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Debtor unable to establish that delay in proceedings prejudiced his defence
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Court of Appeal dismisses appeal from High Court, and affirms refusal to strike out a claim by way of summary summons in the sum of €250,000, where the summons was issued in 2012, service was not effected until 2015 (following an order of substituted service), and a notice of intention to proceed was issued in 2017, on the grounds that, even if the delay was inordinate and inexcusable: (a) the case was a 'pure documents' case, based on a signed contract that had not been contested by the defendant on affidavit; (b) the debtor had contributed towards the delay, in that service required a court order and he did not enter an appearance for two years after service on him; (c) the claim that the debtor that he was impecunious did not affect the validity of the debt; and (d) accordingly, the debtor was unable to establish sufficient prejudice as to sway the balance of justice in favour of dismissing the action.
Whelan J (nem diss): Application to dismiss action - delay or want of prosecution - renewal of summary summons - claim for €250K - summons issued in 2012 - renewal of summons in 2015 - attempts to serve - substituted service - 2017 notice of intention to proceed - appearance entered - application to strike out - whether delay inordinate or inexcusable - balance of justice - factors affecting discretion of court in considering balance of justice - a 'pure documents' case - whether debtor prejudiced by the delay - whether debtor contributed to the delay - need to demonstrate prejudice - debtor's experience of litigation.
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