High Court: Debt recovery proceedings against surety struck out for delay

About this case:

• Citation:
  [2026] IEHC 198
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Barry O'Donnell

Delivering judgment for the High Court, Mr Justice Barry O’Donnell explained that “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”.

Background

On 11 December 2015, AIB plc issued summary debt recovery proceedings against the defendants.

The initial transactions giving rise to the loans, which were advanced to the deceased mother of the third defendant and to the second defendant in connection with property developments in Co Cork, occurred in 2006. Further advances had been made as the development progressed.

In June 2024, the plaintiff was substituted into the proceedings following an assignment of a loan portfolio including the defendants’ debts and associated security. In May 2017, judgment in default of appearance was obtained as against the second defendant.

The third defendant contested the proceedings and in particular, the entitlement to call in a personal guarantee in respect of the repayment of the loans given by him in 2010.

On 7 April 2021, the third defendant issued a motion seeking to dismiss the claim for want of prosecution.

The High Court

At the outset, Mr Justice O’Donnell considered the chronology of the proceedings as they concerned the third defendant.

The court was unconvinced by the third defendant’s assertion that in applications under Order 122, Rule 11 of the Rules of the Superior Courts following the judgment in Kirwan v Connors t/a MJ O’Connor Solicitors & Others [2025] IESC 21, the period of time between his motion issuing and the motion being heard should be taken into account, finding: “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.”

Mr Justice O’Donnell assessed the first significant period of delay as being that between the issuing of the summary summons in December 2015 and issuing its motion for liberty to enter final judgment in June 2017, identifying a period of apparent inactivity on part of AIB of 18 months.

The second period of apparent inactivity on part of AIB was identified by the court as being a three-year period occurring between November 2017 and November 2020.

Mr Justice O’Donnell noted that AIB had applied to adjourn the proceedings generally with liberty to re-enter in circumstances where the defendants’ solicitors indicated that the family of the deceased wished to take over the administration of the estate for the purposes of defending the proceedings, and where the plaintiff and third defendant were in discussions as to a private dwelling house account held by him which was the subject of a tracker mortgage review.

Notwithstanding, on 17 November 2017, the defendants’ solicitors, writing specifically on behalf of the third defendant, contacted AIB’s solicitors indicating that they were not objecting to this course of action but stating that their client reserved the right to object to any reinstatement of the proceedings on the basis of delay, prejudice or any other ground.

In this regard, the court highlighted that the plaintiff’s motion seeking to re-enter the proceedings was not served on the third defendant until 4 November 2020. An order was made re-entering the proceedings on 10 May 2021.

Mr Justice O’Donnell considered the applicable legal principles and stated that “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.”

The judge continued: “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.”

Noting that the third defendant was entitled to issue his motion to dismiss for delay in circumstances where there had been no proceeding for two years from the last proceeding had, the court was satisfied that the third defendant bore no responsibility for the cumulative four-and-a-half years of delay on part of AIB.

Mr Justice O’Donnell pointed out that this period fell within 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”.

Finding that this comment appeared to be mainly addressed to plenary cases rather than summary applications, the judge opined that there are two separate considerations at play – that the plaintiff made a choice to pursue a summary remedy and that the court cannot predict with any certainty on the papers that the matter would not proceed to a plenary hearing.

As to the first period of delay, Mr Justice O’Donnell did not accept that the reason given by the plaintiff for the delay in issuing its motion for summary judgment, relating to obtaining remittances from a receiver and dealing with the second defendant, justified the delay. 

In this regard, the court highlighted: “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.”

The court was equally unpersuaded by the reasons given for the second period of delay, noting inter alia that no reasonable explanation had been tendered as to how addressing a tracker mortgage issue had any bearing on the action before the court.

Mr Justice O’Donnell was prepared to accept that from the commencement of pandemic lockdowns in March 2020, the plaintiff’s ability to progress proceedings was constrained and led to a delay between the swearing of an affidavit grounding its motion to re-enter the proceedings and the actual service of the motion in November 2020.

The judge also accepted that an application for summary judgment is on affidavit and would not depend on locating or securing the attendance of witnesses or the current state of their memories.

However, Mr Justice O’Donnell was satisfied the summary procedure imports an obligation to proceed with particular expedition and that in light of the possibility of the proceedings being adjourned to plenary hearing and the resultant prejudice arising to the third defendant in respect of locating witnesses, and of “the separate prejudice of having to live with these proceedings hanging over him for over a decade”, a real issue of the fairness of any trial had been raised.

Conclusion

Accordingly, the High Court granted an order dismissing the proceedings against the third defendant for want of prosecution.

Everyday Finance DAC trading as Link Financial v David Scott, Paul Murray and William O’Brien [2026] IEHC 198