Background
Ballycrag Developments owned Wynnstay House. Anne O’Neill had advanced approximately €2 million to the company in 2013 and 2014, secured over the property, and appointed a receiver in 2022. A January 2023 settlement contemplated the property’s sale to Greg Kavanagh Dev Co Limited, with time expressly made of the essence. The arrangement was later varied after earlier specific-performance proceedings, but a dispute arose over whether the agreed €2 million price was inclusive of VAT.
In January 2024, Greg Kavanagh and the company brought fresh proceedings seeking, among other relief, specific performance and a declaration on the VAT-inclusive price. They registered a lis pendens against the property. The receiver applied to vacate it, alleging delay in prosecuting the action, and also sought security for costs from the corporate plaintiff.
The Court’s Holding
Ms Justice Bolger granted the application to vacate the lis pendens. Although the defendants had contributed to some delay, including taking about four months to enter an appearance, the plaintiffs bore responsibility for most of the delay between issuing proceedings and filing their statement of claim in February 2026. Their explanations, including limited engagement between the parties and the defendants’ litigation strategy in related proceedings, did not make the delay reasonable.
The Court held that a party registering a lis pendens must prosecute the action with particular “expedition and vigour” under s. 123(b)(ii) of the Land and Conveyancing Law Reform Act 2009. The Court indicated that the second defendant should receive the costs of that application, with execution stayed pending resolution of the proceedings. It refused security for costs against the corporate plaintiff: the individual co-plaintiff’s unchallenged evidence that he could fund the company meant inability to meet an adverse costs order had not been established; alternatively, the presence of the individual co-plaintiff was a special circumstance justifying refusal.
Key Takeaways
- A lis pendens may be vacated where the claimant does not advance the proceedings promptly after registration.
- Engagement between parties will justify only limited delay where it does not explain prolonged inactivity.
- For security for costs, unchallenged evidence that an individual co-plaintiff can fund a corporate plaintiff may defeat proof of inability to pay.
Why It Matters
The decision underscores that a lis pendens is not a device for preserving leverage over property while litigation proceeds slowly. Its registrant carries a heightened statutory duty to move the case forward quickly, particularly where the property is deteriorating and generating costs.
It also illustrates the fact-sensitive nature of security for costs applications involving corporate plaintiffs. A corporate vehicle’s lack of filed accounts did not, on these facts, overcome unchallenged evidence of funding from the individual co-plaintiff.