Arthur & anor -v- Gorman & anor,  IEHC 502 (2017)
|Docket Number:||2012 430 P|
|Party Name:||Arthur & anor, Gorman & anor|
THE HIGH COURT[2012 No. 430 P.]
JOSEPH ARTHUR AND DEIRDRE ARTHUR PLAINTIFFSAND
JOSEPH GORMAN AND J.A. GORMAN CONSULTING LIMITED DEFENDANTS
JUDGMENT of Mr. Justice Eagar delivered on the 28th day of July, 2017
This is a judgment in respect of an application by way of notice of motion on behalf of the first named defendant:
(1) For an order dismissing the plaintiffs claim as against the first defendant for want of prosecution.
(2) Further or in the alternative pursuant to the inherent jurisdiction of this Court, an order dismissing the plaintiffs claim as against the first named defendant on the basis of inordinate and inexcusable delay on behalf of the plaintiffs herein, or in the alternative, orders or directions that this honourable Court deems fit.
The plenary summons was issued against the two defendants by the plaintiffs on the 15th of January, 2012 claiming damages in respect of loss, damage and expenses arising from the negligence, breach of contract and/or breach of duty by the defendants.
The background to the pleadings arose from alleged defects in the design of the plaintiff’s family home by the defendants. The defendants filed an appearance on the 2nd of March, 2012 and have not as yet delivered a defence.
On the 11th of July, 2014 Kearns P. ordered that the proceedings against the second named defendant be dismissed on the grounds that the action was bound to fail as it had no reasonable prospect of success, given that the second named defendant had not been incorporated until the 14th of June, 2004. This date post-dated the completion of works on the property.
The plaintiffs’ claim states that they retained the first named defendant from early 1999 to oversee the building of a family home, to ensure it was built correctly. The relied on the defendant’s expertise in this regard. Based on this retainer, the first named defendant prepared designs and a percolation test in or around February, 1999 for the local authority in support of the planning application. This was submitted to the local authority on about the 5th of March, 1999. The planning application was approved by the local authority on the 1st of June, 1999. The first named defendant as an expert also signed certificates for stage payments to Bank of Ireland, Mullingar at different stages between June 1999 to December 1999.
The construction of the house commenced on the 6th of June, 1999 and it was completed in or around early December, 1999 and the plaintiffs moved in on the 12th December, 1999.
The plaintiffs identified some dampness many years later, which they assumed was a result of poor ventilation. The plaintiffs claim they were not aware that there was a fundamental defect in the design of their home at that stage. The dampness became a health issue, and as a result the plaintiffs were forced to move out of the house in September, 2009 at considerable financial loss.
As a result of this the plaintiffs commissioned reports, which indicated there was a problem with the foundations of the house. These reports were dated the 23rd February, 2011 from Tom O’Brien Consultant Engineer and on the 20th July, 2011 from Padraig Arthurs & Associates. This was the first notification to the plaintiffs that there was a fundamental defect with the foundations of the home as a result of the negligence of the first named defendant.
In the report dated the 23rd February, 2011 Tom O’Brien Consultant Engineer Ltd. points out that the plaintiffs engaged the first named defendant to supervise the construction of their house. They relied on the first named defendant’s expertise to ensure the house construction was suitable for the site conditions.
However, the report finds, inter alia, that the defendant failed to discharge his duties in a suitably competent manner. He designed a raft foundation and a knee wall construction that created a sump (a low space that collects liquids). Without a tanking membrane, this caused moisture to gather. This omission has caused a significant amount of damage to the house, and nuisance and discomfort to the plaintiffs.
Padraig Arthurs & Associates Chartered Quantity Associates in their report dated the 20th July, 2009 claims the role of the first named defendant evolved into that of a design engineer, when it was discovered that there were different ground conditions where the property was to be built. This report states that this imposed additional responsibilities on the first named defendant and he recommended a raft foundation for the property.
Raft foundations are normally calculated and designed by the defendant in his design office. The first named defendant was under an extreme duty of care to carefully address this issue. The report further states that the first named defendant should have advised the plaintiffs that the services of a specialist tanking company should be employed to integrate a system of tanking.
On behalf of the first named defendant, it is alleged that the plaintiffs failed to plead in their plenary summons or statement of claim the date of the alleged retainer between the plaintiffs and the first named defendant. The plaintiffs indicate the retainer between the parties was concluded in early 1999 in their replying affidavit and the property was completed in late 1999 over eighteen years ago and some thirteen years prior to the issue of the plenary summons. They say that besides the issue of the statute of limitations, it is clear the plaintiffs were under an obligation in light of the delay pre-commencement to the proceedings to prosecute their claim in a timely manner. The first named defendant states that since the institution of the proceedings over five years ago on the 15th January, 2012, there has been ongoing failure on the part of the plaintiffs to prosecute their claim.
The plaintiffs’ statement of claim was delivered on the 26th of July, 2012 but no further steps were taken thereafter by the plaintiffs. The solicitors on record for the plaintiffs at that time applied successfully to come off record on the 1st July, 2014 on the basis of a failure by the plaintiffs’ solicitor to obtain instructions. The defendants issued a motion seeking to dismiss the plaintiffs’ claim on the ground that no reasonable cause of action was disclosed and/or that their claim was bound to fail and/or was frivolous and vexatious. This was heard by Kearns P. on the 11th of July, 2014.
There was no appearance by the plaintiffs and an order was granted dismissing the plaintiffs’ claim as against the second named defendant, on the basis that the second defendant had not been properly incorporated as of the date of retainer and/or construction. It was only after the issuing of this application to dismiss the plaintiffs action for want of prosecution on the 22nd of November, 2016 that steps were taken by the plaintiffs, and solicitors came on record for the first named defendant on the 17th of December, 2016, for the first named plaintiff on the 17th of December, 2016 and for the second named plaintiff on the 13th of February, 2017.
The plaintiffs say that they had to deal with difficult problems associated with their home and had to re-house themselves with young children. They have four dependent children know...
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