Hughes v Moy Contractors Ltd
| Jurisdiction | Ireland |
| Judge | MISS JUSTICE MELLA CARROLL |
| Judgment Date | 29 July 1999 |
| Neutral Citation | [1999] IEHC 244 |
| Court | High Court |
| Date | 29 July 1999 |
[1999] IEHC 244
THE HIGH COURT
BETWEEN
AND
Citations:
PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459
HOGAN V JONES 1994 1 ILRM 512
CELTIC CERAMICS LTD V IDA UNREP SUPREME 4.2.1993 1998/3/656
Synopsis
Practice and Procedure
Practice and procedure; application to dismiss plaintiff's claim for want of prosecution; delay of nine years between cause of action and delivery of statement of claim; whether defendants have discharged onus of establishing inordinate and inexcusable delay; whether the case should proceed having regard to the balance of justice.
Held: Order granted.
Hughes v. Moy Contractors Ltd - High Court: Carroll J. (ex tempore) - 29/07/1999
Synopsis:
Practice and Procedure
Practice and procedure; delay; delay of five years between the service of summons and delivery of the statement of claim; two witnesses had died; action against the second and third named defendants had already been struck out on grounds of inordinate and inexcusable delay; defendant seeking order dismissing the plaintiff's claim for want of prosecution; whether there was inordinate and inexcusable delay on the part of the plaintiff; whether being deprived of essential witnesses grossly prejudices the defendant; whether since the second named defendant has been discharged out of the action on grounds of delay it is unjust that the action should be permitted to proceed against the defendant; whether the fact that site meetings are fully documented by minutes provides an answer to the defendant's prejudice.
Held: Relief granted; the loss of essential witnesses grossly prejudices the first named defendant.
Hughes v. Moy Contractors Limited - High Court: Morris P. - 25/1/2000
The plaintiff had been engaged by the first-named defendant to complete demolition works on a manufacturing premises, the property of the second-named defendant. The contract was allegedly entered into in 1988. The plaintiff incurred additional costs which he sought to recover from the defendants. Settlement negotiations having broken down the plaintiff issued a plenary summons in July 1992 seeking, inter alia, damages for breach of contract and damages for services rendered. Various delays occurred in the prosecution of the proceedings. The second and third-named defendants issued notices of motion seeking dismissal of the plaintiff’s action for want of prosecution. Carroll J granted the motion dismissing the plaintiff’s claim against the second and third-named defendants. The delays that had occurred in the prosecution of the case were inordinate and inexcusable. The unavailability of certain witnesses was also prejudicial. The balance of justice favoured the dismissal of the action as against the second and third-named defendants.
DELIVERED EXTEMPORE BY THE HONOURABLE MISS JUSTICE MELLA CARROLL ON 29TH JULY 1999
APPEARANCES
For the Plaintiff:
Oisin Quinn BL
Instructed by
Keans
For the Second Defendant:
Robert Hastings BL
Instructed by
Arthur Cox
For the Third Defendant:
John Gordon SC
David Barniville BL
Instructed by
Orpen Franks
These are two separate Motions brought by the second and third Defendants to dismiss the Plaintiff's claim against them for want of prosecution by reason of inordinate and inexcusable delay on the part of the Plaintiff in commencing and prosecuting these proceedings to trial. Both Motions were heard together.
The Plenary Summons claims against all Defendants damages for breach of contract, damages for work done and services rendered, damages on foot of an account stated and settled, quantum meruit and damages for conversion. The Plenary Summons was issued on 6th July 1992. It was served on the second Defendant in April 1993 and on the third Defendant on 16th March 1993.
A notice of intention to proceed dated 6th March 1995 was served, and a second notice of intention to proceed dated 15th September 1997 was served. The Statement of Claim was delivered on 9th February 1998.
A notice for particulars dated 1st July 1998 was served by the second Defendant and the replies were dated 17th August 1998. A notice for particulars dated 9th October 1998 was served by the third Defendant and the replies were dated 9th November 1998.
The Notice of Motion filed on behalf of the second Defendant is dated 23rd April 1999 and was returnable for the 14th June 1999.
The Notice of Motion filed on behalf of the third Defendant is dated 1st March 1999 and was returnable for the 15th March 1999. A Motion for judgment in default of defence dated 11th January 1999 against the second Defendant was re-entered on the 5th July 1999.
The Plaintiff is a demolition contractor. The first Defendant was the main contractor for works carried out for the second Defendant. The second Defendant is a manufacturing company in the industrial estate at Shannon Airport. The third Defendants were consulting engineers for the works carried out.
The Plaintiff claims there was an oral contract made on 6th July 1988, partly evidenced in writing, to demolish three concrete pits at Shannon. He ran into difficulties because the concrete was thicker than he believed it to be. He incurred additional costs amounting to £77,576.13p, and he blames the Defendants.
The notice for particulars of the second Defendant sought the following information:
(1) With whom was the alleged contract made on 6th July 1988? The reply was: Michael Ledwidge, chief engineer of the third Defendant.
(2) With whom of the second Defendant is it alleged that an agreement was made on 6th July 1988? The reply was: Mr Michael Ledwidge, authorised to enter into contractual arrangements on behalf of the second Defendant.
(3) With whom was it agreed that demolition work was to take place over four weeks from 18th July 1988 to 15th August 1988 based on a five-day week working eight hours a day?
The reply was: Mr M. Ledwidge and Mr P. Quilligan of the third Defendant and Mr M. Barrett and Mr G. Treacy of the first Defendant and Mr P. Cantillon, Quantity Surveyor.
(5) Who agreed the ten particular items in paragraph 7 of the Statement of Claim?
The reply was: Mr Michael Ledwidge of the third Defendant and Mr Andrew Tarbot of the first Defendant.
(6) Who agreed item L in paragraph 7?
The reply was: Mr M. Ledwidge and Mr P. Quilligan of the third Defendant and Mr Andrew Tarbot of the first Defendant.
(7) Who made the alleged representations in paragraph 8, in particular the alleged representations on behalf of the second Defendant?
The reply was: Mr M. Ledwidge and Mr P. Quilligan of the third Defendant and Mr M. Barrett and Mr G. Treacy of the first Defendant and Mr P. Cantillon, Quantity Surveyor.
(8) Who represented that the concrete was 24 inches thick?
The reply was: Mr Michael Ledwidge of the third Defendant.
(10) With reference to the meeting of 4th August 1988 give details of the parties present with whom the alleged agreement was made regarding a continuation of work and an extension of six days?
The reply was: Mr Frank Hughes for the Plaintiff, Mr G. Treacy for the first Defendant, Mr J. Borge and Mr W. Roche for the second Defendant, Mr M. Ledwidge for the third Defendant and Mr Cantiilon, Quantity Surveyor.
(13) With whom was agreement reached in relation to the agreed price in Irish pounds plus builders discount?
The reply was: Mr Michael Ledwidge of the third Defendant.
In the notice for particulars from the third Defendant the following questions are asked in relation to paragraph 8 of the Statement of Claim:
(1) Who made the alleged representation that the concrete was described as set out in drawing No.S168/22 of 19th June 1969?
The reply is: Mr Michael Ledwidge and Mr Sean Quigley.
2 (2b) Who on behalf of the third Defendant is alleged to have been informed of the discrepancies by the Plaintiff?
The reply is: Mr Michael Ledwidge and Mr Sean Quigley.
3 (2e) State whether it is alleged that any representative of the third Defendant attended the site on 4th August 1988?
The reply...
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Killeen v Thornton Waste Disposal Ltd
...sought. 15 11. Notwithstanding this clear cut position the defendant company still sought to rely on Hughes v. Moy Contractors Limited [1999] IEHC 244, in particular on a passage from the last page of that judgment where Carroll J. said:- "While I take the point that other witnesses are ava......