Liam Brandley and Another v Hubert Deane and Another

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date28 November 2014
Neutral Citation[2014] IEHC 610
CourtHigh Court
Date28 November 2014

[2014] IEHC 610

THE HIGH COURT

[No. 10994 P./2010]
Brandley & WJB Developments Ltd v Deane t/a Hubert Deane & Associates & Anor

BETWEEN

LIAM BRANDLEY AND WJB DEVELOPMENTS LIMITED
PLAINTIFFS

AND

HUBERT DEANE T/A HUBERT DEANE AND ASSOCIATES AND JOHN LOHAN T/A JOHN LOHAN GROUND WORKS CONTRACTORS
DEFENDANTS

Negligence – Breach of contract – Statute barred – Defendant seeking an order striking out the plaintiff”s claim – Whether plaintiff”s claim is statute barred

Facts: The plaintiff, Mr Brandley, was the developer of three townhouses at Nos. 1, 2 and 3 Sycamore Crescent, Williamstown, Co. Galway. He engaged the first defendant Mr Deane, a consulting engineer, to supervise and certify the construction works. The second defendant Mr Lohan, was engaged to do works in relation to the foundations of the property. The three houses were developed in 2004. The first defendant wrote to the manager of the Allied Irish Bank”s branch at Castlerea, informing him that he had inspected the development to superstructure complete stage and he formed the opinion that the construction thereof complied substantially with the layout presented to the planning authority and also complied with the new building regulations. He gave the same opinion to roof complete stage of the project. He issued a Certificate of Supervision and a Certificate of Compliance in relation to Nos. 2 and 3 of the development. The property at No. 1 had been sold to Mr Connelly, who discovered defects in the property and instituted proceedings against the plaintiff and the first and second defendants. In 2011, Mr Connelly”s claim succeeded against the defendants and failed against the plaintiff. The first defendant sought from the High Court an order striking out the plaintiffs” claim against it on the basis that his claim as against the first defendant is statute barred. The first defendant submitted that as his last involvement in relation to the properties was the issuance by him of the certificates in September, 2004, any proceedings against him would have become statute barred as and from September, 2010, relying upon Hegarty v D & S Flanagan Brothers Ballymore Ltd and Ors [2013] IEHC 263. The plaintiffs stated that there was a conflict of facts between the plaintiffs and the first defendant in relation to when the damage was actually caused to the plaintiffs” properties. In these circumstances, they submitted that it was not appropriate to determine the matter on affidavit evidence. The plaintiffs argued that their engineering evidence was to the effect that actual damage to the property occurred at a later, unspecified time but within six years of the issuance of the plenary summons. The first defendant also raised the fact that the plaintiffs” claim should be dismissed on grounds of delay in prosecuting the proceedings. The plaintiff suggested that the first defendant should not be allowed to resist judgment on the basis that the liability issues between the plaintiff and the defendants were determined in favour of the present plaintiffs in the proceedings brought by Mr Connelly.

Held by Barr J that where there is a factual dispute between the parties, such as to when the actual damage occurred to the property, such dispute cannot be determined on affidavit evidence. Having considered whether the defendants” objections should be tried as a preliminary issue, Barr J held that as virtually the same evidence would be called on the trial of the preliminary issue as in the main action, it is preferable that the Statute of Limitations plea should be determined at the trial of the substantive action. In the circumstances, Barr J was satisfied that while the action was not prosecuted with great speed, there was not such delay on the part of the plaintiffs such as to disentitle them from bringing the action. Barr J held that the parties in the action were different to the Connelly action, as Mr Connelly had carriage of the proceedings as the plaintiff. Barr J held that it would not be fair to saddle the first defendant with liability due to the fact that the plaintiff in that action did not succeed against Mr Brandley, but did succeed against the defendants. Barr J was satisfied that the issues between the parties were not res judicata.

Barr J held that the first defendant”s application to have the plaintiffs” action dismissed as being statute barred be refused, due to the fact that such issue cannot be determined on the basis of the affidavits before the court. However, Barr J held that the plea could remain as a live issue in the defence of the first defendant.

Application refused.

1

1. In this application, the first named defendant seeks an order dismissing the plaintiffs' case against the first named defendant, same having become statute barred as against the first named defendant.

2

2. The action arises out of the construction of two properties situate at Nos. 2 and 3 Sycamore Crescent, Williamstown, Co. Galway. There was also a third dwelling, No. 1, of which more will be said later in the judgment. The plaintiff was the developer of three townhouses at the said location. He engaged the first named defendant, a consulting engineer, to supervise and certify the construction works. The second named defendant was engaged to do works in relation to the foundations of the property.

3

3. The three houses were developed in early 2004. The raft foundations for the three houses were completed in March 2004. These works were carried out by the second named defendant. The work was inspected by the first named defendant.

4

4. By letter dated 5 th April, 2004, the first named defendant stated as follows to the manager of Allied Irish Bank's branch in Castlerea:-

"I hereby certify that the raft foundation is now complete for the construction of three No. townhouses on the above project."

I have inspected the development at the above location and in my opinion the construction thereof complies substantially with the layout presented to the planning authority and also complies substantially with the new building regulations."

5

5. By letter dated 7 th July, 2004, the first named defendant wrote to the manager of the AIB branch at Castlerea, informing him that he had inspected the development to superstructure complete stage and he formed the opinion that the construction thereof complied substantially with the layout presented to the planning authority and also complied with the new building regulations. By letter dated 23 rd July, 2004, the first named defendant gave the same opinion to roof complete stage of the project.

6

6. On 4 th September, 2004, the first named defendant issued a Certificate of Supervision in relation to Nos. 2 and 3 of the development. At para. 2 of the certificate, the first named defendant stated as follows:-

2

2 "2. That I supervised the erection of the property at the above address including the designing and supervising and the construction of the foundations and I inspected same when opened and poured."

7

7. Also on 4 th September, 2004, the first named defendant issued a Certificate of Compliance in respect of the two properties. He certified that he had made periodic inspections of the relevant works during the course of the construction thereof and in his opinion, the construction of the properties complied substantially with the grant of planning permission and substantially with all building regulations applicable thereto and was structurally sound.

8

8. This represents the last involvement that the first named defendant had in relation to the properties.

9

9. The property at No. 1 Sycamore Crescent had been sold to a Mr. Aiden Connelly. He discovered defects in the property and instituted proceedings against the plaintiff in these proceedings, and against the first and second named defendants. That action was heard over three days on 14 th, 15 th and 16 th November, 2011. The...

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3 cases
  • Brandley v Deane
    • Ireland
    • Supreme Court
    • 15 November 2017
    ...London Borough [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492. Bolger v. O'Brien [1999] 2 I.R. 431. Brandley v. Deane [2014] IEHC 610, (Unreported, High Court, Barr J., 28 November 2014). Brandley v. Deane [2016] IECA 54, (Unreported, Court of Appeal, 2 March 2016). Byrne v. I......
  • Fennell v Minister for Defence
    • Ireland
    • High Court
    • 28 April 2020
    ...that the Court may validly reach a conclusion. In support of this, I refer to Brandley v. Dean T/A Hubert Dean & Associates & Anor. [2014] IEHC 610, where Barr J. stated: - “I am of opinion that where there is a factual dispute between the parties, such as to when the actual damage occurred......
  • Stapleton v St Colman's (Claremorris) Credit Union Ltd
    • Ireland
    • High Court
    • 31 July 2015
    ...court's attention to the relatively recent judgment of Barr J. in Brandley and anor. v. Deane t/a Hubert Deane and Associates & anor. [2014] IEHC 610. That was a case in which the statute of limitations was pleaded but in which there was a factual dispute between the parties as to when the ......

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