Crowe v Kitara Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 02 March 2016
• Neutral Citation: [2016] IECA 62
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Nos.: 2015/332, 2015/333, 2015/341
• Date: 02 March 2016

[2016] IECA 62

THE COURT OF APPEAL

Mahon J.

Appeal Nos.: 2015/332, 2015/333, 2015/341

Ryan P.

Mahon J.

Edwards J.

Jacqueline Crowe, Barry O'Neill

and

Graham Gibbons

Plaintiffs

- and -

Kitara Limited, Collen Group Limited, CPM Architecture t/a Collen Project Management, CPM Engineering t/a Collen Project Management, Lightgate Professional Services Limited, Kingspan Century Limited, Dublin City Council, LM Developments Limited

and

Diarmuid Kelly t/a Diarmuid Kelly and Associates

Defendants

Negligence – Nuisance – Breach of duty – Defendant seeking to appeal the refusal to set aside orders renewing summonses – Whether there was any excuse for the revival of the summons after the renewal period had expired

Facts: The plaintiffs, Ms Crowe, Mr O?Neill and Mr Gibbons, purchased apartments in an apartment complex in Belmayne, Dublin 13, in which all the defendants had an involvement, either in the construction or design of the complex or, in the case of the ninth defendant, Mr Kelly, the design of fire protection measures to be incorporated into the structure. Subsequently the complex was found to be deficient in relation to fire prevention issues, thus rendering it unsafe for residential use. The three plaintiffs contended that they were the owners of worthless properties and separately instituted proceedings claiming damages for negligence, nuisance and breach of duty (including aggravated and/or exemplary damages) against the defendants. In all three cases the originating plenary summonses issued on 9th November 2012. In the cases of Ms Crowe and Mr O?Neill the plenary summonses were renewed for six months by the High Court on 3rd February 2014 pursuant to Order 8 rule 1 of the Rules of the Superior Courts, and were served on Mr Kelly on 31st July 2014, just two days prior to the expiration of the six month renewal period. In the case of Mr Gibbons, the High Court granted leave for the renewal of the plenary summons on 10th March 2014 for six months. It was not served on Mr Kelly prior to the expiration of the six month renewal period but was purportedly served on him on 12th September 2014 some three days after its renewal had lapsed. A further renewal of the summons from 22nd September 2014 was then sought by Mr Gibbons and was granted by the High Court. This was approximately two weeks after the earlier six month renewal had expired. The summons was subsequently re–served on Mr Kelly, who contended that the court did not have jurisdiction to renew the summons in circumstances where its earlier renewal had previously expired. A conditional appearance was entered by Mr Kelly on 18th November 2014. In all three cases, service of the proceedings on Mr Kelly was affected after the expiry of the relevant limitation periods. The date of issue of the summons was however marginally within the limitation period. It was accepted by all three plaintiffs that they faced difficulties in relation to the Statute of Limitations in the event that the renewals of their summonses had not been granted in February 2014, and, in the case of Mr Gibbons, the 22nd September 2014. Mr Kelly applied to set aside High Court orders renewing the plaintiffs? originating summonses. On 8th June 2015 Moriarty J upheld the renewal of summonses issued by Ms Crowe and Mr O?Neill, but set aside the renewal of the plenary summons issued by Mr Gibbons from the 22nd September, 2014. Before the Court of Appeal Mr Kelly appealed the refusal to set aside the orders renewing the summonses in the cases of Ms Crowe and Mr O?Neill and Mr Gibbons appealed the decision to set aside the renewal of his plenary summons.

Held by Mahon J that there existed other good reasons such as justified the first renewal of the summonses in the cases of all three plaintiffs. While the Court noted that the consequences of so doing created some prejudice for Mr Kelly given the length of time that had elapsed since his involvement with the development, Mahon J agreed with the view expressed by Moriarty J to the effect that this was largely a document based case and it was likely that Mr Kelly was in no more difficult a position to defend himself after service of the proceedings than he would have been had these proceedings progressed more speedily, and more precisely, had he been served during 2013. In the case of Mr Gibbons, Mahon J held that while, as in the case of his co?plaintiffs, he had, at least, an arguable excuse for his failure to serve the summons within the life of its renewal (which renewal expired on 9th September 2014), it was impossible to find any justification or excuse for the revival of the summons after that renewal period had expired.

Mahon J held that he would dismiss both Mr Kelly?s appeal in the cases of Ms Crowe and Mr O?Neill and Mr Gibbons appeal.

Appeal dismissed.

Judgment of Mr. Justice Mahon delivered on the 2nd day of March 2016

1 These appeals arise from Orders made by Moriarty J. on 8th June 2015 in relation to applications by the ninth named defendant (Mr. Kelly) to set aside High Court Orders renewing the plaintiffs' originating summonses.

2 The High Court Orders renewing the plenary summonses in all three cases are:-

(i) The Order dated 3rd February 2014 renewing the plenary summons issued by the plaintiff, Ms. Crowe, for six months.

(ii) The Order dated 3rd February 2014 renewing the plenary summons issued by the plaintiff, Mr. O'Neill, for six months.

(iii) The Order dated 10th March 2014 renewing the plenary summons issued by the plaintiff, Mr. Gibbons, for six months.

(iv) The order dated 22nd September 2014 further renewing the plenary summons issued by Mr. Gibbons, from that date, notwithstanding that its earlier renewal had lapsed on 9th September 2014.

3 On 8th June 2015 Moriarty J. upheld the renewal of summonses issued by Ms. Crowe and Mr. O'Neill, but set aside the renewal of the plenary summons issued by Mr. Gibbons from the 22nd September, 2014. Moriarty J.'s reasons in respect thereof are set out in his detailed judgment delivered on 19th March 2015.

4 Mr. Kelly has appealed the refusal to set aside the Orders renewing the summonses in the cases of Ms. Crowe and Mr. O'Neill and Mr. Gibbons has appealed the decision to set aside the renewal of his plenary summons.

5 The three plaintiffs have separately instituted proceedings in which the defendants are similar (and includes, in each case, Mr. Kelly as the ninth named defendant) as are, broadly, their background facts and the reliefs sought. Where there are differences, such are identified as necessary in the course of this judgment, as indeed they were in the judgment of Moriarty J. On this basis I have prepared one comprehensive judgment as also did Moriarty J. in the court below.

The background to the proceedings

6 The plaintiffs purchased apartments in an apartment complex in Belmayne, Dublin 13, in which all the defendants had an involvement, either in the construction or design of the complex or, in the case of Mr. Kelly, the design of fire protection measures to be incorporated into the structure. Mr. Kelly was not otherwise involved in the design or construction. Subsequently the complex was found to be deficient in relation to fire prevention issues, thus rendering it unsafe for residential use in consequence whereof, the plaintiffs contend they are now the owners of worthless properties. In this respect, the plaintiffs claim damages for negligence, nuisance and breach of duty (including aggravated and/or exemplary damages) against the defendants, including Mr. Kelly.

7 In all three cases the originating plenary summonses issued on 9th November 2012.

The summonses' renewal history

8 In the cases of Ms. Crowe and Mr. O'Neill the plenary summonses were renewed for six months by the High Court on 3rd February 2014 pursuant to Order 8 rule 1 of the Rules of the Superior Courts, and were served on Mr. Kelly on 31st July 2014, just two days prior to the expiration of the six month renewal period.

9 In the case of Mr. Gibbons, the High Court granted leave for the renewal of the plenary summons on 10th March 2014 for six months. It was not served on Mr. Kelly prior to the expiration of the six month renewal period but was purportedly served on him on 12th September 2014 some three days after its renewal had lapsed. A further renewal of the summons from 22nd September 2014 was then sought by Mr. Gibbons and was granted by the High Court. This was approximately two weeks after the earlier six month renewal had expired. The summons was subsequently served (or re-served) on Mr. Kelly. Mr. Kelly contends that the court did not have jurisdiction to renew the summons in circumstances where its earlier renewal had previously expired. A conditional appearance was entered by Mr. Kelly on 18th November 2014.

10 In all three cases, service of the proceedings on Mr. Kelly was affected after the expiry of the relevant limitation periods. The date of issue of the summons is however marginally within the limitation period. It is accepted by all three plaintiffs that they faced difficulties in relation to the Statute of Limitations in the event that the renewals of their summonses had not been granted in February 2014, and, (in the case of Mr. Gibbons), the 22nd September 2014. .

11 The excuse for the delay in the service of the plenary summons on Mr. Kelly by the plaintiffs was stated to be their need to engage an expert and obtain his report (which was procured in 2014) following a parting of the ways between them and their previously engaged expert from whom they had received a report in 2012. Additionally in the case of Mr. Gibbons, the court was advised that a late change of solicitor by him further delayed service of the proceedings initially to a date some days after the expiry of the first renewal period, and subsequently within the second six month renewal...