Barrett v Traymount Construction Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 03 August 2022 |
| Neutral Citation | [2022] IEHC 502 |
| Court | High Court |
| Docket Number | [Record No. 2012/3641P] |
[2022] IEHC 502
[Record No. 2012/3641P]
THE HIGH COURT
Want of prosecution – Delay – Balance of justice – First defendant seeking an order striking out the plaintiff’s action against it for want of prosecution – Whether the plaintiff had been guilty of inordinate and inexcusable delay
Facts: The plaintiff, Mr Barrett, was the owner of 99A, North Road, Finglas, Dublin 11. The first defendant, Traymount Construction Ltd, constructed the plaintiff’s house in 2003/2004. In 2008, the plaintiff noticed cracks in the walls of his house. In 2012, the plaintiff issued proceedings against the first defendant and also against a number of other defendants who had been involved in the supply of infill which had contained pyrite. Following expert advice, the plaintiff changed the focus of his claim to one alleging that the defective condition of his house was primarily due to the negligence and breach of duty on the part of the builder in laying the foundations to the building, rather than being due to the presence of pyrite therein. A notice of discontinuance was served by the plaintiff on the second to fifth defendants, LM Developments Ltd, Roadstone Wood Ltd, Roadstone Dublin Ltd and CRH plc, on 6th June, 2014. He delivered his statement of claim on 25th June, 2014. The first defendant filed a full defence to the action on 1st March, 2016. The first defendant sought an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts, or alternatively, pursuant to the inherent jurisdiction of the High Court, striking out the plaintiff’s action against it for want of prosecution. The first defendant submitted that as the action would not come on for hearing until 2023, or 2024, it would not receive a fair trial of the action, as that would involve the principal of the company, Mr Travers, having to recall events that occurred almost twenty years earlier. The first defendant pointed to the fact that it did not have documents relating to the building works carried out at the locus; it did not have the benefit of any engineering report on the state of the foundations as originally laid by the first defendant; and a number of crucial witnesses may not be available to it. It was submitted that the plaintiff had been guilty of inordinate and inexcusable delay and that the balance of justice lay in favour of striking out the proceedings against the first defendant.
Held by Barr J that there had been active delay on the part of both parties to the action. What persuaded the court that it should refuse the reliefs sought by the first defendant and allow the action to proceed to a hearing was the fact that the central issue in the case was the adequacy of the foundations that were originally laid in the property, and in light of the fact that the burden of proving that the foundations as originally laid were defective rested on the plaintiff, and in light of the fact that the plaintiff had offered to make available to the first defendant all of the reports and records of its independent experts, and as the first defendant may be able to obtain other relevant documentation by way of third party discovery from the architect and the engineer, the court was satisfied that the first defendant would be in a position to adequately defend itself at the trial of the action, even if it was heard in 2023, which appeared likely.
Barr J refused the reliefs sought by the first defendant. In order that the action may proceed to a hearing without any further delay, the court proposed giving the following directions in its order: (a) the court will extend the time within which the plaintiff may file a reply to the first defendant’s defence (the court directed that this be done within four weeks of perfection of the order); and (b) the court directs that the plaintiff make discovery of all reports, sampling documents and records in its possession concerning the foundations as laid at the locus and the necessary remedial works thereto, including such reports and records of Mr Murray of Thorntons Chartered Surveyors, JJ. Campbell & Associates Ltd, Ground Investigations Ireland and Geomaterials Research Services Ltd, that are in the possession of the plaintiff (such discovery to be made on affidavit within eight weeks of the perfection of the order).
Reliefs refused.
JUDGMENT of Mr. Justice Barr delivered on the 3 rd day of August, 2022 .
. The plaintiff is the owner of 99A, North Road, Finglas, Dublin 11.
. The first named defendant is the company which constructed the plaintiff's house in 2003/2004.
. The plaintiff purchased the property from a Mr. Barry Teeling, who had developed a number of houses on the road. After the houses had been constructed, Mr. Teeling had leased the house to a tenant, until it was sold to the plaintiff in 2006.
. In 2008, the plaintiff noticed cracks in the walls of his house. In 2012, the plaintiff issued proceedings against the first defendants and also against a number of other defendants, who had been involved in the supply of infill, which had contained pyrite. However, following expert advice, the plaintiff changed the focus of his claim to one alleging that the defective condition of his house was primarily due to the negligence and breach of duty on the part of the builder in laying the foundations to the building, rather than being due to the presence of pyrite therein. A notice of discontinuance was served by the plaintiff on the second to fifth named defendants on 6 th June, 2014. He delivered his statement of claim on 25 th June, 2014. The first named defendant (hereinafter referred to as ‘the defendant’) filed a full defence to the action on 1 st March, 2016.
. In this application, the defendant seeks an order pursuant to O.122, r.11 of the Rules of the Superior Courts, or alternatively, pursuant to the inherent jurisdiction of the court, striking out the plaintiff's action against it for want of prosecution.
. In essence, the defendant submits that as the action will not come on for hearing until 2023, or 2024, it will not receive a fair trial of the action, as that will involve the principal of the company, Mr. Tony Travers, having to recall events that occurred almost twenty years earlier.
. The defendant points to the fact that it does not have documents relating to the building works carried out at the locus; it does not have the benefit of any engineering report on the state of the foundations as originally laid by the defendant; and a number of crucial witnesses may not be available to it at this remove. It was submitted that the plaintiff has been guilty of inordinate and inexcusable delay and that the balance of justice lies in favour of striking out the proceedings against the defendant.
. In response, it was submitted on behalf of the plaintiff that with a latent defects case, time cannot possibly run from when the work is done, as the defect caused by the defective workmanship, only becomes apparent later on. In this case, it was submitted that the plaintiff acted quickly to investigate the cause of the cracks that appeared in his house in 2008.
. It was submitted that the proceedings had been issued in a timely manner. While it was conceded that there were periods of delay thereafter, it was submitted that some of these were caused by the defendant, e.g. it delayed in entering its appearance to the summons; it delayed in providing a proper affidavit of discovery; and the directors of the company caused delay in the litigation by having the company voluntarily dissolved and removed from the Register of Companies in 2017, when they knew that there were two sets of legal proceedings extant against the company.
. It was submitted that, insofar as it had been asserted by the defendant that it did not have any relevant documentation, according to the director of the defendant who had sworn the affidavit of discovery, those documents had not been retained after the house had been constructed in or about 2003/2004, which was long before the defects appeared in the plaintiff's house and long before the plaintiff's action commenced; accordingly, it was submitted that if there was any delay on the part of the plaintiff in instituting or prosecuting the proceedings herein, he could not be blamed for the non-availability of that documentation.
. It was submitted that while the defendant did not have its own engineering inspection of the foundations as originally laid, that was the fault of the engineer retained by the first defendant, who did not attend at an arranged joint engineering inspection, when the ground had been opened up. Any deficit that arose in the expert evidence available to the defendant in this regard, could not be said to be the fault of the plaintiff.
. The plaintiff submitted that the balance of justice lay in favour of allowing the action to proceed, as the action would turn almost exclusively on expert evidence. In this regard, the plaintiff was willing to make available the reports and documents of his experts in relation to their inspection and analysis of the original foundations. It was submitted that this would enable the defendant to engage its own expert to examine these documents. This would enable him to give an expert opinion as to whether the foundations as originally laid, had been laid in a proper and workmanlike manner. Thus, it was submitted that there was no real prejudice to the defendant in the conduct of its defence at the trial of the action. It was submitted that in these circumstances, the defendant's application should be refused.
. It is necessary to set out the background to these proceedings in some detail, because the parties...
To continue reading
Request your trial
-
Daly v The Minister for Finance
...context to continue to refer to moderate prejudice. 42 . I fully agree with Barr J. in Barrett v. Traymount Construction Limited & Ors. [2022] IEHC 502, that where this court is faced with conflicting decisions of the Court of Appeal, the appropriate course is to follow the most recent deci......