About this case:

• Citation:
  [2026] IECA 38
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment for the Court of Appeal, Ms Justice Niamh Hyland determined that “despite the very great delay in this case”, given inter alia the “very stark and unusual nature of the allegations”, the balance of justice required that the proceedings ought not to be struck out.

Background

The plaintiffs, now deceased, were a married couple who sold a portion of land attaching to their family home in Ballyboe, Co Donegal to the first appellant company.

The plaintiffs pleaded that in 1999, the first plaintiff agreed with the second appellant, a solicitor and a director and principal shareholder of the first appellant, to sell a strip of ground of approximately 15 feet in width along the boundary of the plaintiffs’ family home for IR£6,000.

The second appellant acted as the solicitor for both sides of the conveyance, a practice now prohibited by S.I. No. 375/2012 - Solicitors (Professional Practice, Conduct and Discipline - Conveyancing Conflict of Interest) Regulation 2012.

On 1 March 2011, the Property Registration Authority (PRA) notified the first plaintiff of applications which had been made to it by the first appellant for first registration as owner of lands consisting of the lands and gardens of the plaintiffs’ family home.

The first plaintiff alleged that only when he collected the registration documentation from the first appellant’s office, did he realise that the indenture transferring the lands purported to convey more extensive lands than that which the first plaintiff had understood were to be conveyed, and that IR£6,000 was not a fair value for the additional parcels of land.

The plaintiffs alleged that the agreement was procured by undue influence and that the second appellant breached his duty of care to the plaintiffs in various respects. The appellants delivered a full defence to the claims.

In 2023, the appellants issued a motion seeking to strike out the proceedings for want of prosecution and/or inordinate and inexcusable delay pursuant to the inherent jurisdiction of the court.

The High Court

Mr Justice Rory Mulcahy concluded that the delay on part of the plaintiffs was inordinate and inexcusable up until 2021, when the Law Centre came on record following the death of the second plaintiff in 2018.

On the issue of the balance of justice, the judge referred to Cave Projects Ltd. v. Kelly [2022] IECA 245 in finding that the allegation that the appellants were prejudiced by a title action hanging over the property for an excessive period of time, was a general prejudice and did not warrant striking the proceedings out on the basis of the interests of justice.

The court considered that the only specific prejudice asserted, that the PRA treated the applications to register the title of the land parcels as abandoned in light of the delay, was not such which would justify the dismissal “of what is, on its face a serious cause of action”.

Mr Justice Mulcahy also had regard to inter alia the appellants’ refusal to engage in mediation at the invitation of the plaintiff, finding that the appellants simply ignored or failed to take any step in response to that request.

The High Court refused to dismiss the proceedings. The appellants appealed to the Court of Appeal.

The Court of Appeal

Ms Justice Hyland explained that the first period of delay was that between the date of the conveyance in 1999 and 1 March 2011, when the PRA contacted the plaintiffs. 

Noting that proceedings were not issued until 2013, the judge noted that “given the very long period between the date of the conveyance and 2011, it was necessary for them to move with expedition at that point. In my view, there is a 2 year delay at that point in time”.

Outlining that the statement of claim issued on 16 May 2014 and that the defence was delivered on 13 February 2015, Ms Justice Hyland was satisfied that matters then “ground to a halt”.

The court agreed with the trial judge that it was the plaintiffs’ obligation to move matters on and that the delay was inexcusable up until 2021.

Ms Justice Hyland observed that the High Court’s decision was delivered on 30 May 2024 and that exactly one year later, on 30 May 2025, the Supreme Court’s judgments in Kirwan v. Connors [2025] IESC 21 were delivered in respect of the correct test to be applied to striking out proceedings for delay.

Highlighting that this change in the legal approach to motions to strike out for delay had not been relied upon by the appellants, the Court of Appeal nonetheless considered the impact of Kirwan on the proceedings before it.

Ms Justice Hyland considered that there had been five years of cumulative and unexplained lack of activity, including blocks of complete procedural inactivity for over two years, and as such, the proceedings fell into the category of very serious delay warranting dismissal unless a pressing exigency of justice required the case to go to trial.

Querying whether the nature of the case could be taken into account when examining the exigencies of justice, the court confirmed that Kirwan did not provide “some kind of automatic test”.

The court explained that while the court is not usually concerned with the merits of the case, Mr Justice Brian Murray in Kirwan “does go on to say that if a case was so strong that it was unanswerable, those factors, i.e. the substance of the case, might exceptionally be taken into account in the exercise of the discretion”.

Ms Justice Hyland opined:

The judge firstly pointed to the allegation that the second appellant acted for both sides of the conveyancing transaction the subject of the proceedings, and had a commercial interest in the transaction.

The second factor was that there had never been any attempt by the appellants to wall off the property the subject of the conveyance and that no step was taken in relation to the lands since the communication from the PRA in 2011.

Finally, when a letter seeking discovery of the conveyancing file was sent in 2023 by the plaintiffs’ solicitor, the file was not produced and “given that the second appellant acted as their conveyancing solicitor, it is unsatisfactory he has not thought it appropriate to provide them with the file”.

Confirming that the plaintiffs must be taken to have a very strong claim against the second appellant, Ms Justice Hyland considered whether a fair trial was possible in the circumstances.

The court was not convinced that the absence of certain witnesses prejudiced the appellants and determined that the case was one in which documents would play a significant role. The court was also satisfied that the High Court did not go beyond his discretion in taking into account the appellants’ refusal to engage with mediation.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

McAteer as Personal Representative of the late Hugh McFadden Deceased & Anor v The Tanyard Development Company & Anor [2026] IECA 38