seem just”.

3. Both parties agreed that the Supreme Court’s decision in Kirwan v Connors [2025] IESC 21 (Kirwan) explained how such applications should be dealt with, reformulating the test previously laid down in Primor v Stokes Kennedy Crowley [1996] 2 IR 459 (Primor). In short, greater weight is given to delay with two years (the period Rule 11 identifies as a critical milestone) and there is less need to establish specific prejudice in cases of significant delay. As O'Donnell CJ observed at para. 26 of his judgment, the “passage of time is important in and of itself, and can justify dismissal of a claim without more”. The Chief Justice summarised the new formulation at paras 26 – 27, observing that the tests in paras 53 – 54 of Murray J’s judgment meant that: “26. … (i) until … 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.” The Chief Justice gave examples of “exigencies of justice”; none apply here. Murray J’s formulation, which the Court endorsed, appeared at paras 53 – 54: “53. … a plaintiff who has engaged in two years total delay should only have their case dismissed if there is a serious or significant prejudice in the form of an unavailability of witnesses or other real evidence that would not have occurred had the action been properly prosecuted. Third, a plaintiff who is responsible for unexplained total delay of twice that should expect less tolerance, and it seems to me to be entirely appropriate that after four years or more of unexplained total delay in the prosecution of a case, the court should dismiss the action if it is dependant on oral evidence so that the defendant is exposed to the risk of failing recollections that inevitably accompanies a lengthy effluxion of time.

54. Beyond that, the courts should be firm in their treatment of the conduct of the dilatory plaintiff. We have now reached a point at which the jurisdiction of the courts to dismiss proceedings for want of prosecution has been so prominent in the case law over the past three decades and the concern of the courts as to the systemic impact of delays in the litigation process so regularly repeated and well-known, that the time has come to allow High Court judges a generous power dismiss cases in which there has been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete procedural inactivity).

… I am inclined to the view that if the period of total unexplained delay is greater than five years, the court should feel free to dismiss the proceedings unless satisfied that 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 … there has been serious misconduct by the defendant in the course of the proceedings. The cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff’s delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale.” The leading judgment of Hogan J was to similar effect, observing at para. 173 that in some cases the lapse of time may justify dismissal even in the absence of specific prejudice:

“173. …This will be sufficient in some cases for a court to dismiss a claim. Factors such as reasonable excuse on the part of the plaintiff, culpability on the part of the defendant in taking steps in the proceedings themselves, absence of prejudice to the defendant, may all be relied on by the plaintiff to seek to persuade the court not to dismiss the claim. Conversely, factors such as prejudice to the defendant and active demands of a plaintiff by correspondence and, if necessary, by motion that the action be progressed will naturally strengthen a defendant’s claim.

It follows that the longer the lapse of time the more compelling such factors would require to be to persuade a court not to dismiss the claim. … one may expect that in many instances where the High Court is initially seized of an Ord. 122, r. 11 motion shortly after the initial two year period has expired it will initially adopt the case under active case management and resort in the first instance at least to the making of “unless” orders imposing strict time limits on defaulting litigants.” As to delay on the defendant’s part, O’Donnell CJ observed at paras 14 - 15:

“14. … the plaintiff has an interest in, and responsibility for, bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them.

I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted…

15. There may be cases in which there may be something which goes beyond silence and/or inactivity and reaches the level of acquiescence on the part of a defendant in the plaintiff’s delay, or indeed positive encouragement to the plaintiff to refrain from prosecuting a claim. If so, that would certainly be a relevant factor. However, unless the defendant’s conduct reaches that level, I do not think it is a valid answer to a complaint that a plaintiff has done nothing to prosecute a claim for a period of two years or more, to say that the defendant did not do so either. The clue here is in the name: the defendant’s function is to defend a claim which is brought to court.”

Background

4. The context is as follows:

a. The Debt Proceedings

The original plaintiffs, Allied Irish Banks plc and AIB Mortgage Bank (together, “the Bank”) issued the Special Summons which: (i) particularised the credit facilities (“the Loans”) which the Bank or its predecessors extended from 2005 to 2013, the security including a mortgage over Suite 26, Block D, the Cubes, Beacon South Quarter, Sandyford, Dublin 18 (“Suite 26”) and an apartment; (ii) recorded the despatch of pre-demand letters in 2014 referring to arrears and demanding immediate repayment, followed by formal letters of demand which recorded the defendants as having failed to repay the debt; (iii) claimed that €1,024,375.49 was owing on 9 February 2015.

b. The Possession Proceedings

The Bank issued the Possession Proceedings by special summons to recover possession of Suite 26, the commercial premises mortgaged by Mr Wales as security and referenced in the Debt Proceedings.

c. The Loan Sale

Everyday was substituted as the plaintiff in both proceedings after a loan sale (but it was necessary to restore the original plaintiffs as defendants to the counterclaim in the Debt proceedings).

d. The Wales Proceedings

In the Wales Proceedings, Mr Wales challenges the appointment of receivers over Suite 26, alleging trespass and claiming damages and orders preventing Everyday and the receivers from taking possession or disposing of the property.

He issued proceedings and secured an interlocutory order requiring Everyday and receivers it had appointed to vacate Suite 26 pending trial.

5. All three proceedings raise similar if not identical issues, including: (i) what, if any, debt is or was owed by Mr Wales to Everyday and/or its predecessors; (ii) whether Suite 26 stands validly charged and whether the Loans and security were validly transferred. The Possession and Wales proceedings also raise the receivers' entitlement to possession of Suite

26 and Mr Wales has also asserted a counterclaim in the Debt Proceedings.

6. While the parties provided detailed chronologies, the following dates are my key focus: a. The Bank issued the Debt Proceedings by Summary Summons on 10 February 2015. An Appearance was entered on 3 March 2015 and a motion for final judgment issued 22 October 2015. Mr Wales served his replying affidavit on 14 January 2016. On 12 May 2016, the proceedings were adjourned for plenary hearing with liberty for the delivery of the defence within 6 weeks but it was still not forthcoming. Everyday sought judgment in default against Mr Wales. On 17 October 2016 the High Court extended time for the defence, ordering Mr Wales to pay costs.

However, Everyday had to secure another order on 6 March 2017 and Mr Wales was again ordered to pay its costs. The Defence and Counterclaim was finally delivered on 24 March 2017. It claims that the Bank breached its duty to avoid conflicts and disputes the validity of Mr Wales’ signatures on the facilities (although he did not appear to dispute the existence of the loans in submissions before me). The pleading raised allegations in respect of his matrimonial proceedings, claiming that the Bank helped Mrs Wales present a false picture of their financial affairs to the court and failed to comply with orders regarding the transfer of certain properties to his name, blaming the Bank for the outcome of the matrimonial proceedings and accusing it of breaching obligations under the Consumer Credit Code by withholding basic financial services and defaming him by dishonouring cheques.

No step (in the r11 sense) appears to have been taken in the Debt Proceedings between 24 March 2017 and 2022. However, developments during that period included the loan sale to Everyday (and consequential applications) and the issuing of the Wales proceedings. The Litigation, including the Debt Proceedings is being case managed by Cregan J. b. On 8 March 2017 the Bank issued the Special Summons in the Possession Proceedings. An appearance was entered on 7 April 2017 and a replying affidavit served on 5 February 2018, nearly ten months later. On 17 May 2018 the case was adjourned to plenary hearing with liberty for delivery of a statement of claim within three weeks and a defence within three weeks thereafter (or as agreed).

The Statement of Claim and the Defence were actually delivered on 24 July 2018 and 21 October 2022 respectively. c. The loan sale agreement on 14 June 2019 led to the filing in both proceedings of; (i) notices of changes of solicitors; (ii) notices of intention to proceed on 19 June 2020 and 25 March 2025; and (iii) an order on 21 December 2020 substituting Everyday as Plaintiff, varied on 6 March 2023 to restore the Bank as Defendants to the Defendants’ Counterclaim in the Debt Proceedings. d. On or about 4 May 2022 receivers appointed by Everyday controversially took possession of Suite 26.

Mr Wales challenged their appointment and actions on various grounds. He issued the Wales proceedings, seeking a mandatory interlocutory injunction. The Court ordered possession to be restored to Mr Wales on 11 March 2023, awarding him costs of the motion. It gave directions to progress the litigation including the delivery of the Statement of Claim by 23 March 2023, followed by requests for and replies to particulars, the Defence and Counterclaim, requests for and replies to Particulars, discovery requests and discovery motions to be returnable before Cregan J on 28 July 2023.

The Wales Proceedings

7. Judgments of Mr Justice Cregan in the Wales Proceedings on 31 July 2024 and 20 May 2026 address the inspection of documents in relation to Everyday’s title and the defendants’ slip rule application to amend that judgment and the related order to address inconsequential misstatements. Everyday cites Cregan J’s conclusions: "…Mr Wales's position is entirely contrived and obstructive. Mr. Wales insists on seeking to inspect non-existent documents because that is what he says, my judgment entitles him to do. When questioned by the court as to how he proposed to inspect non-existent documents, Mr Wales refused to provide a coherent - or any

- answer." (para. 60) "Mr Wales' position is that both applications brought by the defendants should be refused and that my judgment and orders should remain unchanged. It is a wholly unreasonable and indefensible position for him to adopt and, in my view, was a position adopted by him to delay the proceedings." (para. 61) “… this error was in fact caused by the plaintiff himself and not by the defendants. The original global deed of transfer was dated 14 June 2019 ... It was the plaintiff's notice of motion for inspection which is the source of this error as it incorrectly referred to the deed of transfer dated 14 July 2019.” (para. 25) “It is noteworthy that the replying affidavit of Mr Wales sworn in respect of the Slip Rule application dated 31 March 2025 does not address this issue or admit his own mistake in any respect.” (para. 26) “as a result of the plaintiff's obduracy, the defendants were forced to issue their first application under Order 28 Rule 11 (i.e. under the Slip Rule)” (para. 30) “the court's judgment (and order) would be rendered nugatory if the court were to refuse the defendants' application to amend the judgment and order to reflect the true date of the documents. That cannot be in the interests of the proper administration of justice; it cannot be in the interests of the proper management of litigation, and it cannot be in the interest of the proper management of judicial time.” (para. 63)

8. Everyday’s position as outlined at paras 15 - 30 of its solicitor’s uncontroverted replying affidavit was to the following effect:

a. These proceedings are not inactive or dormant. They are being case managed to trial by Cregan J but progress has been frustrated by Mr Wales’ persistent obfuscation. For example, despite the proceedings being actively case managed, these applications did not issue until 7 October 2025; even then, for reasons never explained, they were only served on12 November 2025. b. The proceedings were originally initiated by the original lender. The debt transferred to Everyday on 14 June 2019 and on 21 December 2020 Everyday was substituted as plaintiff. c. The first substantial delay was Mr Wales’ delay in delivering his defence in the Debt Proceedings. Despite being given six weeks to do so on 12 May 2016, it was delivered on 24 March 2017. d. Although Mr Wales entered an appearance in the Possession Proceedings on 7 April 2017 he only delivered his replying affidavit on 5 February 2018. On 17 May 2018 the matter was adjourned to a plenary hearing on consent, with liberty for delivery of a statement of claim within 3 weeks and a further three weeks (or as might be agreed) for the defence. The statement of claim was delivered on 24 July 2018 but no defence was delivered until 21 October 2022. e. On 14 June 2019 Everyday acquired the Bank's interest in the loans and mortgage. On 21 December 2020 it was substituted as plaintiff in both proceedings. The (new) Plaintiff’s solicitors subsequently realised that the Bank should have been retained as co-defendants to the counterclaim in the Debt Proceedings and by Order of 6 March 2023 it was rejoined to that extent. f. Mr Wales has not progressed the Wales Proceedings with any urgency. Although they issued on 23 May 2022, a Statement of Claim was only delivered on 23 March 2023 after an order by Cregan J.

g. In the course of his interlocutory application, Mr Wales served a notice to produce the Deeds of Transfer and Novation concerning his Loans and the security. Everyday objected and he issued a motion for inspection on 16 November 2022. Cregan J made an order for inspection on 25 October 2024 pursuant to a written judgment of 31 July 2024. The order and judgment misstated the Deeds’ dates. Everyday sought to have the Order corrected and repeatedly offered inspection. Mr Wales opposed the amendment. Consequently, Everyday had to issue slip rule motions which were vigorously contested. There was no merit to the objections with respect to the amendments. h. Mr Wales’ obfuscation was exemplified by his appeal of Cregan J’s 4 March 2025 three-week adjournment of his inspection motion and the Related Proceedings. The appeal’s futility was noted by the President of the Court of Appeal’s ex-tempore judgment summarily dismissing the appeal. i. All three proceedings turn on written agreements. There is no suggestion that the delay has rendered such documents less reliable or less available. Notwithstanding that the validity of the receivers’ appointment is of no relevance to the Two Actions, Mr Wales's plea that such appointment is invalid is unaffected by the delay. Nor do the substitution orders prejudice Mr Wales from challenging Everyday's rights. j. Since October 2024 Mr Wales has been offered inspection of the deeds but, despite maintaining that he regards the deeds as critical to the loan transfer at issue in each action, he has not inspected them, preferring to delay proceedings to litigate the non-issue arising out of the acknowledged error in the dates in the order and judgment. Once inspection is dealt with, the actions should be ready for trial. (The affidavit was sworn on 10 February 2026 prior to the judgment of Cregan J on 20 May 2026). k. Given; (a) that the three proceedings are under active case management; and (b) the commonality of all three proceedings, it would be inappropriate to focus on any proceeding in isolation. A considerable portion of the delay has been caused by Mr Wales issuing separate proceedings without prosecuting those proceedings. In circumstances where responsibility for the delay does not fall squarely on either side, the balance of justice favours refusing the reliefs sought and permitting all three proceedings to progress to trial under the active case managed by Mr Justice Cregan.

9. Mr Wales submitted that the Debt Proceedings were characterised by significant inactivity, including: a. a 7 month delay between the 3 March 2015 appearance and the 2 October 2015 motion for judgment. He submitted, citing Everyday Finance DAC v Scott and others [2026] IEHC 198 (“Scott”), that summary proceedings should be an expeditious procedure, pursued diligently. In that case, O'Donnell J took account of a similar (eighteen month) delay in issuing such a motion for judgment. In the present case, the second and more significant period started on delivery of the defence and counterclaim on 24 March 2017. No steps were taken thereafter to progress to trial, a delay of almost 9 years. The Debt Proceedings should be dismissed for that delay - Everyday was not entitled to “sit on its hands” in these proceedings while awaiting developments in the Wales Proceedings. He denied that the proceedings were ready for trial and, citing O'Kelly v McGovern [2025] IEHC 704 (O’Kelly), noted Barr J’s rejection at para. 52 of his judgment of an attempt to justify delay in proceedings commenced in 2001 pending the resolution of separate proceedings commenced in 2023. Barr J observed that the court would not permit the earlier litigation "to be maintained in being for some indeterminate period while other

(2023) litigation is brought to finality. Justice and common sense demand there must be an end to this litigation. That point has long since passes in the present case."

10. Mr Wales challenged Everyday’s submission that the delay did not cause prejudice, citing Kirwan as confirming that delay is inherently prejudicial, particularly if recollection and contested factual accounts arise. He identified a delay between the 7 April 2017 commencement of the Possession Proceedings and its 17 May 2018 adjournment to plenary hearing, again noting the obligation to pursue summary proceedings expeditiously. He emphasised a seven-year delay after the Statement of Claim’s 24 July 2018 delivery, submitting that Everyday took no steps thereafter until the current motions issued on 7 October 2025, more than 7 years later.

11. Everyday submitted that: a. when these motions issued on 7 October 2025 the Two Actions had both been admitted to the Chancery list and were being actively case managed (along with the Wales Proceedings) since 18 March 2025, having been listed together 8 times during that period - with orders and directions as appropriate. Accordingly, unlike many delay cases, neither action was dormant. They were under active case management with a view to bringing them to trial. For that reason alone, the motions should fail. b. Everyday seeks judgment in the Debt Proceedings in respect of unpaid loans.

In the Possession Proceedings, it seeks possession of a charged property, a commercial premises mortgaged by the First Named Defendant as security for, inter alia, the Loans the subject of the Debt Proceedings. In the Wales Proceedings, Mr Wales seeks declarations that the appointment of receivers over Suite 26 was invalid. He accuses the receivers of trespass and seeks damages and orders which would debar Everyday and the receivers from taking possession or disposing of Suite 26. Accordingly, all three actions are interlinked and concern the same debt and/or Suite 26. c.

By virtue of Cregan J’s interlocutory order on 9 March 2023, Everyday and the Receivers restored possession of Suite 26 to Mr Wales pending the determination of the Wales Proceedings. To that extent, the possession proceedings could not have been independently progressed. In any event, it is clear from the pleadings in the three proceedings that they raise largely identical issues. The central issue in the Possession and Wales proceedings is the receivers’ entitlement to possession of Suite 26. At issue in all three proceedings is whether any debt is or was owed by Mr Wales to Everyday or its predecessors in title; whether Suite 26 stands validly charged and whether the Loans and associated security have been validly transferred to Everyday.

The commonality of issues is the reason for all three proceedings being case managed together and they should, in the ordinary course, come to trial together for determination by the same judge. d. No specific prejudice has been demonstrated such as would render trial of the actions unjust. The proceedings turn on written agreements. There is no suggestion that the delay renders such documents less reliable or unavailable. e. The applications are misconceived. Everyday acted with reasonable diligence; any delay is attributable to Mr Wales’ conduct. f.

Everyday acknowledged the impact of the loan sale leading to notices of Change of Solicitor and of Intention to Proceed and its application to apply to be substituted as Plaintiff before taking further steps, which was done by Order of

21 December 2020. It then proved necessary to vary that order. g. As far as the Possession Proceedings were concerned; (i) the contention that the first delay arose between the 7 April 2017 entry of an appearance and 17 May 2018, does not bear scrutiny. The Defendant only delivered his affidavit on 6 February 2018 after multiple adjournments; (ii) The Special Summons was listed on 27 April 2017, 6 April 2017, 30 November 2017, 8 February 2018 and

19 April 2018 before being adjourned on consent to plenary hearing on 17 May 2018. That delay cannot be laid at Everyday’s door; (iii) Mr Wales complains that Everyday took no steps after the delivery of the statement of claim on 24 July 2018 but he did not deliver a Defence until 21 October 2022 – more than four years later and after issuing the Wales Proceedings on 23 May 2022. j. Mr Wales has not demonstrated specific prejudice: i. All three proceedings turn on written agreements, their validity, and their proof having regard to corroborating documentation.

There is no suggestion that the delay has rendered such documents less reliable or unavailable. His bare assertion does not establish specific prejudice. In cases where contemporaneous documentation provides the main proof, courts are slow to infer trial unfairness from the mere passage of time. As Hogan J observed at para.180 in Kirwan, even after lengthy periods, delay is not “inherently prejudicial such that the prospect of a fair trial has been indelibly compromised” where issues can be examined by reference to documentary records. ii. The substitution orders do not prejudice Mr Wales’ ability to challenge Everyday's asserted rights.

His substantive defence (insofar as one exists) remains fully available, unaffected by delay. His ability to challenge the validity of the substitution orders or to raise points on the pleadings has not been prejudiced. iii. In Kirwan, while recognising that a claim might be dismissed after two years of inactivity, the Supreme Court held that a claim will generally only be dismissed at that point if there was additional prejudice or other factors. There has never been two years of total inactivity, and Mr Wales has not demonstrated any specific prejudice. iv.

The claim that Everyday acquired inside information regarding Mr Wales’ defence strategy is without foundation. k. In assessing the justice of the application the Court may consider Mr Wales’ conduct and acquiescence. Significant delays are directly attributable to him: i. His 10 month delay in delivering his Defence in the Debt Proceedings. ii. His 10 month delay after his Appearance in the Possession Proceedings in furnishing a replying affidavit. iii. His 4 year delay in delivering his Defence in the Possession Proceedings. iv. His 8 month delay in delivering his Statement of Claim in the Wales Proceedings - and only then pursuant to a court order. v.

His gratuitous appeal of Cregan J’s 4 March 2025 order to adjourn his own inspection motion for three weeks. vi. His contesting what should have been an uncontroversial slip rule application and his failure since October 2024 to inspect deeds relied upon by Everyday notwithstanding his assertion that they were critical to the loan transfer at issue in each of the three proceedings.

vii. Notwithstanding active case management by Cregan J, the progress of the three proceedings to trial has been frustrated by Mr Wales’ obfuscation. It would be perverse to reward such conduct. viii. Cregan J’s 20 May 2026 judgment in the Wales Proceedings addresses Mr Wales’s conduct in relation to the inspection issue. It arose from Everyday’s slip rule application to correct errors in references to the dates of the deeds. Mr Wales opposed the application. The passages cited above demonstrate that the judge with carriage of the Litigation found that Mr Wales has been pursuing a deliberate strategy of delay, including by opposing an error under the slip rule to correct errors that were in fact caused by Mr Wales himself, describing his refusal to inspect the documents as “obduracy”.

The findings confirm the pattern of obfuscation on Mr Wales’ part. ix. Cregan J is uniquely placed to assess the parties’ conduct, having had continuous oversight of the three proceedings. His findings that Mr Wales’s position was “entirely contrived and obstructive” and “adopted by him to delay the proceedings” are consistent with a pattern of behaviour which includes: (a) illogically refusing to inspect documents offered for inspection since October 2024; (b) causing the very error in the reference to the date of the Global Deed of Transfer which he then relied upon to resist amendment; (c) appealing a routine case management adjournment order; (d) failing to progress his own proceedings (“the Wales Proceedings”) with expedition; and (e) now bringing the within motion to strike out, notwithstanding that the proceedings are under active case management and it is his own conduct that has impeded their progress to trial. x.

The applications are not motivated by a genuine concern about delay or prejudice, but rather a desire to avoid the adjudication of the Litigation on its merits. He has not sworn to any substantive defence denying the debt or challenging the quantum. His strategy has been to raise procedural objections and to delay the proceedings which will ultimately require him to account for borrowings of over €1 million. l. The balance of justice lies in favour of letting the proceedings continue. The claims are founded on a contract in writing. There is nothing speculative about the claims and the Defendants have been on notice of them for many.

Any delay is explained and excusable. The claims are not dependant on oral recollections. The Defendants have not demonstrated specific prejudice and Everyday has acted reasonably and diligently. m. Where liability for delay does not fall squarely on either side, the balance of justice favours refusing the reliefs sought and permitting all three sets of proceedings to progress to trial under active case management. n. Kirwan expressly contemplates that the Court may, if necessary, make peremptory case management directions in lieu of a strike-out; in this case the proceedings are already case managed.

Accordingly, the present case does not fall within the category of cases where dismissal for delay is warranted.

Analysis

12. Mr Wales’ affidavits and submissions, including points not pressed in oral argument, advanced disparate arguments which were not always easy to follow and sometimes did not appear directed to the applications. I have disregarded points which I do not consider relevant to the applications. These included: (a) criticism of Everyday’s failure to exhibit title documents (in the light of the developments in the Wales Proceedings and Cregan J’s ruling, I see no merit in Mr Wales characterisation of that issue as a further example of Everyday’s failure to pursue the litigation expeditiously); (b) the extraordinary assertion that Everyday acquired “inside information regarding the defendants legal advices, litigation risks and defence strategy” rendering a fair trial impossible by virtue of having taken possession of Suite

26 for a period. The suggestion that Everyday accessed privileged material is a grave allegation, advanced by bare assertion. As a solicitor, Mr Wales should appreciate the seriousness of such claims. If there was any substance in them then he was gravely remiss in failing to bring the appropriate application at the correct time; (c) his criticisms of the adequacy of the production of copies of documents for inspection earlier and the provision of incomplete copies on occasion; (d) criticism of the failure to promptly file a notice of change of solicitor following the loan sale and challenges to the validity of the appointment of the various solicitors – Mr Wales also queries whether the solicitors who came on record were representing the original plaintiff or its successor in title but I consider that that point is misconceived and, more importantly, irrelevant to these applications; (e) attempting to relitigate and criticise Everyday’s previous conduct of the proceedings or their replying affidavits making serious allegations (such as misrepresentation, non-disclosure etc) without providing a coherent explanation of the claim or the basis for advancing it or explaining its relevance to these motions; (f) the defendant’s claims as to the legal consequences of Everyday’s failure to deliver a Statement of Claim in the Possession Proceedings within the period directed by the Master of the High Court; (g) points with regard to the substitution application, and the completeness of its exhibits; (h) points about the application to vary the original substitution order; (j) the validity of the receivers’ appointment and actions.; (i) the disclosure to the Court on the substitution applications.

Mr Wales also recounted his perspective of developments in the litigation to date, criticising how the proceedings had been dealt with. However, these motions are not a forum to relitigate earlier twists and turns of the proceedings. I have focussed on live issues emphasised by Mr Wales in oral submissions. He has not clearly articulated let alone substantiated his assertions of procedural or other impropriety, but in any event these motions would not be the forum to resolve any such issues. Nor do I consider that his references to losing his first-choice counsel imperils his constitutional and ECHR rights to a fair trial or is relevant in this context.

Nor is there any merit in his objection that the replying affidavits on Everyday’s behalf were sworn by an external solicitor - the choice of deponent was appropriate given the matters addressed (and there does not appear to be any material dispute of primary fact for the purposes of the applications). The defendant also says that the transfer to the current plaintiff should be properly pleaded but that is not an issue before me. If Everyday considers that an amendment is required it can bring the necessary application. If it fails to plead its case (and I express no such opinion) it may be inhibited at trial.

As a solicitor, the defendant understands the tools available to him if he disputes the adequacy of the pleadings and also appreciates that my present role is to deal with the motions.

13. I reject any submission that the loan sale (which the plaintiff was not party to) could justify a material delay in the litigation. AIB and Everyday are entitled to engage in such a commercial arrangement, but not to park the litigation while Everyday figured out how to proceed. The substitution orders, notices of change of solicitors and of intention to proceed do not constitute progress in the prosecution of the case for the purpose of the Kirwan analysis. Such administrative or procedural acts are not "steps" or “proceedings” advancing the proceedings towards trial within the Rule 11, having regard to the helpful explanation of the latter term at para. 43 of Murray J’s which stressed its broad meaning under Rule 11 but still:

“an act that has some degree of formality and significance and which is done in furtherance of an action … something in the nature of a formal step being either an application to the court or at least a step … which is required by the rules’ (Allen v. Redland Tile Co. (Northern Ireland) Ltd. [1973] NI 75). This has been found to include the delivery of any pleading, or in the case of summary proceedings, an affidavit. It includes applications for leave to serve interrogatories, for the provision of security for costs, an application to compel delivery of replies to particulars, for judgment in default of defence, the issuing of a motion for discovery, indeed the issuing of a motion to dismiss an action by reason of any procedural default, or the service of a notice of trial. Since the amendment of the RSC to require the delivery of a formal request for discovery before proceeding to seek orders for the making of discovery from the court, the sending of such a letter and, obviously, the delivery of an affidavit of discovery are all procedural steps within the meaning of the Rule. So are the issuing of a motion to dismiss proceedings because of a failure to make discovery, or applications for further and better discovery. Applications to admit proceedings to case management, or for directions, all come within the rule.”

14. The motions on foot of the substitution did not progress the substantive dispute. They cannot be relied upon to justify material delay in the litigation. The Bank, the original plaintiff, should have pursued the litigation diligently. Everyday succeeded to that obligation and can neither disassociate itself from any delay on the Bank’s part nor rely on the loan sale as justifying “time out” while its new lawyers determined how to proceed. It stepped into the Bank’s shoes and cannot unilaterally delay the litigation on the basis of the loan sale. Nor, in fairness, did Everyday go so far as to make such a submission. Accordingly, it remains responsible for any previous delay by the Bank. Its responsibility is not confined to the post substitution period, nor is the loan sale and the need to appoint new solicitors a justification for material delay. At most a few months’ delay might have been understandable. In fact, the time actually taken to deal with the substitution, (even leaving aside the need to apply for a variation of the order as a result of a genuine mistake) was unacceptable. It reflects poorly on Everyday and its respect for its obligations to the Court that the original substitution application should have taken 18 months even allowing for the huge number of loans possibly involved. The need to appoint new solicitors and bring a straightforward substitution application was its responsibility rather the defendant’s or the Court’s. If it chose to buy the loans and to continue the legal proceedings it should have done so diligently, committing appropriate resources. However, while Everyday and its solicitors scarcely covered themselves in glory on the substitution, my concern is the progress of the proceedings as a whole.

15. I do not consider that there was a significant delay in the possession proceedings between their commencement and the adjournment to plenary hearing nor would I regard the plaintiff as being guilty of a seven-year delay following the delivery of the statement of claim. In fact, the default during that period was on Mr Wales side given his failure to deliver his defence until 21 October 2022, although a motion to prompt him to comply would not have been remiss.

16. I agree that summary proceedings should be an expeditious procedure, pursued diligently. It should not have taken AIB seven months to issue the motion for judgment in the Debt Proceedings. However, I am mindful of the warnings of Murray J at para 47 (ii) of Kirwan that it was inappropriate and a waste of resources to focus on relatively short periods of time to identify aggregate delays: “The focus is upon whether the case is, as a whole, being prosecuted. The court should be concerned only with a conspectus examination of relatively substantial periods in which nothing is being done to move the case along – chunks of inactivity of less than six months should usually be ignored.” That delay is slightly greater than the 6 month figure referenced by Murray J but it did not materially impact on the litigation and I am disinclined to place great weight over such a relatively short historic delay in the context of the Litigation as a whole, particularly since it is dwarfed by Mr Wales’ delays.

17. I agree with Mr Wales that the existence of other proceedings does not justify a plaintiff’s unilateral decision to stall proceedings which it has initiated. Clarke J (as he then was) observed in Rodenhuis v HDS [2010] IEHC 465: “It does not seem to me that it is open to a party to take the unilateral action of allowing one set of proceedings to go asleep because of the existence of another set of proceedings and then use the connection between the two sets of proceedings as an excuse for having allowed the proceedings concerned to go to sleep. If it is truly felt that it is inappropriate for some reason not to progress a set of proceedings because of the existence of other proceedings, then it is at a minimum incumbent on the party who holds that view to raise the issue in correspondence and seek to reach agreement. If agreement cannot be reached, then it is incumbent upon the party either to progress the proceedings or make some appropriate application to the court for directions. In those circumstances, I was not satisfied that the existence of the parallel proceedings provided any significant excuse for the delay.” However, once Mr Wales chose to issue fresh proceedings (which could more appropriately have been pursued as a counterclaim in the existing proceedings) it was necessary and appropriate that the three proceedings should be dealt with together. This is precisely what happened, as evidenced by Mr Wales’ 26 July 2024 email informing Everyday’s solicitors that: “… Mr Justice Cregan directed that we write to you in relation to proceedings Record No 2015/255s and Record No 2017/109SP to Inform you that Mr Justice Cregan requires attendance from the Plaintiff in these proceedings on 31 July 2024 at 10.45 am. This letter is written in compliance with the Courts direction and our client reserves his position in relation to all the proceedings. We attended before Justice Cregan this morning the 26th July 2024 who clarified that he would not be making any decisions on the 31st July 2024 and the purpose of your attendance is so that he is made aware only as to where the above matters stand. We will be relying upon the contents of this letter on the 31st July 2024.”

18. The way the three proceedings were being dealt with also appears from para. 51 of Cregan J’s 20 May 2026 judgment which states that: “this court has been engaged in actively case managing this case – and the two linked cases – and this case has appeared on numerous occasions for mention before me for case management”.

19. It would be unfair to suggest that Everyday unilaterally chose not to pursue the Two Actions until the Wales Proceedings were resolved. Due to the commonality of issues, it was logical that all three should be case managed and brought to trial together, with all issues determined by the same judge. This is the course being adopted, exactly as envisaged by Clarke J in Rodenhuis. Any other approach would impose unnecessary burdens and expense on the parties and would be wasteful of public resources. It was an appropriate decision (with the apparent concurrence of both parties and the Court) that the three proceedings were linked and should be dealt with on that basis. Accordingly, Everyday has complied with Rodenhuis. O'Kelly involved different circumstances – the plaintiff was unsuccessfully and unconvincingly seeking to justify unilateral delay in 2001 proceedings by reference to separate proceedings commenced in 2023. In this case it was sensible that the three proceedings should progress together; in recent years the party impeding progress was Mr Wales.

20. I agree with Everyday’s submission that Cregan J has had continuous oversight of the three proceedings and is therefore best placed, to assess the parties’ conduct. His findings suggest that Mr Wales has obstructed the Litigation. His unexplained delay in serving these motions is particularly egregious and detracts from their credibility.

21. Mr Wales overstates the delay in the Debt Proceedings. However, leaving aside the delay in issuing the motion for final judgment in the Debt Proceedings, Everyday and its predecessors were responsible for at least one major inordinate and inexcusable delay which, on its face, could potentially justify dismissal - the 5 years delay between delivery of the defence in the Debt Proceedings on 24 March 2017 and the issuing of the Wales Proceedings on 23 May 2022. I do not regard the loan sale as a significant mitigant (particularly in view of the lethargic approach to taking the necessary action and the even more remarkable 27 month delay dealing with its variation). In principle, the 5 year delay may justify dismissal, depending on the circumstances. O’Donnell CJ observed in Kirwan that the court should have a “generous power to dismiss” if the period of total unexplained delay is greater than five years and should feel free to dismiss the proceedings absent a pressing exigency of justice (no such issue arises here), endorsing Murray J’s observation at para. 54 that: “The cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff’s delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale”

22. However, while Mr Wales portrayed Kirwan as a sliding scale, with the delay of 5 years mandating dismissal, the decision was nuanced. No member of the Court suggested that dismissal was an automatic entitlement, even in cases of delay of 5 years or more. To the contrary, the Chief Justice stressed at para. 27 that: “the test is not mechanical, and it remains a matter for judgement, and it will remain conceivable that individual judges may take different views in borderline cases”.

23. Furthermore, as noted above, the scales are evenly balanced as to delay. Mr Wales has contributed, a fact his affidavits and submissions largely ignored. Other than a dismissive reference to delay with the delivery of the defence, his grounding affidavit fails to explain his own defaults including; (a) the need for Everyday to bring two motions for judgment before he delivered his defence and counterclaim in the Debt Proceedings; (b) His 10 month delay in delivering a replying affidavit in the Possession Proceedings, following multiple adjournments;

(c) His 4 year delay in delivering his Defence in the Possession Proceedings; (d) His unexplained 2 month delay in serving these applications; (e) His failure to deliver a Statement of Claim in the Wales Proceedings for a full year and only then pursuant to a court order; (f) His apparent obstruction of all three proceedings, including his failure to avail of inspection facilities he himself had demanded, his gratuitous appeal and his opposition to what should have been an uncontroversial slip rule application.

24. While factors (a) to (e) showed that Mr Wales’ historic delays were at least as egregious as the plaintiff’s, (d) and (f) are particularly relevant to my exercise of my discretion in the current circumstances in the interests of justice. I am satisfied that since 2022 the delay has been largely due to Mr Wales. Furthermore, the proceedings cannot be regarded as dormant. All three cases are linked and are being actively case managed by Cregan J.

25. In the light of the pleadings in the Two Actions, I am not satisfied that Mr Wales has been prejudiced by delay. There is no credible evidence of specific prejudice due to delay and the claim which is largely a documents case. Nor, although its relevance would be debatable in any event, do I consider that specific prejudice has been shown in respect of Mr Wales’ ability to pursue his counterclaim in the Debt Proceedings or his own claim in the Wales Proceedings.

Everyday appears more likely to be prejudiced by delay than Mr Wales. Under Primor, such a

conclusion as to prejudice might have been fatal to the applications, but as O’Donnell CJ noted in Kirwan, delay must be regarded as inherently prejudicial, even without evidence of specific prejudice and I am accordingly proceeding on that basis, but also on the basis that; (i) the delays for which Everyday is responsible are not as severe as asserted by Mr Wales; (ii) prior to 2022 they were at least equally matched by the delays for which he is responsible; and (iii) since then Mr Wales has been the party primarily responsible for any delay in the Litigation.

26. That conclusion raises the question of the impact of Mr Wales’ delay. As the Supreme Court reiterated in Kirwan, the plaintiff bears the primary responsibility for the carriage of litigation -the defendant is not to be regarded as a “co-adventurer”. The Supreme Court made clear that inaction by the defendant (such as in failing to itself seek case management or to move earlier for dismissal) was not a relevant consideration. As Murray J put it at para. 50, there was no “general judicially imposed obligation on defendants to proactively prod a plaintiff into moving their case along”.

Firstly, the plaintiff cannot be blamed for periods during which Mr Wales was in default unless, perhaps, if it had failed to take effective steps to address any such issue. However, AIB secured two High Court orders to compel Mr Wales to deliver his defence so it can scarcely be faulted in that regard. All judgments in Kirwan recognised that “culpability on the part of the defendant in taking steps in the proceedings” to borrow Hogan J’s phrase, was indeed a relevant consideration. I am satisfied that there has been a pattern of inordinate and inexcusable delay on Mr Wales’ part and he has acquiesced in (and sometimes caused) the overall delay to the litigation.

Accordingly, Mr Wales’ conduct falls within what was envisaged at para. 15 of the Chief Justice’s judgment in Kirwan - going beyond silence and/or inactivity and reaching the level of acquiescence rendering it a relevant factor to the determination of the applications. Murray J expressed a similar view at para. 49: “49. … a defendant who fails to comply with orders of the court or the provisions of the Rules cannot properly invoke delay by a plaintiff as a basis for dismissing their claim where the plaintiff waits for a reasonable time for the defendant to comply with their obligations before proceeding to agitate that failure by application to court.

That is, on any version, an excusable delay.” The Supreme Court endorsed the observations of Butler J. in Campbell v. Geraghty and ors. [2022] IEHC 241 at para. 44: ‘Courts now distinguish between active delay (i.e the failure to take a step positively required) and inactive delay (i.e the failure to intervene by taking a step requiring the plaintiff to act) on the part of a defendant. The rationale for the current approach is that after institution a considerable amount of litigation withers on the vine and simply never progresses. To require a defendant to take positive steps to prod a plaintiff into action in respect of proceedings which, in all likelihood, not going anywhere on pain of not being permitted to rely on the plaintiff’s delay thereafter, would be counterproductive.’

27. Accordingly, each party’s delay and conduct, including Mr Wales’ undisputed obstructive conduct of the Wales Proceedings must be weighed. Another factor is that, although a beneficiary of equitable relief since 2022 Mr Wales has failed to commit to progress the litigation to trial expeditiously. That is hugely significant, as it was in Kirwan itself when the shoe was on the other foot, but I have disregarded it as it was not emphasised in submissions.

28. I do not consider that it would be appropriate to strike out the proceedings in 2026 for the pre-2022 delay, particularly since up to that point the dishonours were at least evenly divided between the plaintiff on the one side and Mr Wales on the other. Under the Kirwan principles, the application in the Debt Proceedings might have stood a better chance in 2022 (but of course the Kirwan decision had not been delivered at that time). Events since 2022 have rendered the dismissal of the actions for delay even less appropriate, shifting the scales firmly in Everyday’s favour on these motions.

29. The existence of the counterclaim and the Wales proceedings also militate against the relief sought (and there was no offer by Mr Wales to abandon those claims if the Two Actions were dismissed).

30. The appropriate way to address the delay in the circumstances is by case management directions to progress all three proceedings to trial. However, that is in hand. While Mr Wales denied that the three proceedings were linked and were being case managed, Cregan J is of a different view according to his 20 May 2026 judgment.

31. For completeness, Mr Wales’ affidavits did not deny receipt of the loan monies or claim to have repaid them. In oral submission, he acknowledged that the monies had been advanced and had not been repaid but seemed to regard that as of little consequence. He claimed to have no idea, even in ballpark terms, as to how much he owed. However, as Kirwan confirms, the Court will only have regard to the merits of claims and defences on such applications in limited circumstances; it was not necessary for me do so on this occasion.

32. I have also disregarded a serious matter, the fact that, having secured equitable relief Mr Wales was under a particular obligation to progress his own claim to trial without delay. As appears from Kirwan (see para. 35 of the Chief Justice’s judgment of and paras 61 - 62 of Murray J’s judgment, such delay by a beneficiary of interlocutory relief may be a factor in the balance of justice assessment). In Kirwan the plaintiff had benefitted from a stay on a judgment pending the pursuit of his separate claim, increasing the obligation on him to pursue that claim expeditiously. If the principle applies to plaintiffs benefitting from interlocutory relief, I see it no reason why it should not apply to Mr Wales in the current situation. The Supreme Court's

decision in Tweedswood & Anor v. Power & Anor [2025] IESC 18, and its earlier decision in Charleton & Anor v Scriven [2019] IESC 28 at paras 7.1-7.2 and my own decision in Charleton & Anor v Scriven [2025] IEHC 6 at paras 16 and 23-26) highlight the obligation on recipients of interlocutory relief pending trial to press on to trial expeditiously. I consider that this obligation encompassed the entire Litigation. However, Mr Wales’ interest in the pursuit of his own claim waned following his securing interlocutory relief. He should appreciate that, as the authorities cited make clear, he is not entitled to adopt a reactive approach, let alone an obstructive one and the court could lift the interlocutory order if he fails to expeditiously pursue his claim and to cooperate in bringing the entire litigation to trial. It is not appropriate that Everyday should be indefinitely restrained, and Mr Wales may be at risk of losing the benefit of the interlocutory order unless he cooperates in bringing the matter to trial. That said, rather than encouraging the parties to engage in further interlocutory manoeuvring, since the issues in the Litigation have been clearly delineated and no specific action has been identified as outstanding, the better course would be to bring the Litigation to trial forthwith.

33. Even leaving aside the foregoing matters, the balance of justice favours the applications’ dismissal. Responsibility for the pre-2022 delay is divided, responsibility for later delay rests with Mr Wales. It would be unjust to penalise the plaintiff for the pre-2022 delay when the action is no longer dormant, the litigation is progressing to trial and recent delay is primarily attributable to Mr Wales. Such relief would be disproportionate and inappropriate since Mr Wales has acquiesced in the case management of the three proceedings to trial. While the obligation to progress to proceedings falls on Everyday, it is appropriate to view the Litigation as a whole and to take account Mr Wales’ own unmet responsibilities to progress his counterclaim in the debt proceedings, his own claim in the Wales proceedings and his delays and breaches of successive directions in the Two Actions.

34. I will refuse both applications. Mr Wales is presumptively liable to pay Everyday's costs on the usual basis. If either party contends that any other order is appropriate, then they have liberty to file and serve written submissions (limited to 2,000 words) within 14 days following which the other party will have the same period within which to respond. Once the deadline for delivery of such submissions has elapsed, I will determine whether there is any need for a short hearing in respect of the costs. If not, I will determine the cost issue on the papers and final orders will be issued on the applications.

Appearances

Joe Jeffers SC and Nevan Powell, instructed by OSM Partners, for the plaintiff Matthew Wales appeared as a litigant in person.