Father who had gone guarantor for son successful in getting bank proceedings against him dismissed due to bank’s inordinate delay

An individual invested in property and had taken out a commercial loan with Ulster Bank Ireland Ltd. The father of this individual had gone guarantor with the bank for his son in 2006 and took out a joint loan with his son in 2009.

The son’s property speculation was unsuccessful and the bank issued court proceedings against both the father and son naming them as defendants in 2012 for the repayment of the loans. The bank sought approximately €2.5 million from the defendant’s father on foot of the guarantee and later mortgage. The father claimed he had been under undue influence from his son. There was an exchange of formal legal documents  between the parties. The case was listed for hearing in January 2015 but was adjourned to various other dates later that year.

The bank then sold the defendants’ loans and security in January 2016 to another financial institution, Cabot Asset Purchases (I) Ltd who then was substituted as the plaintiff. In February, a motion for judgment was struck out for non-attendance. In March new solicitors came on record for the plaintiff.

The father  served a notice of motion in September 2019 to dismiss the proceedings for inordinate and inexcusable delay.

The plaintiff, Cabot Asset Purchases (I) Ltd, pleaded in written submissions that delays were commonplace in the legal system and that the previous adjourned proceedings were probably adjourned with consent. They also used the excuse of new solicitors coming on record contributing further delay.

The High Court judge was not disposed to lend any weight to what he called the weak arguments advanced by the plaintiff and referred to established case law where the courts considered the ‘balance of justice’ in these circumstances.

The court held that the plaintiff’s delay in prosecuting the case was inordinate, noting that at one period the summary judgment stage had taken nine years. The court found the delay was the fault of the plaintiff and its predecessors and that the balance of justice lay in granting the motion and dismissing the proceedings against the father.

Cabot Financial Ireland Ltd v Heffernan and Others High Court, 20 December 2021 (Meehan J) [2012 No. 4437 S].

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