Gibbons v N6 (Construction) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 16 May 2022
• Neutral Citation: [2022] IECA 112
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/100

Between

Eddie Gibbons

Plaintiff/Appellant

and

N6 (Construction) Limited

First Named Defendant/Respondent

and

Galway County Council

Second Named Defendant

[2022] IECA 112

Faherty J.

Ní Raifeartaigh J.

Barniville J.

Appeal Number: 2021/100

THE COURT OF APPEAL

CIVIL

Inordinate and inexcusable delay – Strike out – Balance of justice – Appellant appealing from the order that his claim against the respondent be struck out on the grounds of inordinate and inexcusable delay – Whether the balance of justice favoured the striking out or dismissal of the appellant’s claim against the respondent

Facts: The plaintiff/appellant, Mr Gibbons, was the owner of a property in which he resided near Athenry, County Galway. He claimed that during the construction of the M6 Ballinasloe to Galway motorway and associated works by the first defendant/respondent, N6 (Construction) Ltd (N6), and the second defendant, Galway County Council, the pre-existing groundwater and surface water regime was altered leading to flooding of the plaintiff’s property whenever there is heavy rain. The plaintiff alleged that N6 and the Council, or either of them, were negligent, in breach of duty, in breach of statutory duty and guilty of nuisance in or about the construction, management and maintenance of the M6 motorway and associated works. The plaintiff appealed to the Court of Appeal from the judgment of the High Court (Butler J) delivered on 1 March 2021 and from the order made by the High Court on 24 May 2021 on foot of that judgment in which it was ordered that the plaintiff’s claim against N6 be struck out pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay on the part of the plaintiff in the prosecution of his claim against N6. The central point in the plaintiff’s appeal was that the High Court erred in concluding that the balance of justice favoured the striking out or dismissal of the plaintiff’s claim against N6.

Held by Barniville J that the judge applied the correct test, namely, that contained in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 as subsequently considered by the Court of Appeal in cases such as Cassidy v The Provincialate [2015] IECA 74 and McNamee v Boyce [2016] IECA 19, was right to conclude that the plaintiff was responsible for inordinate and inexcusable delay in the prosecution of his claim against N6, was right to conclude that there was no material culpable delay on the part of N6, identified several factors relevant to the question of prejudice and correctly concluded that, by reason of the prejudice suffered by N6 as a result of the plaintiff’s delay in the conduct of his case against N6, the balance of justice lay in favour of dismissing the plaintiff’s case against that defendant.

Barniville J dismissed the appeal and affirmed the order of the High Court. As the plaintiff had been unsuccessful in his appeal, it seemed to the Court that he should be ordered to pay N6’s costs of the appeal, such costs to be adjudicated upon in default of agreement. The Court made an indicative order for costs in those terms.

Appeal dismissed.

JUDGMENT of Mr. Justice David Barniville delivered on the 16th day of May 2022

Index

1. Introduction	2
2. The Plaintiff's Claim	3
3. Chronology of Relevant Events	4
4. N6's Application to Dismiss	10
5. The High Court Judgment	11
6. The Appeal	16
(a) The Plaintiff's Position	16
(b) N6's Position	20
7. Assessment and Decision	22
(a) Approach of this Court on Appeal	22
(b) Relevant Legal Principles	23
(c) Decision on Plaintiff's Appeal	31
(i) Inordinate and Inexcusable Delay	31
(ii) Balance of Justice	32
8. Conclusion	37

1. Introduction

1 . This is an appeal by the plaintiff/appellant (the “plaintiff”) from the judgment of Butler J. in the High Court delivered on 1 March 2021 and from the order made by the High Court on 24 May 2021 on foot of that judgment in which it was ordered that the plaintiff's claim against the first named defendant/respondent, N6 (Construction) Limited (“N6”) be struck out pursuant to the inherent jurisdiction of the court on the grounds of inordinate and inexcusable delay on the part of the plaintiff in the prosecution of his claim against N6.

2 . It was conceded in the High Court that the plaintiff was responsible for a period of inordinate and inexcusable delay of over five and a half years in the prosecution of his claim against N6. The High Court concluded that the delay for which the plaintiff was responsible was more in the order of seven or eight years. Having so concluded, the High Court went on to find that the balance of justice lay in favour of striking out his claim against N6 rather than permitting the case to proceed. The High Court proceeded, therefore, to strike out the plaintiff's claim against N6 under its inherent jurisdiction. While nothing turns on it, it seems to me that the more appropriate order for N6 to have sought, and for the High Court to have granted, was an order dismissing the plaintiff's claim against N6 under its inherent jurisdiction rather than striking out that claim.

3 . The plaintiff has appealed from the judgment and order of the High Court. Before this court, it was again conceded that there was inordinate and inexcusable delay on the part of the plaintiff and the prosecution of his claim against N6. The extent of the delay which was considered to be inordinate and inexcusable was not entirely clear but the concession appeared to go further than that made in the High Court and appeared to amount to a concession of inordinate and inexcusable delay of the magnitude found by the High Court. The central point in the plaintiff's appeal was that the High Court erred in concluding that the balance of justice favoured the striking out or dismissal of the plaintiff's claim against N6. The appeal, therefore, requires the court to consider again the application of the well-established principles governing the dismissal of a claim for want of prosecution under the inherent jurisdiction of the court in accordance with the principles set out by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 (“ Primor”).

4 . It is important to stress that, while there are two defendants in the proceedings, N6 and Galway County Council (the “Council”), the only application to dismiss was brought by N6. No application was brought by the Council. While the High Court found it necessary to refer to the progress, or lack of progress, by the plaintiff of his claim against the Council, as do I, the High Court was rightly cautious in how it dealt with the conduct of the plaintiff's claim against the Council in circumstances where the Council was not a party to the application brought by N6 and had not brought its own application. The findings and conclusions expressed in this judgment relate to the plaintiff's claim against N6 only and not to his claim against the Council. It is a matter for the Council to decide whether to bring its own application and for the High Court to determine that application on the basis of the facts relevant to the plaintiff's claim against it.

2. The Plaintiff's Claim

5 . Before turning to the chronology of relevant events in the proceedings, I should briefly describe the nature of the plaintiff's claim against N6 and the Council.

6 . The plaintiff is the owner of a property in which he resides near Athenry, County Galway and which he purchased in 1994. He claims that during the construction of the M6 Ballinasloe to Galway motorway and associated works by N6 and the Council, the pre-existing groundwater and surface water regime was altered leading to flooding of the plaintiff's property whenever there is heavy rain. The flooding is alleged first to have occurred in November 2009 and has continued to occur whenever there is heavy rain. It is claimed that the plaintiff was forced to move into alternative accommodation for about twelve months between October 2011 and October 2012.

7 . N6 is a joint venture company incorporated in the State involving a Spanish registered multi-national infrastructure company (as its main shareholder) and a national contractor. It was incorporated specifically for the purpose of constructing the M6 motorway. The motorway works were started in 2006 and were completed in 2009. It is alleged that N6 and the Council are responsible for the alterations in the groundwater and surface water regime which caused the flooding. The plaintiff alleges that N6 and the Council, or either of them, were negligent, in breach of duty, in breach of statutory duty and guilty of nuisance in or about the construction, management and maintenance of the M6 motorway and associated works. Among the particulars of wrongdoing alleged against N6 and the Council in the statement of claim are that N6 and the Council carried out construction and associated works in a manner which altered the existing groundwater and surface water regime in the vicinity of the plaintiff's property, allowed water to flow into an existing French drain which was not appropriate for the amount of water flowing into it, failed to carry out suitable tests and a proper assessment of the drainage system associated with the works, failed to carry out any adequate pre-construction assessment of the effects of the works on the existing groundwater regime and creating or maintaining a public nuisance. The plaintiff's case was described by his counsel in the course of the appeal as being a simple one which the plaintiff can establish on the basis of expert evidence in the form of an expert engineer's report which was provided at an early stage by way of replies to particulars by N6.

8 . N6 has delivered a defence denying liability and pleading contributory...