Everyday Finance Designated Activity Company [Trading as Link Financial] v Scott and Ors

[2026] IEHC 198 THE HIGH COURT RECORD NO. 2015/2267 S BETWEEN: EVERYDAY FINANCE DAC TRADING AS LINK FINANCIAL PLAINTIFF AND DAVID SCOTT, PAUL MURRAY AND WILLIAM O’BRIEN DEFENDANTS JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 31st day of March 2026 INTRODUCTION 1. This judgment is given in an application by the third defendant, Mr. O’Brien, seeking an order pursuant to Order 122, rule 11 of the Rules of the Superior Courts dismissing the proceedings for want of prosecution, or, in the alternative, an order dismissing the proceedings on the grounds of inordinate and inexcusable delay in the initiation and prosecution of the proceedings. 2. The underlying proceedings were commenced on the 11 December 2015 by way of a summary summons issued by the then plaintiff, Allied Irish Banks plc (the Bank). In June 2024, the current plaintiff was substituted as plaintiff following an assignment of a loan portfolio that included the underlying debts and security at issue in these proceedings. As will be explained, the issues in this application concern the manner in which the Bank progressed, or failed to progress, the proceedings up to the issue of this motion in April 2021. 3. In the underlying proceedings, the Bank sought the recovery of principal debts owed by Johanna O’Brien, the late mother of the third defendant, and the second defendant. Those debts were claimed on foot of loans advanced in connection with property developments in County Cork. The third defendant was sued on the basis of a claim that in May 2010 he had given a personal guarantee in respect of the repayment of the loans made to his mother and the second defendant. The initial transactions that gave rise to the loans occurred in 2006, and further advances were made as the development progressed. 4. Unfortunately, the third defendant’s mother died in 2013; and, to date, it appears that no grants of representation have been taken out by her family. Hence, in November 2015, on the Bank’s application, the first defendant was appointed as administer ad litem to Ms. O’Brien’s estate in order to defend these proceedings. In May 2017, judgment in default of appearance was obtained as against the second defendant. 5. The plaintiff's application for summary judgment has not been heard or determined at this point. The parties have exchanged a volume of affidavits. As matters stand, the plaintiff considers that the application for summary judgment can be determined by reference to the affidavits and underlying exhibited transaction documents. For his part, the third defendant strongly contests the application for summary judgment and believes that the case will have to be determined by a plenary hearing. While it appears that the third defendant accepts that he executed the guarantee which is the subject of the proceedings against him, he has disputed the Bank’s entitlement to call in the guarantee and raised issues in relation to several matters 2 relating to the original loan transactions. These are not matters that the court can or should seek to resolve or comment on in detail in this application. 6. While the notice of motion is not entirely clear in this regard, at the hearing of this application counsel for the third defendant explained that the application was being made both in relation to the O. 122, rule 11 dismissal for want of prosecution jurisprudence and also in respect of the O’Domhnaill v. Merrick [1984] IR 151 line of authority relating to the impact of the delay in the case on the potential fair trial of the issues. 7. In fairness to the third defendant, the O’Domhnaill v. Merrick argument was not pressed strongly. In circumstances where I have concluded that the third defendant should be granted an order pursuant to Order 122, rule 11 dismissing the proceedings for want of prosecution, it is not necessary to address the O’Domhnaill v. Merrick element in this application. Hence, the focus of the judgment will be on the application to dismiss the proceedings for want of prosecution. CHRONOLOGY 8. At this point it would be helpful to set out a chronology of the proceedings as they concern the claim against the third defendant: • 14 May 2010: Third defendant signs the personal guarantee. • 25 November 2014: A formal demand is made on foot of the guarantee. • 11 December 2015: The summary summons issues. • 10 November 2016: An appearance entered by the third defendant. • 13 June 2017: The bank issues its notice of motion grounded on affidavit seeking summary judgment. 3 • 11 July 2017: First return date for the summary judgment motion. • 24 October 2017: Third defendant files a replying affidavit. • 7 November 2017: The application is adjourned generally with liberty to re-enter by the plaintiff. • 25 June 2019: The plaintiff files a motion of intention to proceed. • 18 June 2020: An affidavit is sworn by Eadaoin Jackson on behalf of the plaintiff. • 4 November 2020: A letter serving motion seeking re-entry and attaching Ms. Jackson’s affidavit from June 2020 is issued. • 7 December 2020: First return date for re-entry. • 7 April 2021: Third defendant issues motion seeking to dismiss for want of prosecution returnable to the 5 July 2021. • 10 May 2021: An order is made re-entering the proceedings. • 5 July 2021: Third defendant's motion appears in the list and is adjourned to allow a replying affidavit to be filed. • 26 January 2022: Replying affidavit of Ms. Jackson is sworn and filed. • 11 March 2022: Third defendant files a replying affidavit. • 24 July 2023: Notice of change of solicitors is filed. • 17 June 2024: An order is made by the High Court substituting the current plaintiff in the place of AIB in circumstances where a global deed of transfer of loans was executed including the loans and guarantees the subject of these proceedings on the 4 October 2022. • 6 November 2024: Third defendant seeks a hearing date for the motion. • 7 March 2025: Original hearing date vacated. • 4 June 2025: Hearing date assigned. 4 WHAT PERIOD OF TIME IS PROPERLY RECKONABLE 9. As can be seen from the chronology, a significant issue to be addressed is the period of time that should be considered for the purposes of this application, and, specifically, whether the court can take into account the period of time that has passed since the issue of the notice of motion herein. 10. The third defendant states the relevant period is that from the commencement of the proceedings to date. The third named defendant was unable to point to any direct authority on this question, and the plaintiff contested that the period of time following the issue of this motion is properly reckonable for the purpose of an application to dismiss for want of prosecution. 11. The only authority that the third defendant identified to the court was a decision of Barr J. in the case of Bank of Ireland v. Wilson [2020] IEHC 646. At para. 46 of that judgment the court stated that it was faced with two periods of delay on which it could reach a conclusion, the first of which was the delay in bringing the motion on for hearing. However, Barr J. did not deal with and did not appear to have been asked to deal with, the question of whether that period of time was to be considered for the purposes of the analysis required by the then applicable test derived from Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459. In fact, as noted by Barr J., “neither party made any point in relation to the period that had elapsed between the issuance of the notice of motion and the hearing of the motion; accordingly it has not been a factor in the decision reached by the court in this case.” 12. In the circumstances, the court is not satisfied that the third defendant is correct to assert that, for the purposes of the calculation of the time periods which form part of the analysis 5 required in O. 122 r. 11 applications following the judgment of the Supreme Court in Kirwan v. Connors, that the period of time between the motion issuing and the motion being heard should be taken into account. In my view, the court properly is concerned with the period of time between the issuing of the proceedings and the issuing of the motion. The lapse of time between the issuing of the motion and its hearing may be relevant to the separate consideration of prejudice where that arises. 13. In this case, the notice of motion and the affidavits grounding the application were concerned with the proper treatment of the progress of the proceedings from their initiation to the date of the motion and any prejudice that that caused to the third defendant. It seems reasonably clear to the court that the delay between the issuing of the motion in April 2021 and the matter coming on for hearing is primarily due to a series of applications having to be made by the plaintiff consequent on the loan transfer transaction which resulted in the substitution of the current plaintiff for the Bank along with transfers of files and new solicitors coming on record. The reality is that those applications are very common applications to be heard in the High Court, and it appears to the court that the third defendant did not object to the postponement of this motion pending the outcome of all of those applications. It was open to the third defendant, in my view, to make very clear from the outset that it wished to get its motion on, and could have sought to do so in the period after Ms. Jackson filed her replying affidavit in January 2022. Instead, it took until the 11 March 2022 for the third defendant to file a replying affidavit to Ms. Jackson's affidavit and that itself was approximately six months before the transfer of loans was executed. 14. Accordingly, I have decided that, for the purpose of the O. 122 r. 11 dismissal for want of prosecution application, the court is concerned with the manner in which the proceedings 6 were dealt with by the Bank in the period between the 11 December 2015 (when the summary summons issued) and the issuing by the third defendant of his motion on the 7 April 2021. THE EVIDENCE 15. The first significant period of delay was between the issuing of the summary summons in December 2015 and the service of the proceedings on the third defendant on the 2 October 2016. There is an affidavit of personal service dated the 3 October 2016 in which the summons server in question states that the third defendant was served on the 2 October 2016. Thereafter solicitors for the third defendant entered an appearance on the 10 October 2016. The Bank obtained judgment in default of appearance as against the second named defendant on the 31 May 2017 and an Order of Fieri Facias issued on the 31 May 2017. On the 13 June 2017, the Bank issued its motion seeking liberty to enter final judgment as against the first and third named defendants. 16. This demonstrates a period of apparent inactivity on the part of the Bank in respect of the claims against the third defendant of approximately 18 months. 17. The third defendant delivered a replying affidavit sworn on the 5 October 2017. The affidavit is reasonably detailed and contains a narrative setting out the third defendant's understanding and history of the dealings and transactions that led to his giving a personal guarantee. He asserted that he was misled by the Bank throughout the process and was provided with assurances by named officers of the Bank regarding the loan and the security that would be required. Mr. O'Brien also noted that a receiver was appointed over certain of the properties involved in the transactions, and identified that any resolution with the second defendant or on 7 foot of sales achieved by the receiver would have to be credited for his benefit. These were stated to be matters that rendered the application for judgment against him premature. 18. Approximately 4 weeks later, on the 7 November 2017, the plaintiff applied to adjourn the matter generally with liberty to re-enter. The circumstances in which the application to adjourn the proceedings generally with liberty to re-enter by the plaintiff was made were quite contested at the hearing of the application. Here, the main evidence from the Bank’s side was set out in affidavit sworn by its then solicitor Eadaoin Jackson on the 18 June 2020 which grounded the application to re-enter the proceedings. In that evidence a number of reasons for the decision was given. 19. First, the Bank identified that the application was motivated by correspondence from the solicitors, who also acted for the third defendant, that the family of the late Mrs. O'Brien wished to defend the proceedings and wanted to make arrangements to take over the administration of the estate for the purposes of doing so. It can be recalled that at an earlier stage the Bank had to take the step of having an administrator ad litem appointed in respect of Ms. O'Brien's estate in order to defend the proceedings. The relevant correspondence from solicitors was sent on behalf of the family on the 10 July 2017. The Bank replied promptly to that correspondence and indicated that there was no objection to the course of action being proposed and that a notice of change of solicitor should be filed if the estate was taking over the defence of the first defendant's claim. 20. Despite that correspondence, on the 17 November 2017, the same solicitors, writing specifically on behalf of the third defendant, wrote to the then solicitors for the Bank noting that the proceedings had been adjourned generally with liberty to re-enter and not objecting to that course of action but stating that it was “on the strict understanding that our client reserves 8 the right to object to any reinstatement or re-entry of these proceedings in the future on the basis of delay, prejudice, and any other grounds of which he may be advised.” There does not appear to have been any response to that letter. 21. The second reason for the adjournment was set out by Ms. Jackson at para. 7 of her affidavit, where she stated that the rationale for adjourning the proceedings in November 2017 was that “the plaintiff and the third named defendant were in a separate discussion in respect of a private dwelling house account held by the third named defendant with the plaintiff and which was the subject of a tracker mortgage review.” 22. Ms. Jackson went on to note that subsequent to the completion of the plaintiff's investigations into the tracker mortgage of the third defendant she received instructions that the proceedings should be re-entered. She then wrote to the solicitors for the third defendant on the 20 May 2019, indicating that she had received those instructions. On the 7 June 2019, the solicitors for the third defendant replied indicating their opposition to the application to re- enter the proceedings and stating that if an attempt was made to re-enter the matter the third defendant would seek to stay the proceedings on the basis of inordinate, inexcusable and intolerable delay involved “and the oppressive nature of the conduct of the proceedings.” 23. Thereafter, the plaintiffs filed a notice of intention to proceed on the 25 June 2019. The application to re-enter was not initiated until June 2020, when Ms. Jackson swore an affidavit grounding the application. Ms. Jackson indicates that the delay was “owing to pressure of work”, but she averred that the delay had not prejudiced the third named defendant indicating that the adjournment with liberty to re-enter was sought “in order to allow the parties deal with the tracker mortgage issue and secondly where the third named defendant and his advisers at all times were aware the plaintiff would, if required, move to re-enter the proceedings.” 9 However, it can be noted that although Ms. Jackson swore her affidavit grounding the re-entry application in June 2020, the motion papers were not served on the third defendant until the 4 November 2020 with an initial return date of the 7 December 2020. 24. This would suggest a further period of apparent inactivity in the proceedings, attributable to the Bank, of 3 years (being from November 2017 to November 2020). 25. In the meantime, on the 10 November 2020, an affidavit was sworn by Denis Dudley on behalf of the Bank, which was stated to be by way of response to the affidavit sworn by the third defendant on the 5 October 2017 in relation to the claim for summary judgment. 26. The motion herein issued on the 7 April 2021, grounded on an affidavit sworn on the 26 March 2021 by Kieran O'Connell, a solicitor acting on behalf of the third named defendant. The third defendant also swore an affidavit on the 20 March 2021, which was stated to supplement Mr. O'Connell’s affidavit. 27. In his grounding affidavit Mr. O'Connell addressed the pre and post-institution delays. In relation to the post institution delay, Mr. O'Connell highlighted that while the proceedings issued on the 11 December 2015, the Bank’s motion for summary judgment was not returnable until the 11 July 2017, which was itself 19 months after the proceedings had issued and 7 months after an appearance was entered. He notes that thereafter the matter was adjourned “as per standard practice” to the 10 October 2017 and then further adjourned to allow for the third defendant to file a replying affidavit which occurred on the 24 October 2017. 28. In relation to the application to adjourn the proceedings generally, Mr. O'Connell states that the plaintiff “then unilaterally sought on the next listing of this motion on 7 November 10 2017 to adjourn the motion generally with liberty to re-enter. No reason was given for this decision at the time by the bank. I say that we did not oppose this application but made very clear that any attempt to re-enter the proceedings would be opposed at that point.” In that regard he exhibits the letter already mentioned above dated the 17 November 2017. Mr. O'Connell does not refer to the letter sent by his firm on the 10 July 2017 relating to the administration of the estate of Ms. O'Brien. 29. In any event Mr. O'Connell highlights that a further period of nineteen months elapsed before the filing of a notice of intention to proceed on the 25 June 2019 and that a further year passed before an affidavit was filed on the 22 June 2020 by Ms. Jackson together with a motion to re-enter the proceedings returnable for the 7 December 2020. Mr. O'Connell confirms that the motion was not served until November 2020. 30. In relation to Ms. Jackson's reference to discussions in relation to the tracker mortgage review, he states that this does not stand scrutiny. In the first instance he states that that reason was not communicated to the third defendant or to Mr. O'Connell's firm at the time and secondly that the private dwelling house account held by the third defendant did not form part of the proceedings and in the circumstances the tracker mortgage review had nothing to do with the proceedings. Mr. O'Connell asserted that the Bank was aware that delay was an issue on the part of the third defendant, the issue having been communicated in the letter referred to above, and in those circumstances the fact that the Bank had taken so long to actually take steps to re-enter the motion was stated to be inexcusable. 31. In terms of prejudicial delay and the ability of the third defendant to have a fair trial, Mr. O'Connell states at para. 20 “I say and believe and I am advise that the cumulative delays involved here are of such a scale and magnitude as to amount to presumptive prejudice. I say 11 that notwithstanding the foregoing, the prejudice involved in the third defendant now dealing with this case – albeit a documents case – at this remove, some fourteen years after the initial loan and eleven years after the loan offer on foot of which payment is sought, is clear.” 32. For his part, Mr. O'Brien in his replying affidavit sworn on the 20 March 2021, noted that his mother had died in December 2013 and her involvement in the issues has caused a rift in the family which he has had to deal with ever since. He also refers to the stress and depression that he has suffered from the bringing of the proceedings and the effects that this has had on his personal and financial circumstances. The third defendant avers that much of the evidence in the case is disputed and if referred to a plenary hearing will require oral evidence and cross-examination which he considers would be extremely difficult for him at this remove. He also notes that many of the Bank personnel in his view will be unavailable to give evidence. 33. On the 10 May 2021, an order was made re-entering the proceedings, and the motion for judgment was listed in the common law list on the 5 July 2021. 34. Ms. Jackson swore a further replying affidavit in relation to the motion to dismiss for delay on the 26 January 2022. In that affidavit she rehearsed the history of the transactions and the proceedings, and, at para. 10, noted that during the period 2017 to 2019, the Bank was carrying out a review of customer accounts in respect of tracker mortgage rates and that one of the third defendant’s accounts was part of an affected cohort of accounts. She stated that “while this facility does not relate to these proceedings the plaintiff's position was to adjourn the within matter generally with liberty to re-enter while the review was ongoing until the same was completed.” She stated that the third defendant was advised he had a loan facility included in the review and he was aware that the review was ongoing. 12 35. In relation to the pre-institution delay, Ms. Jackson refers back to the affidavit sworn by Mr. Dudley and indicated that the third defendant at all material times was fully aware of the position maintained by the Bank with regard to the loan facilities and his personal guarantee. She also averred that, by reference to that affidavit, the interactions going on between the parties in advance of the proceedings issuing in December 2015 were complicated by the passing away of the third defendant's mother in December 2013 and the Bank gave a period of time in order for the estate to assess the situation and take out any necessary grants of representation, even though ultimately that was not the course of action taken by the family. 36. Ms. Jackson suggested an inconsistency in the position adopted by the third defendant insofar as initially in his affidavit he alleged that the Bank was premature in bringing the proceedings but now was complaining in the delay in the institution of the proceedings. She stated that even though the proceedings were issued in December 2015, they were not progressed “as the proceeds from the receivership… were not remitted to the plaintiff until 2019. If there was any delay in this period, it is clear that same was contributed to by the third named defendant's failure to cooperate with the receivership.” 37. She also noted that between the issuing of the notice of intention to proceed and the application to re-enter the proceedings there were delays due to the Covid 19 pandemic and the issues that arose after March 2020. 38. Finally, she noted that one factor to be considered was that during the period of apparent inactivity, the Bank was actively engaging with the second defendant in without prejudice talks, which at the point she swore the affidavit – January 2020 – were stated to be at an advanced stage. 13 39. The final affidavit that the court will take into account for the purposes of this application was an affidavit sworn by the third defendant on the 28 February 2022. In that affidavit Mr. O'Brien took issue with a number of matters referred to by Ms. Jackson in her affidavits. He disputed, in particular, that there were any discussions with him in relation to the tracker mortgage review; he stated that he disputed a number of matters raised by Mr. Dudley in his 10 November 2020 affidavit, but he was postponing responding to that affidavit until the motion to dismiss has been addressed by the court. He rejected the proposition that his mother's death was in any way an excuse for delay by the Bank. He disputed that he did anything to delay the operations of the receiver appointed which he contrasts (but without any detail) to the position adopted by the second defendant. He also noted that any delays in remitting the proceeds from the receivership had nothing to do with him and were irrelevant to the separate question of the delays in the proceedings. In that regard he asserted that once the Bank decided to institute proceedings, there was a duty on them to progress with them expeditiously. He disputed that any negotiations undertaken with the second defendant can be an excuse for prosecuting the proceedings against him, and, in any event, he stated he was unaware of those negotiations and any potential outcome from them. Finally, he reiterated that the subject matter of the proceedings and the proceedings themselves have caused him his family and his relationship with his family significant damage and he sets out the difficulties that he has encountered. 40. As noted above, on the 24 July 2023 new solicitors came on record for the Bank and thereafter applications were progressed to substitute the plaintiff for the Bank and, eventually, the application herein was set down for hearing. 14 APPLICABLE LEGAL PRINCIPLES 41. Before considering the recent Supreme Court decision in Kirwan v Connors t/a MJ O’Connor Solicitors & Others [2025] IESC 21 (Kirwan), it must be emphasised that the form of proceedings chosen by the Bank carry an obligation to ensure that the proceedings should be progressed expeditiously. In my view this is a critically important factor, and the application needs to be considered in that context. 42. In Bank of Ireland v. Wilson [2020] IEHC 646, Barr J. stated at para. 41: “Where the plaintiff has elected to pursue a summary form of proceedings, he will be expected to proceed with his action relatively quickly, as that is the essence of an action provided for under the summary procedures provided for in the Rules of the Superior Courts.” 43. That statement has been quoted and reiterated by Bolger J. in Pepper Finance Corporation (Ireland) DAC v Roche [2024] IEHC 567, and by Nolan J. in Bank of Ireland v Lawlor [2025] IEHC 617, and I agree fully. The essence of the situation was explained by Lavery J. in Prendergast v Biddle (Unreported, Supreme Court, 31 July 1957): “The procedure by Summary Summons is provided in order to enable speedy justice to be done in particular cases where there is either no issue to be tried or the issues involved are simple and capable of being easily determined.” 44. Over and above the situation in more complex cases, a plaintiff in summary proceedings cannot delay the proceedings for no good reason and expect any indulgence from the court. 15 45. In terms of the applicable general principles, the parties agreed that the judgments in Kirwan governed the application to dismiss for want of prosecution. In that case, the Supreme Court delivered four judgments. The judgment of the Chief Justice was agreed with by Dunne, Charleton, O’Malley, and Hogan JJ.; and the judgment of Hogan J. was agreed with by the Chief Justice, Dunne, Charleton and O’Malley JJ. An additional judgment was delivered by Murray J., who disagreed with the majority in respect of the source of the power exercised when an application is brought to dismiss an action for want of prosecution, but which appears to be largely in agreement in relation to the manner in which such application should be approached by and disposed of by the court. Collins J. dissented in respect of the manner in which the majority proposed to approach and reformulate the test in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459. 46. The starting point is O. 122, r. 11 RSC, which permits a defendant to bring an application to strike out a proceeding where no step in the proceedings has been taken for two years. The majority endorsed the view that the court retained an inherent jurisdiction to strike out cases for want of prosecution, but that jurisdiction interacted with and was informed by O. 122, r. 11, and treated the baseline of 2 years of inactivity as triggering an application to strike out. 47. Order 122, rule 11 provides: “In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. 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 the same for want of prosecution, and on the hearing of such application the Court may order 16 the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.” 48. In this application, the third defendant issued his motion on the 7 April 2021. In the two years prior to the motion, the only steps taken by the plaintiff was to serve a notice of intention to proceed on the 25 May 2019 and to issue a notice of motion seeking to re-enter the proceedings on the 4 November 2020. O. 122, r. 11 expressly provides that a motion on which no order has been made shall not be deemed a “proceeding” within the rule. In those premises, the third defendant was entitled to issue this motion, and it is clear that there had been no proceeding for two years from the last proceeding had. 49. In his judgment, which seeks to gather together the elements of agreement and disagreement in the various judgments delivered by the court, O’Donnell C.J., at para. 26, summarised the correct approach to a motion such as this: “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 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 17 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 proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be 18 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.” 50. At para. 47 of his judgment in Kirwan, Murray J. helpfully addressed the practical question of how the court should approach the calculation of the relevant time periods, stating, with my emphasis added: “(ii) One occasionally sees judges dealing with these applications being presented with the prospect of isolating and then adding together relatively short periods of time to identify aggregate delays. This is a waste of resources. 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. (iii) The courts are well practised at identifying when there is a legitimate explanation for lengthy delays: illness, incapacity, bona fide attempts to settle or to mediate the action and the like. Clearly, in such cases, it is appropriate to view the delay as ‘excusable’ and to extract such periods from the calculation. (v) The focus is then on the total period of delay for which no reasonable or proper explanation has been proffered and whether having regard to that period 19 and its impact on the defendant and the proceedings, it is right to dismiss the case.” 51. Returning to the facts of this case, the court has identified that there was an initial period of circa 18 months between the Bank initiating the proceedings and then issuing the motion for liberty to enter final judgment (December 2015 to June 2017). The third defendant cannot be seen to have contributed to that delay. His solicitors entered an appearance within 10 days of the service on him of the summary summons. There was a further period of apparent inactivity of circa 3 years between November 2017 (when the proceedings were adjourned generally) and November 2020 (when the Bank served its motion seeking re-entry). That motion was listed for the first time in December 2020 and the third defendant issued this motion on the 7 April 2021 (prior to the determination of the application for re-entry). 52. I am satisfied that the third defendant bears no responsibility for that cumulative period of inactivity, and importantly the Bank was warned in writing in November 2017 that there already was an issue from his perspective relating to delay. 53. On its face, this demonstrates a cumulative period of inactivity of 4.5 years on the part of the Bank. This places it comfortably in the period of inactivity that the Chief justice in Kirwan said “is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.” However, it should be noted that this comment appeared to be mainly addressed to plenary cases, and the question arises as to the correct approach in summary applications. In my view, there are two separate considerations at play in this regard. First, the plaintiff made a choice to pursue a summary remedy, which itself, for the reasons set out above, import an obligation to pursue the application with 20 particular expedition. Second, the court cannot assume or predict with any certainty on the papers in this case that the matter will not proceed to a plenary hearing. 54. As noted in his judgment, and I do not understand that this aspect of the judgment was disagreed with by the majority, Murray J. noted at para 45 that whether it is just to dismiss a case for want of prosecution depends on the relationship between three variables: (i) the total length of time that the plaintiff has been inactive, (ii) the reason they have been inactive, and (iii) the impact on the defendant and the proceedings themselves. 55. In terms of the reasons for the delay, it is important to consider both periods that have been identified and to carry out that consideration in the context of these being summary proceedings. 56. The reasons given on behalf of the Bank for the delay between the commencement of the proceedings and issuing a motion for summary judgment related to obtaining remittances from a receiver and dealing with the second defendant. I do not accept that either of those matters justified the delay. It is not in the slightest bit unusual for a financial institution to have to bring proceedings against a principal debtor and a surety. There is no rule in claims of this type that the case against the surety must be postponed until matters are resolved or determined against the main debtors. 57. The decision made by the Bank appears to have been a decision that suited its needs at the time and reflected its priorities. It is true that, practically, the third defendant may have benefitted if the remittances from the receiver and some resolution with the second defendant resulted in a reduction or clearing of the principal debt. However, this did not occur, and, importantly, there is no suggestion that the third defendant was informed that the proceedings 21 insofar as they affected him were being delayed for that purpose. In effect, the Bank was perfectly capable of progressing the proceedings as against the third defendant but made a unilateral decision not to do so. 58. Similarly, I am not at all persuaded that the reason for most of the second substantial period of delay was justifiable. 59. First, in the summer of 2017, there may have a basis for thinking that the first defendant’s involvement as administrator ad litem could be terminated if a grant of representation was taken out in respect of Mrs. O’Brien’s estate. However, that matter does not seem to have been progressed at all or further discussed when the application to adjourn generally was made in November 2017. Moreover, the third defendant’s solicitors made it clear at that time that delay was a significant issue. Nevertheless, the Bank took no steps to re-enter the proceedings for approximately three years. 60. Second, the Bank has not provided a reasonable explanation as to how addressing an issue regarding a tracker mortgage held by the third defendant had any bearing on this action. This was something that the Bank was able to address, as the decision was one made by it, but the explanations were unconvincing. Again, the difficulty is that the adjournment generally and whatever may have occurred during that period was not shown to have been communicated to or agreed to by the third defendant. 61. I accept that in the period after the commencement of the pandemic lockdowns in March 2020, the Bank’s ability to progress proceedings probably was constrained. Hence, affording the Bank some level of latitude, I am willing to treat the period between Ms. Jackson swearing the affidavit and grounding the application to re-enter in June 2020 and the actual 22 service of the motion in November 2020 as being reasonably explained. However, that still leaves a total period of just over 4 years for which no reasonable or proper explanation has been proffered. 62. The impact on the defendant and the proceedings is less straightforward. The plaintiff makes the point, which I accept, that the application for summary judgment is an application on affidavit, and, subject to Mr. O’Brien’s reservation of a right to respond to Mr. Dudley’s affidavit, the application is now in a position to proceed. The application will not depend on locating or securing the attendance of witnesses or the current state of their memories. In that sense, according to the plaintiff the case is capable of proceeding fairly. However, as noted above, this is a summary application which imports an obligation to proceed with particular expedition. I am not at all satisfied that the plaintiff has provided anything close to a reasonable explanation or excuse for the excessive delays in this case. In my view, when one considers the close emphasis placed by the Supreme Court in Kirwan on the passage of time in tandem with the requirement to ensure that summary applications are progressed with expedition, this leads to a conclusion that the want of prosecution in this case warrants the relief sought by the third defendant. 63. In addition to the reasons set out above there is a variable in this case that the matter may have to be adjourned to plenary hearing. The third defendant has focused on his belief that the case will inevitably be adjourned for plenary hearing. In that eventuality, the case will face the difficulty of witnesses having to give oral evidence of events from circa 2010 and perhaps earlier. Mr. O’Brien has also pointed to the separate prejudice of having to live with these proceedings hanging over him for over a decade. 23 64. This court cannot prejudge the outcome of the application for liberty to enter final judgment, and this is not an application where the papers disclose a clear outcome. The judgment against the second defendant was in default of appearance and therefore it cannot be said that the plaintiff’s claims have been subjected to any detailed consideration or adjudication to date. I consider that the court is entitled to have regard to the possibility that the case will be adjourned to plenary hearing. If that occurs, the third defendant will be faced with meeting a case that has its origins in the period 2006 to 2010, which was commenced in 2015, and, perhaps optimistically, which will be heard at the earliest in 2027. That, in my view, raises a real issue about the fairness of any trial, and exposes the third defendant to the risk of failing recollections after such a period of time. 65. In those premises, I have concluded that the third defendant is entitled to an order under Order 122, rule 11 dismissing the proceedings against him for want of prosecution. As this judgment is being delivered electronically my provisional view is that the third defendant should be entitled to the costs of this application together with the costs of the proceedings as against the plaintiff. In case the parties wish to argue for a different disposition I will list the matter for final orders before me at 10.30 am on Thursday, the 16 April 2026. 24