Hegarty v D & S Flanagan Brothers Ballymore Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 31 May 2013 |
| Neutral Citation | [2013] IEHC 263 |
| Court | High Court |
| Date | 31 May 2013 |
[2013] IEHC 263
THE HIGH COURT
AND
RSC O.15 r14
RSC O.19 r28
RSC O.63 r9
BUILDING REGS 1997 SI 497/1997
HYNES v WESTERN HEALTH BOARD & CRONIN UNREP CLARKE 8.3.2006 2006/29/6275 2006 IEHC 55
O'CONNELL v BUILDING & ALLIED TRADES UNION & ORS 2012 2 IR 371 2012 IESC 36
O'DONNELL v KILSARAN CONCRETE LTD & TOM CURRID CONSTRUCTION LTD 2001 4 IR 183 2002 1 ILRM 551 2001/19/5270
MURPHY v MCINERNEY CONSTRUCTION LTD & GRIFFIN UNREP DUNNE 22.10.2008 2008/44/9514 2008 IEHC 323
IRISH EQUINE FOUNDATION LTD v ROBINSON & ORS 1999 2 IR 442 1999 2 ILRM 289 2000/11/4112
HEGARTY v O'LOUGHRAN & EDWARDS 1990 1 IR 148 1990 ILRM 403
High court – Litigation - Building contract - Defective foundations – Engineer certificate - Negligence - Statute of Limitations - Statute barred – Rules of the Superior Courts
Facts: The third named defendant brought an application for proceedings brought against him by the plaintiff to be struck out pursuant to O. 15, r. 14 of the Rules of the Superior Courts (the ‘Rules) on the basis that the claim was statute barred. Alternatively, he argued the claim against him should be struck out pursuant to O.19, r. 28 of the Rules or the inherent jurisdiction of the court on the basis that no reasonable cause of action had been disclosed. Alternatively, an order pursuant to O. 63, r. 9 of the Rules was sought to set aside the order of the Master of the High Court of the 20th June 2012 which joined the third defendant to proceedings.
The plaintiff”s claim related to a building contract for a dwelling house she had entered into with the first defendant on the 2 nd November 1999. She had previously instructed the third defendant as engineer for the development and on the 29th September 2009, he had issued a Foundation Inspection Certificate in respect of the property with a certificate of compliance with the planning permission following on the 7th June 2000. However, the plaintiff noticed cracks on the walls of the property in December 2001/January 2002 and was later advised that the foundation was placed on unsuitable ground with the roof inadequately supported. Proceedings were initiated against the first defendant in May 2007. The third defendant was joined as a co-defendant by the order of the Master of the High Court of the 20th June 2012, some 13 years after he had been initially instructed.
It was the plaintiff”s claim that the third defendant”s application should be rejected because the period of limitation did not begin until she was made aware of the existence of the foundation certificate. She claimed this had occurred on 24 th January 2012 as a result of the discovery of documents. The third defendant argued that time should properly be seen to have commenced when damage in the property became visible to the plaintiff.
Held by Birmingham J that a party may still be joined as a defendant in circumstances where there are questions whether the matter is out of time or not. However, where a claim is clearly and manifestly statute barred, it was held that a defendant should not be joined to proceedings as long as it is clear that he intends to rely upon the relevant statute.
On consideration of the relevant case law, notably Hegarty v. O”Loughran [1990] 1 I.R. 148, it was held that the 6 year time limit on negligence actions commence on the date that damage manifests itself, not the date it is discovered. As a result, the third defendant”s assertion that the time limit began in January 2002 at the latest was correct, and this time limit would then have expired in January 2008. On that basis, it was held that joining the third defendant to proceedings in June 2012 was manifestly statute barred, and with nothing presented to show why he should be debarred from relying on the time limit of the statute, his application was accepted pursuant to O. 15, r. 14 of the Rules.
Motion to strike out proceedings granted.
1. Before the court is an application brought by the third named defendant which seeks to have him struck out as a defendant in the proceedings pursuant to O. 15, r. 14 of the Rules of the Superior Courts or in the alternative for an order pursuant to 0. 19, r. 28 of the rules of the Superior Courts striking out the proceedings as against him on the grounds that they disclose no reasonable cause of action and are frivolous and vexatious, or pursuant to the inherent jurisdiction of the court. Alternatively, an order is sought pursuant to O. 63, r. 9 of the rules setting aside the order of the Master of the High Court of the 20 th June, 2012 joining the third named defendant as a party to the proceedings.
2. The background to the present application is that the plaintiff alleges that on or about the 2 nd November, 1999 she entered into a building contract with the first named defendant which would see it construct a dwelling at 22 Hyde Court, Roscommon. The third named defendant, an engineer, was instructed in relation to the proposed development. It appears the instructions came from a company called Shellac Limited. Mr. Sean Flanagan who might be described as the principal of the first named defendant is also the principal of Shellac Limited. It appears that on 29 th September, 1999 the third named defendant issued a Foundation Inspection Certificate in respect of the property and that on the 7 th June, 2000 he issued a certificate of compliance with the planning permission.
3. The plaintiff took up residence in April, 2001 and in December of that year or January, 2002 she noticed cracks on the walls of the property but her initial assumption was that these were settlement cracks.
4. By reference to the pleadings it seems that the plaintiff has now been advised that there are significant defects in the property and specifically has been advised that the foundation was placed on unsuitable ground and the roof structure was insufficiently supported. An Equity Civil Bill was served upon the first named defendant in May, 2007. By order of the Roscommon County Registrar the second named defendant was added as a co-defendant in April, 2009 and was served with an Amended Equity Civil Bill. In December, 2010 the proceedings were transferred to the High Court by order of the Country Registrar. An order of the Master of the High Court on 4 th March, 2011 adopted the proceedings as if the action had commenced in the High Court by Plenary Summons. By order of the Master of the High Court on the 20 th June, 2012 the third named defendant was joined to the proceedings as a co-defendant. In the course of an affidavit sworn by way of response to the motion now before the court, the plaintiff contends that she was unaware that the third named defendant had certified the foundations of the property until the foundation certificate was...
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