Altan Management (Galway) Ltd v Taylor Architects Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 16 March 2021
• Neutral Citation: [2021] IEHC 218
• Docket Number: [Record No. 2016/3851 P.]
• Court: High Court
• Date: 16 March 2021

BETWEEN

ALTAN MANAGEMENT (GALWAY) LIMITED

PLAINTIFF

AND

TAYLOR ARCHITECTS LIMITED, HUGH GRIFFIN ASSOCIATES

AND

CORDIL CONSTRUCTION LIMITED (IN RECEIVERSHIP)

DEFENDANTS

[2021] IEHC 218

Mark Heslin

[Record No. 2016/3851 P.]

THE HIGH COURT

Plenary summons – Renewal – Special circumstances – First defendant seeking an order setting aside an order renewing the plenary summons – Whether special circumstances existed which justified renewal

Facts: The first defendant, Taylor Architects Ltd, on 8th January 2020, issued a motion seeking an order pursuant to Order 8, rule 2 of the Rules of the Superior Courts setting aside an order of 24th June, 2019 renewing the plenary summons dated 29th April, 2016. Counsel for the first defendant submitted, inter alia, that the evidence wholly undermined the existence of the “special circumstances” which were referred to in the High Court’s 24th June 2019 order. It was argued that there was no evidence to sustain the proposition that the first defendant was on notice of the issues in the proceedings prior to obtaining the renewal following the ex parte application of the plaintiff, Altan Management (Galway) Ltd. It was also submitted that it could never have been properly said by the plaintiff that there was no expert’s report and that the evidence demonstrated that there was, in fact, a report by the plaintiff’s expert engineer which issued in 2016. It was also submitted that, in circumstances where the relevant development was completed in 2004, the passage of time would inevitably have resulted in fading memories and prejudice to the first defendant with further prejudice evidenced by averments made on behalf of the first defendant that certain staff had left and that certain documents were no longer available. It was further submitted that, insofar as para. 5 of Ms Burke’s 10th May 2019 affidavit, which grounded the ex parte application, stated that “the Plaintiff has had to undertake remedial works to the apartments”, further prejudice would have been caused to the first defendant in that alleged defects cannot be inspected if remedial works have already taken place.

Held by Heslin J that a consideration of the facts in this case demonstrated that neither of the two special circumstances which were stated in the court’s 24 June 2019 order existed; the evidence wholly undermined their existence. Heslin J held that there was also evidence before the court of prejudice to the first defendant. Having taken into account all relevant matters including the interests of justice and issues concerning prejudice or hardship to either party, Heslin J was satisfied that there were no special circumstances which justified renewal of the summons. Moreover, given that, on the facts of this case, there were no special circumstances, it did not seem to Heslin J that the court had the discretion to grant a renewal, in the absence of such special circumstances regardless of any hardship which might result to the plaintiff. The existence of special circumstances on the facts of a given case seemed to Heslin J to be a sine qua non for the grant of a renewal and the evidence before the court wholly undermined the existence of the “special circumstances” stated in the court’s 24th June 2019 order.

Heslin J held that no special circumstances existed which justified renewal and that it was not in the interests of justice to renew the summons in question.

Order granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 16th day of March, 2021

Introduction

1 This matter comes before the court in circumstances where, on 8th January 2020, the First Named Defendant issued a motion seeking an order pursuant to Order 8, rule 2 of the Rules of the Superior Courts setting aside an order of 24th June, 2019 renewing the plenary summons dated 29th April, 2016.

The Order of 24th June, 2019

2 The order made on 24th June, 2019 (Meenan J.) refers to the application which was made ex parte by the Plaintiff, grounded on the affidavit of Ms. Niamh Burke of 14th May, 2019. The operative part of the order states as follows:- “ And the Court being satisfied having regards to Order 8, Rule 1(4) that the following special circumstances justify the making of an Order extending the time for leave to renew the summons namely the non-existence of an expert report and it appearing that the defendants were at all stages on notice of the issues in these proceedings” (emphasis added). The order provided that, pursuant to O. 8, r. 1, the plenary summons be renewed for a period of three months.

Order 8

3 O. 8, r. 1 of the Rules of the Superior Courts, 1986, as substituted by the Rules of the Superior Courts (Renewal of Summons) 2018 (S.I. No. 482 of 2018) came into operation on 11th January 2019. Sub-rule (1) of O. 8, r. 1 provides that no summons shall be in force for more than 12 months and a Plaintiff may apply, prior to the expiry of 12 months, to the Master for leave to renew. Sub-rule (2) provides that the Master may order the summons to be renewed for three months if satisfied that reasonable efforts have been made to serve or for other good reason. Sub-rule (3) provides that, after the expiration of 12 months and notwithstanding an order made under sub-rule (2), the relevant application must be made to the court. That is what occurred in the present case, resulting in the 24th June, 2019 order. For present purposes, sub-rule (4) is of particular relevance and states the following: “ The Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.” (emphasis added)

4 There are two special circumstances stated in the order of 24th June, 2019, which I highlighted in bold in para.2 above, namely (1) “ the non-existence of an expert report”; and (2) “it appearing that the defendants were at all stages on notice of the issues in these proceedings”. At the heart of the application before this Court is whether, in light of the evidence before the court, there were special circumstances justifying the renewal. This is not an appeal against the order made on 24th June, 2019, nor is it an application for judicial review. Rather, it is an application made pursuant to O. 8, r. 2 which provides as follows:-

“In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”

5 The First Named Defendant, being the Applicant, was not heard at the ex parte stage. Thus, this application constitutes a full de novo consideration of whether the summons ought to be renewed. For the purposes of the hearing which took place on 23rd February, 2021, I was provided with a book of pleadings, a book of motion papers, a book of correspondence and a book of authorities. No written submissions were prepared by either side but Counsel made very helpful oral submissions during the hearing. I have carefully considered all of the foregoing. An analysis of the evidence before the court reveals the following which I propose to set out in chronological order for ease of reference.

2004

6 A development was constructed at Altan, Western Distributor Road, Knocknacarra, Galway in or about January, 2004.

25th March, 2015 Letter from Plaintiff's Solicitors to Eamonn McCarney Esq

7 On 25th March, 2015, Messrs D.M. O'Connor & Co., solicitors for the Plaintiff, wrote to “ Eamonn McCarney Esq, Taylor Architects” on behalf of their client, which was named in the said letter as “ Altan Management Company Limited”. The title of the letter was stated to be in relation to “Development at Altan, Western Distributor Road, Knocknacarra, Galway” and the letter stated the following:-

“We are instructed by Altan Management Company Limited in relation to a development at Altan, Western Distributor Road, Knocknacarra, Galway.

We note that your client Mr. McCarney was involved while the project was being developed.

We have been instructed by the management company to regularise all matters pertaining to the development insofar as it is possible and in this regard we are endeavouring to obtain whatever documentation we can to allow for this to be done.

We should be very much obliged if you would review your files and confirm what papers if any you hold and further we should be obliged to receive copies of same.

We are anxious to make progress in the matter and a response by return would be greatly appreciated.”

8 A number of comments can fairly be made in relation to the foregoing letter. It was sent 11 years after the completion of the development in question. Although the letter states that the solicitors have been instructed “ to regularise all matters pertaining to the development”, it is not said what those matters are. For example, no indication is given in the letter as to whether those are legal matters or matters relating to title or matters concerning insurance or matters relating to development works. This letter could not possibly be interpreted as a letter of claim. None is identified and none is made. It was also a letter addressed to Mr. McCarney and one in which Mr. McCarney's involvement in the “project” was referred to. Thus, as well as not being a letter of claim against Taylor Architects, it is a letter directed to a named individual.

19th May, 2015 Letter from Plaintiff's Solicitors to Mr. Eamonn McCarney

9 Approximately two months later, D.M. O'Connor & Co. Solicitors wrote again to “ Mr. Eamonn McCarney, Taylor Architects”, naming their client and referring to the development. The letter stated the following:-

“Further to our letter dated the 25th March, we enclose herewith copy Certificate of Compliance and note your involvement in the...