Kehoe & Anor v Promontoria (Aran) Ltd & Anor (Unapproved) [2023] IECA 72 (30 March 2023)

Kehoe & Anor v Promontoria (Aran) Ltd & Anor (Unapproved) [2023] IECA 72 (30 March 2023)

The delay of three years in serving the plenary summons was inordinate and inexcusable, no valid excuse was advanced, and the balance of justice favoured striking out the proceedings. The lis pendens was properly vacated under s.123 of the 2009 Act due to unreasonable delay. The trial judge did not err in applying the legal standards or in considering the evidence. The refusal to adjourn was within the proper discretion of the case management judge.

Citation
[2023] IECA 72
Parties
Plaintiff/appellant: Declan Kehoe; Plaintiff/appellant: Una Kehoe; Defendant/respondent: Promontoria (Aran) Limited; Defendant/respondent: Ken Fennell
Jurisdiction
Ireland
Judgment Date
30 March 2023
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Delay in Prosecution, Vacation of Lis Pendens, Renewal of Plenary Summons, Appointment of Receiver, Mortgage Enforcement
Civil Procedure Property Law Banking Law Delay in Prosecution Vacation of Lis Pendens Renewal of Plenary Summons Appointment of Receiver Mortgage Enforcement

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Parties

Declan Kehoe

Plaintiff/appellant

Una Kehoe

Plaintiff/appellant

Promontoria (Aran) Limited

Defendant/respondent

Ken Fennell

Defendant/respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the delay in prosecuting proceedings was inordinate and inexcusable
  2. 2 Whether the lis pendens should be vacated under s.123 of the Land and Conveyancing Law Reform Act 2009
  3. 3 Whether leave should be granted to renew the plenary summons

Ratio Decidendi

The delay of three years in serving the plenary summons was inordinate and inexcusable, no valid excuse was advanced, and the balance of justice favoured striking out the proceedings. The lis pendens was properly vacated under s.123 of the 2009 Act due to unreasonable delay. The trial judge did not err in applying the legal standards or in considering the evidence. The refusal to adjourn was within the proper discretion of the case management judge.

Court Disposition

appeal dismissed

Orders

  • Proceedings struck out for delay and want of prosecution
  • Lis pendens vacated under s.123 Land and Conveyancing Law Reform Act 2009