Dooley v Florentine Properties Ltd - Striking Out Proceedings

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  Dooley v Florentine Properties Ltd and Anor (Approved) [2026] IEHC 170 (19 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC170.html
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THE HIGH COURT

Record No. 2013/2559P

[2026] IEHC 170

Between:

GABRIEL DOOLEY

Plaintiff

-AND-

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FLORENTINE PROPERTIES LIMITED

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-AND-

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BALLYMORE IRELAND GROUP LIMITED

Defendants

JUDGEMENT OF Mr. Justice Jordan delivered on the 19 th day of March 2026.

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1. This is an application by the defendants to strike out these plenary proceedings for want of prosecution under O.122 r.11 of the Rules of the Superior Courts and pursuant to the inherent jurisdiction of the court to dismiss the proceedings on the grounds of inordinate and inexcusable delay.

2. It is apparent from the affidavits of the plaintiff and that of his wife that they have had a difficult time as a family since the financial crash in 2008. Unfortunately, their financial position deteriorated greatly with knock on effects on the plaintiff's health and the family's quality of life. They were not alone in their predicament.

3. The proceedings relate to contracts dated as far back as 2005 - some 20 years ago. The breach of contract is alleged to have occurred in November 2010 but these plenary proceedings did not issue until March 2013. There was therefore pre-commencement delay. This late start did make it more important that the Plaintiff proceed thereafter with some expedition.

4. The defendants entered appearances soon after being served - on 22 March 2013 and 25 March 2013 respectively. No statement of claim was delivered until 19 June 2016 - and a copy of that statement of claim was not served on the defendant's solicitors Arthur Cox until 17 August 2016. By this time the Plaintiff was a lay litigant in the proceedings as his Solicitors Lavelle Coleman had disbanded and he had no Solicitors on record for him. It appears that the Plaintiff discharged his Solicitors in March 2015 as the firm "had dissolved ". He says that he was unable to instruct a new legal team due to substantial financial difficulties and he recommenced the legal proceedings as a lay litigant and was he says " fundamentally ignorant " of what he needed to do to advance his claim.

5. It did recently come to light through a recently sworn supplemental affidavit of the Plaintiff that he had consulted other Solicitors as an Opinion of Senior Counsel was obtained in August 2015 through the Solicitors now on record for him.

6.?The statement of claim arrived over three years after the proceedings issued. No notice to proceed was filed in the intervening three year plus period - even though more than two years had elapsed since the proceedings had issued.

7. A notice for particulars issued on behalf of the defendants - during the long vacation on 19 August 2016. This notice for particulars was acknowledged but not actually replied to by the plaintiff - even though a reminder was sent by the defendant's solicitors on 21 October 2016.

8. The plaintiff took no steps after the delivery of the statement of claim [on 19 June of 2016 or 17 August 2016] until a notice of intention to proceed issued on 16 May 2022. At that time, there had been a further period of inactivity of nearly six years.

9. No further step was taken by the plaintiff until a second notice of intention to proceed was issued by him on 8 August 2023. At this stage, there had been a period of inactivity of some seven years since the statement of claim was delivered. On the following day - 9 August 2023 - a different statement of claim was delivered even though no application to amend the original statement of claim had been made. Then a further year elapsed and on 27 August 2024 another [third] statement of claim was delivered - again without any application to amend the original statement of claim having been made.

10. Thus, there are aggregate periods of inactivity of well in excess of 10 years since the proceedings issued. It is over fifteen years since the alleged breach of contract and over twelve and a half years since the proceedings issued. The only meaningful step which the plaintiff has taken since the proceedings were issued has been the delivery of a statement of claim which he did in the Summer of 2016 - over nine years ago.

11. The Supreme Court recently clarified the law in relation to the jurisdiction of the court to strike out proceedings on the grounds of delay and clarified the principles which should be applied when dealing with such applications - in Kirwan v Connors & Ors. [2025] IESC 21 (' Kirwan').

12. The court has the benefit of legal submissions of the defendants filed on 14 November 2025 and legal submissions of the plaintiff filed on 18 December 2025. In addition, the court has had the benefit of oral submissions by both sides at the hearing of the motion on 23 January 2026.

13. The plaintiff has sensibly conceded a number of issues. In the written submissions the plaintiff accepts that the procedural history of the proceedings leaves much to be desired from the perspective of the plaintiff - i.e.;

(a) the proceedings were issued on 12 March 2013;

(b) appearances were entered later in the same month;

(c) a statement of claim was delivered on 19 June 2016;

(d) while it is stated that "a further statement of claim was delivered without leave having been sought on 17 August 2016" this is a reference to the copy statement of claim being served on Arthur Cox.

(e) further statements of claim were delivered in August 2023 and August 2024, without leave of the court having been sought;

(f) a Notice for Particulars was issued on foot of the original [June 2016] Statement of Claim on 19 August 2016 and no replies to particulars ever issued;

(g) the plaintiff issued notices of intention to proceed on 16 May 2022 and 9 August 2023;

(h) no activity other than that set out above emanated from the plaintiff from 19 June 2016 onwards; and

(i) this fact pattern prompted the defendant's motion to strike out.

14. The plaintiff also acknowledges that the defendants in their written submissions dated 14 November 2025; ?

(a) correctly summarise the basis of the court's jurisdiction to strike out cases;

(b) correctly identify the Supreme Court judgment in Kirwan as representing the most up-to-date understanding of the court's practices with respect to striking out claims that have been prosecuted in a dilatory manner;

(c) correctly state that the Kirwan judgment dispenses with prejudice as a cardinal requirement for the striking out of an egregiously delayed claim; and

(d) correctly summarises the Supreme Court's views in relation to the level of scrutiny to be applied to inactivity levels of two, four and five years or more.

15. The plaintiff in his written submissions also accepts that the following points must be conceded; ?

(a) his inactivity in the proceedings since the Summer of 2016 is of a variety which would, in the ordinary course of events, be regarded as egregious and unacceptable;

(b) whereas prior to Kirwan, the defendants would have had to point to specific prejudice in order to successfully strike out the plaintiff's claim, they no longer need to do so unless the plaintiff can point to exceptional factors in his own favour.

(c) the plaintiff should have sought the leave of the court before issuing new statements of claim in [2016] 2023 and 2024 and thus none of them can be regarded as validly delivered pleadings for the purposes of O.122, r.11.

(d) it is trite law that documents such as notices of intention to proceed and notices of change of solicitor do not qualify as 'proceedings' for the purposes of O.122, r.11, meaning that the plaintiff has not delivered a 'proceeding' since June 2016 (or nine years prior to the issuing of the defendant's motion).

(e) unless exceptional circumstances can be adduced by the plaintiff, the threshold for striking out his claim has been met and the onus is therefore on him to establish such exceptional circumstances.

16. The plaintiff disagrees with the defendant's submissions in the following respects; ?

(a)?the defendants argue that none of the plaintiff's circumstances fall within the exceptions established in Kirwan, which might justify the court in exercising its discretion not to strike out the plaintiff's case. The plaintiff respectfully submits that this is a superficial analysis of Kirwan, which seeks to ignore all pre- Kirwan case law, despite the fact that Kirwan specifically cites several cases as still representing a correct approach to assessing exceptional circumstances.

(b) the defendants insist that prejudice is irrelevant to these proceedings due to the more expansive nature of Kirwan relative to previous lines of case law. The plaintiff submits that this is incorrect and says that in circumstances in which exceptional circumstances exist (as he says they do with this case), the issue of prejudice once again becomes relevant to the court's balancing exercise.

(c) the defendants contend that, even if prejudice is relevant, the defendants have clearly been prejudiced by the efflux of time. The plaintiff does not accept this and contends that these proceedings are of a variety which entails less temporal prejudice than a typical plenary case would present.

17. The plaintiff argues that the proceedings should not be struck out notwithstanding the fact that, as he concedes, the basic threshold for triggering the court's discretionary powers has been met.

18. The plaintiff takes issue with the defendant's analysis of the post Kirwan legal position insofar as it gives or may give the impression that the new rule (namely that delays in excess of five years in prosecuting a claim will result in a strikeout, with or without defendant prejudice) is an absolute rule which permits almost nothing by way of exception.

19. The plaintiff says that any such argument is erroneous. The plaintiff submits that prior to Kirwan, a plaintiff whose dilatory conduct was an issue had in effect two bites of the cherry. In the first instance, he could argue that his delay was excusable by virtue of the special circumstances pertaining to him. The second was to argue that the defendant was not prejudiced. The plaintiff says that in a post Kirwan operating environment, a plaintiff who cannot demonstrate a valid excuse cannot save his claim by citing the lack of prejudice. However, the plaintiff says that the ability to cite extenuating circumstances is substantially unaffected by Kirwan. The plaintiff relies on the following extract from the Kirwan judgment where Murray J states; -

"I'm inclined to the view that if the period of total unexplained delay is greater than five years, the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational, social or economic disadvantage, or otherwise in progressing their action (Guerin v Guerin [1992] 2 IR 287), in very unusual cases in the realm of public law where the proceedings disclose an issue which the public interest demands should be litigated to conclusion (as in Concast or McKenna v Farrell [2007] IEHC 343), or where there has been serious misconduct by the defendant in the course of the proceedings. The cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff's delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale."

20. As the plaintiff puts it - "in other words, if the plaintiff can demonstrate extenuating circumstances (on his part) and only modest or no prejudice (on the defendant's) he can still prevent his case from being struck out".

21. The plaintiff points to the particular circumstances appearing in the case of Guerin v Guerin [1992] 2 IR 287 - and in Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510 and in McLoughlin v Garvey [2015] IECA 80.

22. The plaintiff also points to a later Court of Appeal decision in Gaffney v Commissioner of an Garda S?och?na [2017] IECA 52 and to the fact that McLoughlin was cited by Hogan J in that case where he emphasised that the cumulative nature of different extenuating factors which, on their own, could not furnish a plaintiff with an excuse for delay but which, taken together, would constitute just such an excuse [at para. 13].

23. The plaintiff also points to the case of Johnson v Calor Teoranta [2018] IEHC ?409 where Binchy J held that the plaintiff's bereavement (the death of his daughter) was a factor capable of excusing an otherwise culpable delay in the advancement of his proceedings. The plaintiff relies on the fact that in Binchy J cited the following passage from the judgment of Geoghegan J in Drug & Machinery Sales Ltd v General Accident & Anor. [1999] IEHC 201; -

"Strictly speaking it would seem to me that the excuses relied on should relate in some way to the actual proceedings in hand because an opposing party can hardly be expected to stand aside and wait while the other party resolves its problems which have nothing to do with litigation. Nevertheless I'm satisfied that all the surrounding circumstances including so-called excuses based on extraneous activities must to some extent be taken into account and weighed in the balance in finally considering whether justice requires that the action be struck out or allowed to proceed."

24. The plaintiff submits, on the basis of the authorities cited, that they are clear on the following points; -

(a) factors outside the four walls of the litigation itself are relevant to an assessment of whether or not an inordinate delay is excusable.

(b) the plaintiff's finances and socio-economic status are relevant factors in determining whether a delay is excusable.

(c) the plaintiff's health is a relevant factor, as is the health of a loved one or a bereavement.

(d) the overall assessment of whether extraneous factors are exculpatory is conducted on a case-by-case basis and prior case law is of limited utility in determining the balance of justice in any given case.

(e) notwithstanding Kirwan, once the appropriate extenuating circumstances are established, the absence of significant prejudice to the defendant becomes a highly relevant factor in determining how the court should exercise its discretion.

25. The court agrees that it is necessary to consider the plaintiff's circumstances as urged upon the court with a view to deciding whether or not those personal circumstances are sufficient to give the plaintiff a valid excuse for his dilatory conduct.

26. The plaintiff's personal circumstances are summarised as follows in the plaintiff's written submissions ; -

(1) In the first instance, the plaintiff has suffered from severe mental health issues - and he details a time when he was at a very low point in ?2015. The plaintiff concedes that this event occurred prior to his last official engagement with the proceedings but is nonetheless contextually relevant to what is referred to as the broader matrix of facts surrounding his rapidly deteriorating mental state leading into 2016.

(2) The plaintiff commenced psychiatric treatment in 2019 after years of deteriorating mental health and this psychiatric treatment continued into 2021.

(3) The plaintiff's mental health issues were compounded by severe physical health issues such as arthritis and haemochromatosis. It is conceded that these conditions probably would not have constituted valid excuses in and of themselves but it is submitted that they helped to form part of a matrix of collapsing physical and mental health which had a massive cumulative impact.

(4) The debt litigation commenced against the plaintiff is relied on but it is conceded that it probably would not have offered any kind of valid excuse when taken in isolation but, when combined with (and, in all probability, caused) a collapse in his mental health (as well as physical) health, it added to a perfect storm of factors which compromised his mental and psychological ability to prosecute the proceedings more efficiently.

(5) It is submitted that all of the above sets a context for the plaintiff's struggles as a litigant after the dissolution of Lavelle Coleman and his consequent loss of legal representation in these proceedings. It is conceded that his status as a lay litigant would manifestly be insufficient if taken in isolation but such isolation would remove it from its proper context - and that context is one characterised by extreme financial distress and collapsing physical and mental health. The plaintiff submits that, while the accommodation which he now seeks from the court is quite unusual and even exceptional, so too are the circumstances that have befallen him.

(6) It is submitted that another feature of the case is that while the plaintiff was objectively inactive when looked at in the context of the established law, his own conduct (while highly irregular) demonstrated repeated attempts to engage energetically with the proceedings - albeit attempts which were horrendously misguided and clearly reflected the lack of proper (or indeed any) legal advice or representation. In this regard it is submitted that, in the first instance, the plaintiff delivered a statement of claim in 2016 without the assistance of solicitors or counsel. The further statements of claim were then delivered by the plaintiff as detailed above ?? which the plaintiff concedes were improperly delivered. Notices of intention to proceed were delivered in 2022 and 2023. It is submitted that in circumstances in which the plaintiff's mental health was as bad as it was, that his misguided and imperfect attempts to engage in the process must be looked at as extenuating factors which lessen his culpability. It is submitted that those who point out that such attempts mean nothing in isolation are missing the point which is that the plaintiff's overall situation was determined by a multiplicity of factors the cumulative combination of which add up to a highly unusual and bizarre situation giving rise to an excuse for his delays.

27. For the above reasons it is submitted that the plaintiff has established that while his delay in prosecuting the proceedings was inordinate, it was not inexcusable and should not trigger the exercise of the courts discretion to strike out his claim.

28. The defendant's solicitors prepared and submitted to the court a table in relation to the plaintiff's exhibits which he relied on concerning his "exceptional circumstances" - and included details concerning the exhibits to the affidavits of Keith Smith (solicitor for the defendants). This table is comprehensive and very helpful. It ?is an accurate summary of what is referred to in the affidavits and contained in the exhibits.

29. The court has prepared a summary of the information concerning the physical and mental health of the plaintiff as taken from his private medical records and it is provided to the parties separate from, but contemporaneously with, this judgment. This is for ease of reference and in circumstances where it is not appropriate or necessary to include this level of detail taken from private medical records in this judgment.

30. More recently On 28 January 2025 the plaintiff's GP wrote a to whom it may concern letter which referred to ; - "Significant, and, at times overwhelming stress regarding outstanding financial matters. He has been prescribed antidepressant medications. He was assessed by a consultant psychiatrist in 2019, and again in 2021, in relation to a diagnosis of adjustment reaction, depressive type. Treatment was advised with both medication and cognitive behavioural therapy recommended. He continues to experience high levels of stress which negatively impacts on his mental health".

This letter does record what is described as at times overwhelming stress by reason of outstanding financial matters and does appear to confirm the plaintiff's first attendance at a psychiatrist as being in 2019. The letter does not go as far as to say that the plaintiff was so unwell that he was incapacitated or unable to prosecute the proceedings. It should also be noted that the defendant's solicitors wrote to the plaintiff's solicitors on 9 December 2024 advising of the defendant's intention to apply to the court to have the proceedings struck out for want of prosecution and/or inordinate and inexcusable delay. That letter indicated that the papers had been finalised but that when the defendant's solicitors attempted to file these papers the Central Office of the High Court confirmed that Ferrys Solicitors LLP was not in fact on record for the plaintiff and that the plaintiff remained a litigant in person. The defendant's solicitors requested that Ferrys Solicitors LLP arrange to file a notice of change of solicitor by Friday 13 December 2024 failing which they would arrange to serve the papers on the plaintiff directly. On 9 January 2025 the motion to dismiss the proceedings dated 9 December 2024 and the grounding affidavit and exhibits were served by registered post and email on Ferrys solicitors LLP. The to whom it may concern letter of 28 January 2025 was written in circumstances where the motion to strike out was pending.

31. It is quite apparent that the plaintiff unfortunately has had a number of medical problems and health concerns over the years. It is also apparent that the physical health conditions have been managed and monitored during this time. The mental health difficulties which the plaintiff has suffered from during this period resulted in a diagnosis of adjustment reaction, depressive type and it has required treatment and medication. However, there is nothing in the medical records which states that the plaintiff's physical ill-health or mental health condition since 2010 has impacted upon his inability to progress this litigation.

32. Notwithstanding the absence of a medical opinion of? " incapacity " or an opinion stating that the plaintiff was not fit or able to pursue or prosecute this case due to mental and/or physical illness , or a similar opinion , the court must still consider the evidence of the plaintiff's physical and mental ill-health in circumstances where the plaintiff submits to the court that these personal circumstances - when taken with the other circumstances - are such as to provide him with a valid excuse for his delay in prosecuting this action.

33. The plaintiff had significant property interests at the time of the financial crash. In an updated report to the Anglo Irish bank in November 2010 there is reference to a number of properties owned by the plaintiff (and his wife or by a company controlled by them, International Inns Ltd) in his "portfolio". It seems clear that the plaintiff and his wife encountered significant financial difficulties as a result of the crash. The financial difficulties led to a significant dispute between the plaintiff and the lenders. In October 2011 Anglo Irish Bank appointed a receiver to a company owned by the plaintiff. It does appear however that the plaintiff resolved his issues with Anglo Irish Bank.

34. In September 2017 Promontoria (Aran) Ltd (which took over from Ulster Bank) corresponded with the plaintiff in relation to outstanding debt - with formal demand for payment. On 6 March 2018 and on 15 March 2018 Promontoria appointed receivers.

35. On 27 March 2018 Ulster Bank corresponded with the plaintiff confirming the application of sale proceeds to loans.

36. On 13 July 2018 Promontoria issued a Summary Summons against the plaintiff. It appears that these proceedings have not advanced at all since they issued.

37. In July 2018 proceedings entitled Ulster Bank & Ors. v McDonagh & Ors. [2020] IEHC 185 were commenced by Ulster Bank. The plaintiff gave evidence and was cross-examined in the case.  He had had an involvement as an Auctioneer. The judgment of Twomey J refers specifically to his participation as a witness and to the fact that? " ... He has a direct financial interest in? the Heads of Agreement being held to be a binding contract for sale. This is because he spent seven years heavily involved in this case and, as he pointed out in evidence, he was the only one in court 'not on the payroll'. He was clearly resentful of the considerable amount of time during that seven year period that he had spent on the 'sale' of the site, and the subsequent litigation, without any financial reward ".

38. The hearing in the case of Ulster Bank & Ors. v McDonagh & Ors. commenced on 3 December 2019.  The hearing concluded on 24 January 2020.

39. In 2014 the Plaintiff did an interview with the Village Magazine - which is fairly described by the defendant's side as "a very lengthy expose of Mr. Dooley's perspective of matters".

40. The Plaintiff was also involved as a defendant in Defamation proceedings which started in April 2015 [ proceedings by a Mr. Vance and other proceedings by a Mr. Sheehy]. The position in relation to the Sheehy proceedings is not clear but it seems both sets of proceedings were inactive - and the Vance proceedings were struck out quite recently. ****

41. The plaintiff had a separate legal dispute with the PSRA leading to the reported decision in PSRA v Dooley [2023] IEHC 419.

42. By letter dated 22 April 2022 the plaintiff was informed that the PSRA had made a finding of improper conduct against him. Mr Dooley made a number of written submissions to the authority setting out matters which he wished the authority to take into account at a meeting on 3 October 2022. He attended the meeting on that date and he made submissions on his own behalf. It appears that the meeting which the plaintiff attended with the authority involved consideration of the sanction to be imposed on him in respect of the finding of improper conduct.

43. The authority issued an originating notice of motion on 28 March 2023, returnable to the High Court on 24 April 2023, seeking an order under s.71(2) of the 2011 Act confirming the authority's sanction decision made on 28 October 2022. On the return date of that motion on 24 April 2023 Mr Dooley sought and obtained an adjournment to 15 May 2023 to file a replying affidavit in response to the authority's confirmation application. He filed his replying affidavit on 10 May 2023. In that affidavit, Mr Dooley sought to appeal to the High Court from the sanction decision of the authority.

44. On 10 July 2023 the plaintiff brought a motion seeking an extension of time to appeal the decision of the PSRA. He was represented by solicitors and counsel.

45. On 10 October 2023 the plaintiff issued an appeal to the Court of Appeal - PSRA v Dooley [2023] IECA 251.

46. This was an appeal in respect of the High Court decision - PSRA v Dooley [2023] IEHC 419. The Court of Appeal hearing was on 12 February 2024 and the Plaintiff was unsuccessful there as well.

47. Subsequently on 20 December 2024 the plaintiff sought leave to appeal to the Supreme Court - PSRA v Dooley [2025] IESC DEG 53. The plaintiff's application for leave was determined on 28 March 2025 and leave was refused.

48. It is readily apparent from the plaintiff's involvement as a witness in the Ulster Bank & Ors v McDonagh & Ors. that he was well able to participate in legal proceedings at the time of those proceedings. Equally, it is readily apparent from the PSRA v Dooley proceedings that the plaintiff was well able to participate in legal proceedings at the times referenced. This is so even though the nature of those proceedings and his involvement in them was different to these proceedings where he is the plaintiff.

49. For the plaintiff to submit and to assert that his physical health, his mental health, his financial situation or indeed anything else fettered his ability to progress this litigation is at odds with what actually happened in the Ulster Bank v McDonagh & Ors.? and the PSRA v Dooley litigation in which he was involved.

50. Furthermore, to the extent that the Plaintiff seeks to use the other litigation as part of an explanation or an excuse for not advancing this litigation the Court considers that to be a baseless argument.

51. Mr. Keith Smith of Arthur Cox [ Solicitors for the defendants ] swore a short affidavit on 9 January 2026? referring to the Ulster Bank v McDonagh and PSRA v Dooley & Ors. litigation. It appears that the Plaintiff sought unsuccessfully to oppose the defendant's application for leave to rely on this first affidavit of Mr. Smith at the call-over on 15 January 2026 before Mr. Justice Cregan. Having permitted it to be relied on Mr. Justice Cregan permitted the plaintiff to reply to it up to close of business on 21 January 2026 - with the defendants having liberty to further respond by close of business on 22 January 2026. The Plaintiff delivered a long replying affidavit with a long exhibit. In replying to that affidavit the defendants say it is not in keeping with the direction given and they object to it - particularly to the plaintiffs efforts to litigate the claims of his substantive action.

52. In so far as the recent affidavits are concerned the court is not dealing with the merits (if any) of the substantive action. The court is dealing with an application to dismiss by reason of gross delay. That said, for the Plaintiff to outline his view of the substantive matter as he has in his affidavit of 21 January 2026 and to seek to argue simultaneously that the case will not require much in the way of oral evidence is a notable contradiction.

53. The arguments of the Plaintiff in his recent affidavit do not add anything to the weak arguments already put forward by him in opposition to the defendants application.

54. The plaintiff has also been quite active with correspondence over the years. Much detail of his activity on this front is contained in the voluminous papers before the court.? To touch on some examples ; -

? He was in correspondence with Mr Keith Smith of Arthur Cox in May 2014 and was then raising an issue concerning an alleged conflict of interest in circumstances where the plaintiff had at that time issues with NAMA and the plaintiff said he had been informed that Mr Smith acted for NAMA also, as a solicitor.

? The plaintiff continued correspondence with Mr Keith Smith of Arthur Cox in July 2015, August 2015 and September 2015.

? The plaintiff corresponded with the committee of enquiry into the banking crisis in July 2015 in relation to evidence given by Mr Se?n Mulryan, a witness to the committee of enquiry into the banking crisis, on 22 July 2015. In correspondence the plaintiff asserted that answers given by Mr Ryan to Deputy Joe Higgins TD were inaccurate and misleading. In the correspondence the plaintiff made a submission to the office of the committee, to the enquiry chairman and to the enquiry committee itself.

? On the 21st August 2015 the plaintiff made a formal complaint against Arthur Cox (and a solicitor in that firm) to the Solicitor's Disciplinary Board in relation to an asserted conflict of interest. In that complaint, and in a reference which apparently touches upon the matters in this litigation, Mr Dooley said that "this case is presently under investigation with the Garda Bureau Fraud Squad".

? In his letter dated 2 nd September 2015 to Mr Keith Smith of Arthur Cox the plaintiff stated "We have stated several times to you that there is a serious conflict of interest being carried out by your firm while acting for Mr Se?n Mulryan of the Ballymore Group and NAMA simultaneously. We have lodged our complaint with the Solicitor's Disciplinary Tribunal on 21 August 2015. Today we are making a formal complaint to the Law Society. We are requesting a full investigation into this matter."

55. The plaintiff wrote to Mr Se?n Mulryan as the chairman of Ballymore Ireland Ltd on 19 January 2016 as follows;

"Re-: Appointment of Receiver.

Dear Sean,

I hope this correspondence finds you in good health.

I am formally calling upon you to make good your contractual undertakings to my company to pay us for ?4.92 million plus interest accrued at 2% owed under our two legal agreements dated 20 August 2005. These two legal agreements were signed with your Ballymore Ireland Ltd under seal.

After extensive research it has now become apparent that the appointment of the receiver upon which you rely on not paying our ?4.92m, is void, invalid and of no legal effect.

It is not my wish to cause more financial loss for either party so I would be grateful if by return post you will confirm that the monies are due and owing to us and hopefully we can come to some amicable agreement or settlement as to how the monies owed are to be paid to us.

In the alternative I will have no option but to continue on with the court case that has commenced under record number 2013 2559P and this will be of considerable cost to your company.

I further intend to bring a Mareva injunction freezing all your Company Assets until the determination of the trial.

The only reason for my delay in progressing court proceedings is because of my in depth research into the appointment of Stephen Tennant as receiver.

I look forward to your response and as you are aware I am always open towards an amicable settlement.

If I do not hear back from you by 5pm this Friday 22 January 2016 I assume the matter will be dealt with by the High Court.

Kind regards,

Gabriel Dooley, Managing Director

P.S. ?I must warn you that I have done extensive research and that there is no doubt that the appointment of Stephen Tennant is totally invalid."

56. Having received a reply from Arthur Cox & Company on behalf of Mr Se?n Mulryan the plaintiff wrote directly to Mr Se?n Mulryan on 1 February 2016 as follows;

"Dear Se?n,

Thank you for your reply via your solicitors, Arthur Cox & Co, received by our office on 20 January 2016.

So for the avoidance of doubt and to negate further costs and litigation I am calling upon you to make the original deed of appointment of receiver Stephen Tennant to the above companies available for inspection.

On failure to do so will be deemed your admission that such a valid deed is not in existence.

In failure of you to provide such proof of a valid deed of appointment I will be left with no option but to proceed with our High Court case for judgment against you for monies of ?4.92m owed to our company.

Please treat this matter as urgent.

Regards,

Gabriel Dooley, Managing Director Dooley Auctioneers."

57. On 17 February 2016 the plaintiff was writing directly to Mr Se?n Mulryan concerning a request for all data held by his group of companies for Mr Gabriel Dooley and threatening to bring his case to the Data Commissioner if he did not receive same within the next seven working days.

58. Arthur Cox & Company responded to the plaintiff in relation to the data access request by letter dated 29 February 2016.

59. The plaintiff again wrote directly to Mr Se?n Mulryan on 27 April 2016 as follows; -

"Dear Se?n,

I would be grateful if you would instruct the alleged receiver, Mr Stephen Tennant, to arrange a suitable time and place for our advisers and ourselves to inspect the original deed of appointment that you are relying upon for not fulfilling your commitment of ?4.92m to us. I have advised Stephen Tennant of same. See attached copy letter.

We are advising you that your failure to produce the said documents by 5pm on Tuesday, 10 May 2016 will leave us with no option but to bring a motion before the High Court compelling you and Mr Tennant to produce the said documents.

In that event, this letter and previous letters will be produced to affix you with costs of such a motion.

Yours sincerely,

Gabriel Dooley, Managing Director."

60. In May of 2016 the plaintiff was writing to Mr Keith Smith of Arthur Cox requesting that Mr Se?n Mulryan of Ballymore Ireland Group Limited produce a copy of the original deed of mortgage dated 22 October 2009.

61. By letter dated 20 June 2016 the plaintiff wrote directly to Mr Se?n Mulryan attaching a statement of claim and requesting a defence - and threatening a motion for judgment in default.

62. By letter dated 18 October 2016 to Mr Keith Smith of Arthur Cox the plaintiff acknowledged receipt of a notice for particulars and enclosed a copy of the contract agreement dated 25 August 2005 as his reply.

63. The plaintiff was in correspondence with Mr Keith Smith of Arthur Cox in May 2018. It appears that the correspondence grew less as time went on with something suggestive of a revival in late 2023.

64. In August 2024 Ferrys Solicitors were in correspondence with Arthur Cox concerning the litigation and purported to deliver the statement of claim dated 27 August of 2024.

65. The plaintiff's engagement in correspondence and his actions evident from same, including those touched upon above, illustrate a person quite able to articulate issues and to robustly communicate in relation to matters with which he was concerned. There is nothing evident from the correspondence to support the plaintiff's assertion that he was in some way unable to prosecute this claim. Furthermore, his letter to Mr Se?n Mulryan of 19 January 2016 illustrates that the plaintiff was at that time aware of his "delay in progressing court proceedings" although he sought to explain it on the basis of his in depth research into the appointment of Mr Stephen Tennant as receiver.

66. Also evident from the papers is the fact that the plaintiff received an opinion from Senior Counsel in August 2015 at which time his solicitors were Ferrys Solicitors (who subsequently came on record for him in relation to this motion and these proceedings). The opinion is not optimistic in terms of the plaintiff's likelihood of success. The fact of the receipt of this opinion was not disclosed by the plaintiff until it was in the late affidavit delivered by him shortly before the hearing of the motion. And it is also the position that other matters which emerged since the affidavits were originally closed and the case fixed for hearing was the discovery by the defendants' solicitors of the plaintiff's involvement in the other proceedings referenced above.

67. For a person asserting an inability to prosecute this action for a myriad of reasons it is quite remarkable that the documentation, including correspondence, in fact discloses considerable energy and activity by the plaintiff in other litigation and related matters over the years since this action was commenced. To put it another way, it is remarkable that the plaintiff is asserting an inability to do something which it appears he has in fact been doing over the years since this action was commenced by him.

68. The Plaintiff submitted that the litigation between the parties would not end even if this motion was successful as he is of the view that a fresh claim could still be mounted against the defendants. The defendants disagree. In any event, the court must deal with the claim before it and the plaintiff's delay in prosecuting it.

69. It is the position that applications such as this must be approached on a case-by-case basis as cases and circumstances differ. One cannot legislate for what may amount to extenuating circumstances or as to what personal circumstances may provide a valid excuse for gross and inordinate delay. In this regard, the court has considered the course of the proceedings and all of the evidence - and having regard to the submissions on both sides.

70. The total unexplained delay in this instance is well in excess of five years and there is nothing in the evidence to suggest the sort of exceptional circumstances which would persuade the court not to dismiss these proceedings for want of prosecution. There is not in this case any pressing exigency of justice that requires that the case be permitted to go to trial. The balance of justice requires the court to find in favour of the defendants.

71. That being so, the court need not move on to consider the issue of any prejudice to the defendants. However, the court will observe that this is a Plenary action involving an alleged breach of contract dating back to a 2005 Contract and an alleged breach in 2010. It is clear that some employees of the defendants who were involved with the plaintiff and with the decisions around the services contract, the share purchase agreement and the Florentine development are no longer working with the defendants. The court does not accept the plaintiff's submission to the effect that oral evidence would play little if any role in the proceedings. As a matter of probability oral evidence would be required in the proceedings and would prove relevant to issues in dispute between the parties. What people involved said and did in 2005 and subsequently would inevitably require oral evidence. On behalf of the plaintiff it was said that " ... there may well be required to be some oral evidence surrounding how the contracts were entered into ..." [ Transcript Page 145 - Line 8 ]. While this was referred to later as the "Is that your signature? type of evidence because the contract, the documents are the documents " [ Transcript Page 149 - Line 16 ] the court is satisfied that the oral evidence would likely need to go much further in many respects.

72.??Memories fade with time and witnesses may no longer be available or as clear as to events - and/or may be reluctant to be involved - after the passage of 15 years or more.

73. Indeed the Plaintiff in his first affidavit referred to being hampered even when he got legal representation due to his " lack of sophistication, as well as the fact that my memory and understanding of contemporaneous events had been badly affected by mental health issues....".

74. Having regard to the period of time which has passed in this breach of contract case it is probable that the evidence on relevant issues has become "... degraded, less certain, clear, persuasive and reliable "? - to borrow words of the Chief Justice in Kirwin [ paragraph 17 ]. ?

75. There is a probability of the defendants suffering significant prejudice in the above respect if the case is allowed to proceed.

76. The sort of exceptional circumstances which would persuade the court not to dismiss these proceedings for want of prosecution have not been established by the Plaintiff.

77. The court will therefore find for the defendants and make an order dismissing these proceedings for want of prosecution.

78. The court will list the matter for mention on Thursday 26 March 2026 at 10.00 a.m. and deal with costs and any matters arising.

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC170.html