Farrell v Arborlane Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IECA 224
• Date: 26 July 2016
• Court: Court of Appeal (Ireland)
• Docket Number: 2015/418 H.C. 2007 No. 9550 P.

[2016] IECA 224

THE COURT OF APPEAL

Sheehan J.

2015/418

H.C. 2007 No. 9550 P.

Irvine J.

Sheehan J.

Baker J.

SACHA FARRELL

PLAINTIFF

AND

ARBORLANE LIMITED, McGILL CONSTRUCTION LIMITED,

THE NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED,

TIMOTHY ROWE

AND

MICHAEL McGILL PRACTISING UNDER THE TITLE

AND

STYLE OF ROWE McGILL ARCHITECTS,

TIMOTHY ROWE, MICHAEL McGILL,

ANTHONY LAWTON OPERATING UNDER THE STYLE

AND

TITLE OF LAWTON AND ASSOCIATES

DEFENDANTS

Culpable delay – Balance of justice – Professional negligence – Defendant seeking an order striking out the proceedings against him on grounds of culpable delay by the plaintiff – Whether balance of justice favoured the plaintiff

Facts: The plaintiff, Ms Farrell, purchased an apartment from the first defendant, Arborlane Ltd, in 2002 in a new development known as the Ramparts in Co. Dublin. Soon after taking possession of this apartment, significant defects began to emerge including cracked walls and water leakage. The plaintiff entered into negotiations with the developer and remedial work was attempted, but ultimately proved unsuccessful. Proceedings were commenced on the 20th December, 2007 and were served on the seventh defendant, Mr Lawton, on the 15th October, 2008. In those proceedings the plaintiff placed reliance on a certificate of compliance issued by the seventh defendant in 2000. The statement of claim was delivered to the seventh defendant on the 23rd May, 2014. On the 29th May, 2014, the seventh defendant wrote making certain complaints about that statement of claim and pointing out certain matters which he believed to be of relevance to his alleged liability. On the 11th February, 2015, the seventh defendant issued a motion seeking an order striking out the proceedings against him on grounds of culpable delay by the plaintiff and on the following day he delivered his defence without prejudice to the motion. On the 9th July, 2015, the High Court (Barrett J) found that there was inordinate delay which was not entirely excusable and went on to hold that the balance of justice favoured the plaintiff and in so doing dismissed the seventh defendant?s motion. The seventh defendant appealed to the Court of Appeal against that judgment.

Held by Sheehan J that he agreed with the trial judge?s finding that the plaintiff was guilty of inordinate delay. Sheehan J also held that that delay was inexcusable. However he held that the balance of justice favoured the seventh defendant. Applying Collins v Minister for Justice Equality and Law Reform?[2015] IECA 27, Sheehan J held that there was undoubted prejudice resulting to the seventh defendant arising from his having a professional negligence case hanging over him for so long and because the seventh defendant had encountered difficulty with his insurance company concerning the renewal of his professional indemnity insurance. Sheehan J held that the need to ensure the absence of a culture of delay meant that the moving party in any case must proceed promptly or run the risk of losing his or her right to proceed. Sheehan J held that the statement of claim served some nine years after the purchase by the plaintiff of her apartment was pleaded in general terms and failed to attribute to the seventh defendant any particular failure that would distinguish his liability from that of any of the other defendants. Sheehan J held that this was done after the plaintiff had the benefit of at least three expert reports on the structural issues, and that the generic nature of the pleas would inevitably lead to further delay in the particularisation of the claim. Sheehan J held that the seventh defendant was entitled to seek specificity with regard to the breaches alleged against him. Sheehan J considered that it would fail to do justice to the seventh defendant were he to ignore this factor and that the pleadings of the plaintiff appeared to be still some way off being complete.

Sheehan J held that he would allow the appeal and direct that the proceedings against the seventh defendant be struck out.

Appeal allowed.

Judgment of Mr. Justice Sheehan delivered on the 26th day of July 2016

1 This is an appeal by the seventh named defendant (Anthony Lawton, practicing as Lawton and Associates) from the judgment and order of the High Court (Barrett J.) dated respectively the 9th July, 2015, [2015] IEHC 535, and the 28th July, 2015, whereby the High Court refused the appellant's motion of the 11th February, 2015, in which he sought an order striking out the proceedings against him on grounds of culpable delay by the plaintiff.

2 The plaintiff purchased an apartment from Arborlane in 2002 in a new development known as the Ramparts in Co. Dublin. Soon after taking possession of this apartment, significant defects began to emerge including cracked walls and water leakage. The plaintiff entered into negotiations with the developer and remedial work was attempted, but ultimately proved unsuccessful and these defects led to the institution of the proceedings before us, which were commenced on the 20th December, 2007. The proceedings were served on the appellant on the 15th October, 2008. In those proceedings the plaintiff placed reliance on a certificate of compliance issued by the seventh named defendant in 2000.

3 The statement of claim was delivered to the appellant on the 23rd May, 2014.

4 On the 29th May, 2014, the appellant's solicitors wrote making certain complaints about that statement of claim and pointing out certain matters which they believed to be of relevance to the alleged liability of their client.

5 On the 11th February, 2015, the appellant issued the present motion and the following day delivered his defence without prejudice to the motion.

6 The issues that arise in this appeal are the same ones as those faced by the trial judge namely:-

1. Is the plaintiff guilty of inordinate delay?

2. If she is so guilty is this delay excusable?

3. If the delay is inordinate and inexcusable does the balance of justice favour the plaintiff or the appellant?

7 The trial judge found that there was inordinate delay which was not entirely excusable and went on to hold that the balance of justice favoured the plaintiff and in so doing dismissed the appellant's motion. I agree with the trial judge's finding that the plaintiff was guilty of inordinate delay and I also hold that that delay was inexcusable. However I hold that the balance of justice favours the appellant for the reasons set out hereunder and accordingly I allow the appeal and direct that the proceedings against the appellant be struck out.

8 Evidence on the motion was given solely on affidavit. The appellant provided two affidavits and exhibited documents and the plaintiff's solicitor provided the replying affidavit which also exhibited relevant documentation.

9 The plaintiff is the owner of a single story apartment within a development known as the Ramparts, Loughlinstown, Co. Dublin. The first named defendant is the developer. The second named defendant was the main contractor. The fourth, fifth and sixth named defendants acted as architects and lead consultants on the project. The seventh named defendant (the appellant herein) was retained by the developer to act as structural and civil engineer on the project.

10 Sometime in 2002, the plaintiff purchased an apartment in this development and shortly thereafter observed leakage of water through the windows of her apartment. Over time there was evidence of significant water ingress and internal cracking of block work. The following dates are of significance when considering the positions of the plaintiff and the appellant.

2000: On the 14th November, 2000 the appellant issued Arborlane with a certificate of compliance of the structural design with the requirements of Part A of the Building Regulations 1997.

2002: The plaintiff purchases her apartment. Defects emerged shortly thereafter.

2007: The plaintiff's solicitor puts the appellant on notice of proceedings in October and sends him an ?O'Byrne? letter on the 17th December, 2007. On the 20th December, 2007, the plaintiff issues proceeding.

2008: On the 15th October, 2008, the proceedings were served on the appellant who filed a notice of appearance on the 4th November, 2008, and called for a statement of claim.

2010: In May 2010, a notice of intention to proceed was filed but not served on the appellant's solicitor.

2011: On the 24th June, 2011, the plaintiff's solicitors wrote to the appellant's solicitors threatening a motion for judgment in default of defence which was issued on the 11th August, 2011, but subsequently struck out when the appellant's solicitors pointed out that no statement of claim had yet been delivered.

2012: On the 10th February, 2012, the plaintiff's solicitors notified the appellant's solicitors that they were in the process of finalising the statement of claim which they said then would be delivered shortly. On the 25th May, 2012, the appellant's solicitors called on the plaintiff to discontinue the proceedings. This letter asserted that none of the expert reports furnished supported any claim against the appellant. There was no reply to this letter.

2013: On the 17th June, 2013, the appellant's solicitor requested the plaintiff to discontinue the proceedings against the appellant noting that a statement of claim had not yet been served and threatening a motion to strike out for want of prosecution. On the 2nd July, 2013, the plaintiff's solicitors replied that they were in the process of preparing a detailed statement of claim and that they would not discontinue the proceedings.

2014: The statement of claim was delivered on the 23rd May, 2014.

On the 29th May, 2014, the appellant's solicitors wrote making certain complaints about the statement of claim and pointing out certain matters that they believed to be...