Summary of Judgment

Factual and Procedural Background

This opinion concerns plenary proceedings issued by the Plaintiffs on 29 September 2015 against the First Defendant (a bank in special liquidation) and the Second Defendant (a professional services firm). The proceedings related to two historical loans advanced to the Second Plaintiff by a predecessor lender in 1990 and 1994, secured on farmland and farm buildings in The Town. The plenary summons sought damages and constitutional relief, but no statement of claim was ever delivered.

Over the years the Plaintiffs pursued complaints with the Ombudsman and other regulatory bodies concerning alleged mismanagement and mis‑selling of endowment products and other issues. The First Defendant informed the Plaintiffs in various letters in 2012–2015 that a valid debt subsisted in relation to the first loan, and the loan was included in a 2014 sale of a loan portfolio to Company B. No procedural steps were taken in the High Court by the Plaintiffs between the issuance of the summons in 2015 and 2024.

In 2024, following a demand by Company C and steps to appoint a receiver, the Plaintiffs filed motions including (a) an application for declaratory reliefs; (b) an application for retrospective leave under section 6 of the Irish Bank Resolution Corporation Act 2013 ("section 6") to continue proceedings against the First Defendant and to join the proposed State defendants (the Minister for Finance, the Attorney General and the State); and (c) strike‑out applications by the First Defendant and the Second Defendant. The Court (Judge [Last Name]) heard the principal motions on 6–7 November 2025 and delivered judgment on 17 December 2025.

Legal Issues Presented

1. Whether the Plaintiffs required, and can be granted retrospectively, leave of the Court under section 6 of the 2013 Act to continue proceedings against the First Defendant.
2. Whether the proceedings against the First Defendant and/or the Second Defendant should be struck out for inordinate and inexcusable delay / want of prosecution.
3. Whether it would be futile to grant retrospective leave because dismissal for delay would inevitably succeed.
4. Whether the Plaintiffs' application to join the proposed State defendants should be permitted.

Arguments of the Parties

First Defendant's Arguments

• The Plaintiffs required leave under section 6 of the 2013 Act before issuing proceedings against the First Defendant and they did not obtain such leave.
• The Court should refuse retrospective leave because the Plaintiffs' conduct and the prejudice to the First Defendant disentitle the Plaintiffs from relief.
• The grant of leave would be futile because inordinate and inexcusable delay means a subsequent application to dismiss for want of prosecution would inevitably succeed.

Second Defendant's Arguments

• The proceedings against the Second Defendant should be struck out for inordinate and inexcusable delay.
• The Plaintiffs failed to validly serve the proceedings on the Second Defendant.
• The requirement for section 6 leave should apply to the Second Defendant where it is sued as an agent of the First Defendant (an argument the Court did not need to decide given the finding on delay).

Plaintiffs' Arguments

• The Plaintiffs said they lacked legal representation when the proceedings issued and urged a low threshold for establishing a stateable claim.
• They argued that section 6 cases in prior authorities did not involve building society members and that the Court should recognise a distinction between such borrowers and large commercial borrowers.
• The Plaintiffs broadly asserted that serious issues were raised and rejected any claim that there was unjustified delay.
• The Plaintiffs sought retrospective leave under section 6 and also sought to join the proposed State defendants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A v. First Defendant [2014] 3 I.R. 468 (anonymised reference)	Courts exercise the discretion under the equivalent statutory provision by asking whether it is "right and fair in the circumstances" to give consent to proposed proceedings (the section 6 test adopts the approach of the Companies Acts authorities).	The Court applied this as the starting point for assessing whether retrospective leave under section 6 should be granted, treating the test as whether it is right and fair to allow the claim to proceed.
Re Company C Ltd (In Liquidation) [2013] 1 I.R. 407 (anonymised reference)	Where a statutory restriction limits access to the courts, the provision should be strictly construed but the court may nevertheless grant retrospective leave validating proceedings commenced without prior leave.	The Court accepted that jurisdiction exists to grant retrospective leave under section 6 and that the court should assess the application as if it had been made at the outset.
Case D v. Company E [1963] N.I. 49 (anonymised reference)	Explains the broader purpose of provisions like s.222: to place proceedings relating to a company under the supervision of the court.	The Court had regard to the supervisory purpose of section 6 when considering the grant of leave.
Case B v. First Defendant [2016] IEHC 661 (anonymised reference)	Confirms the low threshold for a stateable claim and that the court may, in its inherent jurisdiction, examine affidavit evidence and decide a claimed stateable case is not made out.	The Court applied the principle that the threshold for a stateable claim is low but noted the court may reject a purported claim if affidavit evidence demonstrates no stateable case; this supported refusal of leave where no stateable case was identified.
Case F v. First Defendant (2020/310 COS) (anonymised reference)	An example where retrospective leave was refused because of unexplained delay even though some particulars of the claim were provided.	The Court relied on this as persuasive authority that delay can justify refusal of leave, even where some merits are arguable.
Case G v. Company H [2021] IEHC 605 (anonymised reference)	Generally, leave will be granted unless the claim could be more conveniently pursued in winding up, or is frivolous/vexatious or clearly bound to fail (e.g., clearly statute‑barred).	The Court considered these propositions as part of the comparative authorities and treated them as factors in the "right and fair" assessment, while noting the role of futility and statute‑bar issues.
Case I v. Company J [2016] IEHC 327 (anonymised reference)	The court must have regard to the nature of the claim beyond mere assertion when determining what is "right and fair".	The Court applied this approach by requiring clarity as to the nature of the Plaintiffs' case and finding the plenary summons and affidavits did not meet this standard.
Primor v. [Named Party] [1996] 2 IR 459 (anonymised reference)	Historic test for dismissal for want of prosecution; critiqued and refined by later authority.	The Court noted that Primor has been reformulated by the Supreme Court and applied the new test from the later authority rather than Primor itself.
Case X v. Case Y [2025] IESC 21 (anonymised reference)	Supreme Court refinement of the test for dismissal for want of prosecution: gives weight to passage of time and sets out guidance (two‑year, four‑year and five‑year milestones, and the burden on plaintiff after lengthy inactivity).	The Court treated this authority as binding and applied its milestones and principles (two years, four years, five years; emphasis on lapse of time and plaintiff responsibility) to conclude that the Plaintiffs' long inactivity justified dismissal and made grant of section 6 leave futile.

Court's Reasoning and Analysis

The Court's analysis proceeded in a sequence:

1. Statutory framework and discretion: The Court began from the wording of section 6(2)(b) of the 2013 Act, which prohibits further proceedings against the First Defendant without the consent of the Court, and treated the Court's discretion as to granting leave in the same way as analogous Companies Act authorities. The governing inquiry is whether it is "right and fair" in the circumstances to grant consent.
2. Retrospective leave and stateable claim threshold: The Court recognised that, under precedents concerning winding up provisions, the Court has jurisdiction to grant retrospective leave validating proceedings started without prior leave. However, the Court must assess whether a stateable claim exists: the threshold is low but the Court may examine affidavit material and reject a purported claim where no stateable case is shown.
3. Application of the refined delay test: The Court applied the Supreme Court's reformulation of the test for dismissal for want of prosecution (the two‑year/four‑year/five‑year guidance and emphasis on the passage of time and plaintiff responsibility). The Court treated lapse of time as an important independent factor and considered the extent to which plaintiff inactivity was culpable or explained.
4. Evaluation of facts against legal tests: The Court identified salient factual matters relevant to the section 6 and delay analyses:
   • Almost nine years elapsed between issuance of the plenary summons (2015) and the Plaintiffs' renewal of proceedings (2024).
   • No statement of claim was ever delivered and no procedural steps were taken by the Plaintiffs during the multi‑year inactivity.
   • The loan had been advanced decades earlier and sold by the First Defendant around 2014; the First Defendant has been in liquidation for many years and liquidation was close to completion.
   • The Plaintiffs' affidavits and submissions failed to explain the extended inactivity or to identify a clear, concise pleaded cause of action against the First Defendant; many allegations remained unpleaded assertions and the plenary summons did not clarify the precise causes of action.
   • The Plaintiffs' later activity appeared to have been "triggered" by third‑party enforcement steps by Company C, suggesting the revival was reactive and long delayed.
5. Assessment of prejudice and futility: The Court concluded that the Plaintiffs' inaction was inordinate, unexplained and deliberate. Applying the Supreme Court guidance, the Court found that the lapse of time and attendant difficulties (loss of witness availability, personnel changes, near completion of the liquidation) meant that an application to dismiss for want of prosecution would inevitably succeed and that it would therefore be futile to grant retrospective leave under section 6.
6. Application to the Second Defendant and joinder of State defendants: The Court applied the same delay analysis to the Second Defendant and found the case against it should be struck out for inordinate and inexcusable delay. Because the Court refused leave and struck out the existing claims, the Court declined to allow joinder of the proposed State defendants; it noted the late timing of the joinder application and the absence of any identified accrued cause of action or draft pleading properly exhibited in support.

Holding and Implications

Holding:

• The Court refused to grant retrospective leave to the Plaintiffs to continue proceedings against the First Defendant under section 6 of the 2013 Act.
• The Court struck out the proceedings against the Second Defendant for inordinate and inexcusable delay.
• The Court refused the Plaintiffs' application to join the proposed State defendants.
• The Court struck out the Plaintiffs' remaining motion dated 16 August 2024 (the declaratory motion).

Implications:

• As a direct effect, the Plaintiffs' proceedings against the First Defendant and the Second Defendant are not permitted to proceed in the High Court: leave was refused for the First Defendant and the claim against the Second Defendant was struck out. The Plaintiffs' application to add the proposed State defendants was also refused, and the declaratory motion struck out.
• The Court emphasised that the Supreme Court's reformulated test for dismissal for want of prosecution (weight to passage of time; two/four/five year guidance; plaintiff responsibility) is binding and was determinative on the facts. The Court applied existing authorities rather than creating a new principle; the decision is fact‑specific and does not purport to establish a new general precedent beyond the application of those existing tests.

Note: This summary has been prepared solely from the content of the provided opinion and strictly anonymises parties and other identifying details in accordance with the instruction given for the preparation of this summary.