Kilroy -v- Glenford Builders Ltd & ors; Gray -v- Glenford Builders Ltd & ors, [2018] IEHC 432 (2018)

Docket Number:2009 2999 P; 2011 10401 P
Party Name:Kilroy, Glenford Builders Ltd & ors; Gray -v- Glenford Builders Ltd & ors
 
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THE HIGH COURT [2009 No. 2999 P.]

BETWEEN

LYNETTE KILROYPLAINTIFFAND

GLENFORD BUILDERS LIMITED,

EAMONN HASSETT AND COMPANY LIMITED

(IN VOLUNTARY LIQUIDATION), BURROUGHS DESIGN

PARNERNERSHIP (IRELAND) LIMITED TRADING AS

BURROUGHS, AND FRANK ELMES AND CHARLES D. ELMES

TRADINGS AS FRANK ELMES ARCHITECTSDEFENDANTSAND

THE HIGH COURT[2011 No. 10401 P.]

BETWEEN

PAUL GRAYPLAINTIFFAND

GLENFORD BUILDERS LIMITED, EAMONN HASSETT

AND COMPANY LIMITED (IN VOLUNTARY LIQUIDATION),

BURROUGHS DESIGN PARTNERSHIP (IRELAND) LIMITED

TRADINGS AS BURROUGHS, AND FRANK ELMES AND CHARLES

D. ELMES TRADING AS FRANK ELMES ARCHITECTS DEFENDANTS

JUDGMENT of Ms. Justice Faherty delivered on the 11th day of July, 2018

  1. These matters come before the Court by way of the applications, respectively, of the third defendant, and the fourth and fifth defendants, to dismiss the plaintiffs’ claims for want of prosecution and/or for inordinate, inexcusable and prejudicial delay.

  2. For the purpose of the within judgment the proceedings bearing record no. 2009/2999 P will be referred to as “the Kilroy proceedings”, and the plaintiff therein referred to as the first plaintiff, and the proceedings bearing record no. 2011/10401 P will be referred to as “the Gray proceedings” and the plaintiff therein referred to as the second plaintiff.

    The Kilroy proceedings

  3. The Kilroy proceedings concern an apartment known as No. 6, the Cedar, Cruagh Wood, Stepaside, County Dublin which is one of approximately 132 units constructed as a residential development at that location. The first plaintiff purchased the apartment in or about December 2005 and went into occupation thereafter. She alleges that there are various defects in her apartment and consequential dampness, condensation and mould growth. It is alleged that the property was inadequately insulated and/or that the flooring of the property did not have a proper damp proof membrane. The plaintiff claims damages for alleged personal injuries in the form of asthma and sinusitis as a result of the alleged defects and also claims special damages for remedial works.

  4. The first defendant was a building contractor which entered into a building contract with the first plaintiff dated 3rd June, 2005. It ceased trading and was dissolved with effect from 20th January, 2016. The solicitors for the first defendant came off record on 24th October, 2011. The second defendant appears to have been a contractor engaged by the first defendant and is in voluntary liquidation. The third defendant is a firm of engineers. The fourth and fifth defendants were architects involved in the building project. The fifth defendant is since deceased. Accordingly, reference hereafter will largely be to the fourth defendant.

  5. The first plaintiff claims that the third defendant were the engineers responsible for the structural engineering of the apartment complex and who had oversight of the building project. She claims that the fourth defendant was also engaged in both a primary and a supervisory capacity as the retained architects for the building project.

  6. The first plaintiff commenced her proceedings against the first defendant by way of a personal injuries summons which issued on 31st March, 2009.

  7. By Order of the High Court (Charleton J.) made 13th July, 2010, the second, third, fourth and fifth defendants were joined as defendants.

  8. On 22nd August, 2010 the first plaintiff issued her amended personal injuries summons whereby she claims that she suffered personal injuries, loss, damage, inconvenience and expense as a result of, inter alia, the negligence and breach of duty including breach of statutory duty, nuisance, breach of contract and misrepresentation and/or negligent misstatement of the defendants, their respective servants or agents.

  9. The amended personal injuries summons was served on the third defendant on 4th November, 2010. An appearance was filed on 11th November, 2010. The third defendant raised a notice for particulars on 27th January, 2011 and replies were received on 29th June, 2011. On 8th September, 2011, a notice seeking further and better particulars was served by the third defendant and on 15th September, 2011 it delivered its defence. On 3rd February, 2012, a notice of indemnity and/or contribution was served on the fourth and fifth defendants by the third defendant. On 6th March, 2012, the first plaintiff sought voluntary discovery from the third defendant. The first plaintiff replied to the request for further and better particulars on 16th July, 2012.

  10. The fourth and fifth defendants entered an appearance to the amended personal injuries summons on 13th January, 2011 and raised a notice for particulars on 24th February, 2011. On 29th June, 2011, the first plaintiff replied to the notice for particulars. On 6th March, 2012, the plaintiff requested that the fourth and fifth defendants make voluntary discovery. The fourth and fifth defendants’ personal injuries defence was delivered on 13th July, 2012. On the same date they wrote to the plaintiff’s solicitors in respect of the plaintiff’s request for voluntary discovery.

  11. On 10th October, 2013, the fourth and fifth defendants served the third defendant with a notice of indemnity and/or contribution.

  12. The fourth and fifth defendants’ letter to the first plaintiff in response to the latter’s request for voluntary discovery was not replied to until 14th February, 2014 when an amended request for voluntary discovery was made. On 8th September, 2014, the fourth and fifth defendants requested that the first plaintiff confirm the extent of her alleged claim and/or to discontinue the proceedings.

  13. On 16th July, 2015, the first plaintiff issued a notice of intention to proceed.

  14. The fourth and fifth defendants’ motion to dismiss the first plaintiff’s claim for want of prosecution and/or on the grounds of delay was filed on 23rd June, 2016. The third defendant’s motion to dismiss issued on 14th July, 2016.

  15. The third and fourth defendants maintain that the first plaintiff has failed to take any step in her proceedings since in or about 2012.

  16. As between the third defendant and the first plaintiff, some seven affidavits have been sworn, four by Mr. Alistair Burroughs, Managing Director of the third named defendant and three by the first plaintiff.

  17. In his grounding affidavit, Mr. Burroughs takes issue with the generic manner in which the first plaintiff’s pleadings are couched. He avers that the criticisms levelled against the third defendant do not appear to be directed to the structural issues for which the third defendant was retained in the development project. He avers that the tenor of the first plaintiff’s complaint is a failure to insulate the premises which, he states, was a matter for the architects and/or the appointed mechanical and electrical engineers’ remit. He avers that “[i]nsulation is not a structural issue relating to the stability, stiffness, robustness and durability of the basic structure for which a Civil and Structural Consulting Engineer such as the Third Named Defendant would normally be responsible.” He avers that insofar as a claim for misrepresentation has been made, the plaintiff has neither particularised nor withdrawn it and has simply attempted to respond generically so that the nature of the misrepresentation alleged against either the third and/or the fourth defendants remains “completely opaque”. He avers that the first plaintiff has provided “almost no sensible information relating to the issues alleged against the Third Named Defendant” and that no effort has been made to clearly explain the actual nature of the defect or why it would conceivably be the responsibility of the third defendant.

  18. He further avers that no useful step has been taken by the first plaintiff since the service of the notice of intention to proceed and notes that the service of that document was precipitated by correspondence from the third defendant’s solicitors.

  19. Mr. Burroughs further refers to another seven set of proceedings (which include the second plaintiff’s proceedings) which were issued and served on the behalf of other clients of the first plaintiff’s solicitors who have apartments in the same complex.

  20. Mr. Burroughs highlights correspondence which passed between the first plaintiff and the third defendant. On 21st August, 2015, the third defendant’s solicitors wrote requesting, inter alia, that the plaintiff might provide copies of any expert report procured by her. No response was received. On 13th January, 2016, the third defendant’s solicitors again wrote making complaint about the absence of a response and requesting that the first plaintiff serve a notice of discontinuance, failing which a motion to dismiss would be brought. This and a further letter dated 29th January, 2016 failed to elicit a response. The third defendant sent a further letter on 17th February, 2016, advising that an application would be made to strike out the first plaintiff’s proceedings. This precipitated a response dated 24th February, 2016 from the first plaintiff’s solicitors which advised that they were instructed to proceed with the matter by way of issuing a motion for discovery in the Kilroy proceedings and by way of delivering statements of claim in the other cases.

  21. No motion for discovery was in fact brought and no statements of claim delivered in the other cases. The Court has been advised that since the issue of the within motions, all of these proceedings, save those of the first and second plaintiffs have been discontinued.

  22. As a basis for the claim that the first plaintiff’s delay is inordinate and inexcusable, Mr. Burroughs points to the fact that the plaintiff’s proceedings did not issue until 31st March, 2009, some three years and five months post completion of the development, and some considerable time after the plaintiff first complained about dampness, and almost a year after mould growth was allegedly detected in the...

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