Moloney & Moloney (plaintiffs) v Lacey Building & Civil Engineering Ltd & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 January 2010
• Neutral Citation: [2010] IEHC 8
• Court: High Court
• Date: 21 January 2010

Moloney v Lacey Building & Civil Engineering Ltd & Ors

EDMOND MOLONEY AND JACQUELINE MOLONEY

PLAINTIFFS

AND

LACEY BUILDING AND CIVIL ENGINEERING LIMITED AND KENNETH MEEHAN AND J.W. LEVINS PRACTISING AS MEEHAN LEVINS PARTNERSHIP (A FIRM) AND MEEHAN LEVINS PARTNERSHIP LIMITED

DEFENDANT

[2010] IEHC 8

[No. 313 P/2004]

THE HIGH COURT

PRACTICE AND PROCEDURE

Summary summons

Renewal - Set aside - Application to set aside renewal - Failure to serve summons while in force - Order for renewal made by High Court -Test applicable to application to renew summons - Good reason - Balance of justice - Balance of hardship - Absence of expert report - Statute of Limitations - Prejudice -Whether plaintiff advanced good reason to renew summons - Whether absence of expert report constituted good reason to renew summons - Whether stricter approach to delay applicable to renewal of summons - Whether prevention of defendant availing of statute of limitations constituted good reason to renew summons - Chambers v Kenefick [2005] IEHC 402, [2007] 3 IR 526 and Roche v Clayton [1998] 1 IR 596 applied; Bingham v Crowley [2008] IEHC 453, (Unrep, Feeney J, 17/12/2008), Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Stephens v Paul Flynn Ltd. [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005); [2008] IESC 4, [2008] 4 IR 31, Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd [2006] IEHC 215, [2009] 4 IR 438 and Baulk v Irish National Insurance Company Ltd [1969] IR 66 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 8, rr 1 and 2 - Renewal set aside (2004/313P - Clarke J - 21/1/2010) [2010] IEHC 8

Moloney v Lacey Building and Civil Engineering Ltd

Facts: An application was made to set aside a renewal of a plenary summons pursuant to Order 8 Rules of the Superior Courts for a period of six months from the date of the order. The plenary summons was issued originally on 9th January 2004 and on 11th May 2009, the High Court renewed the summons. The application was made fifteen months after the proceedings would have been statute-barred. The second, third and fourth named defendants ("the architects") sought to have the order set aside. The second and third defendants were founding members of a partnership engaged by the plaintiff to design a dwelling. The partnership incorporated as a limited liability company in 1999 as the fourth named defendants. The contract for design was terminated in 2002 on the grounds of purported defects in the construction of the property. A plenary summons was issued by the plaintiffs in 2004 and to date no statement of claim was issued. The architects alleged that the plenary summons was issued five years and four months before its renewal was sought, that there was no good reason to renew the summons, that memories were fading and that they were still unaware of the precise allegations against them.

Held by Clarke J. That the Court was not satisfied that the Architects knew or ought to have known about the allegations against it. A good reason was not established for the renewal of the summons. There was potentially an issue of apportioning fault as between the contractor and the architects and the ability to deal with detail would be material in such a case. There was a real risk of prejudice. The long delay after the issue of the plenary summons and before renewal was excessive. There was delay also from the time when the statue of limitation expired, giving rise to a risk of prejudice. There was no good reason to renew the summons.

Reporter: E.F.

RSC O.8

RSC O.8 r2

BEHAN v GOVERNOR & CO OF BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

CHAMBERS v KENEFICK 2007 3 IR 526 2005 IEHC 402

BINGHAM v CROWLEY & ORS UNREP FEENEY 17.12.2008 2008/3/562 2008 IEHC 453

GREENE v TRIANGLE DEVELOPMENTS LTD & WADDING UNREP CLARKE 4.3.2008 2008/27/5935 2008 IEHC 52

CREEVY v BARRY-KINSELLA & ORS UNREP DUNNE 17.4.2008 2008/9/1750 2008 IEHC 100

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

ALLERGAN PHARMACEUTICALS (IRL) LTD v NOEL DUNNE ROOFING & CLADDING LTD & ORS UNREP O'SULLIVAN 6.7.2006 2006/2/371 2006 IEHC 215

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

ROCHE v CLAYTON & ORS (T/A MJ HOGAN & SONS SOLICITORS) 1998 1 IR 596 1998/37/13875 1999/22/7198

MCCOOEY v MIN FOR FINANCE 1971 IR 159

O'BRIEN v FAHY (T/A GREENHILLS RIDING SCHOOL) UNREP BARRINGTON 21.3.1997 1997/11/3442

BAULK v IRISH NATIONAL INSURANCE CO LTD 1969 IR 66

1. Introduction

2 1.1 This is an application under O. 8 of the Rules of the Superior Courts to set aside an order made by Peart J. renewing the plenary summons in these proceedings for a period of six months from the date of the order concerned.

3 1.2 The plenary summons was issued originally on 9 ^th January, 2004. On 11 ^th May, 2009, Peart J. made the relevant order renewing the summons for a six month period from that date. The second, third and fourth named defendants now seek to have the order of Peart J. set aside. I turn first to the relevant facts and procedural history.

2. Facts and Procedural History

2 2.1 The second and third named defendants are founding members of the firm know as Meehan Levins Partnership. That firm was initially engaged by the plaintiffs ("the Moloneys") in 1996 to design a dwelling house at Tara Hill, Gorey, County Wexford ("the property"). The Moloneys also appointed the first named defendants, Lacey Building and Civil Engineering Limited ("the Contractor") to construct the property. In March, 1999 the Meehan Levins Partnership incorporated as a limited liability company in the form of the fourth named defendant, Meehan Levins Partnership Limited, (together with the second and third named defendants, "the Architects").

3 2.2 On 28 ^th February, 2002, the Moloneys terminated the relevant retainer with the Architects and the Contractor by letter ("the termination letter"). The reasons for the termination were stated as being purported defects in the construction of the property and the timeliness and the quality of the Contractors' workmanship. So far as the Architects are concerned, complaint was made as to the supervision of the works by the Architects. In addition, complaint was made that architects' certificates were furnished in circumstances where it was alleged that it was clear that the Contractor had not properly carried out the works. By a separate letter of the 28 ^th February, 2002, the Moloneys also terminated their agreement with the Contractor. Apart from a letter of the 14 ^th March, 2002, from the Meehan Levins Partnership asserting that any problems were the responsibility of the Contractor nothing happened for over a year until, in the context of indicating that proceedings were being finalised, a suggestion concerning an inspection was raised on behalf of the Moloneys. A number of further items of correspondence passed on which nothing much turns, but by letter of the 22 ^nd July, 2004, a more detailed complaint was made by solicitors acting on behalf of the Moloneys specifying what were said to be defects in the construction drawings and specifications and again threatening proceedings. At this stage solicitors were instructed on behalf of the Architects and an expert, Mr. Brian O'Connell, was nominated to conduct an inspection which appears to have taken place as a joint inspection on the 14 ^th October, 2004. Nothing much again appears to have happened until 2006 when there is a further exchange of correspondence, some of which it will be necessary to refer to in more detail subsequently.

4 2.3 In the meantime, a plenary summons issued on the 9 ^th January, 2004. Save for some mention in the 2006 correspondence to which I have just referred, no intimation of the existence of such proceedings was given on behalf of the Moloneys to the Architects. As is clear the summons was not, in fact, served either within the six month period required by the Rules or for a period of over five years thereafter prior to the application to Peart J. to renew the summons.

5 2.4 The reason given for the failure to serve the plenary summons within the time prescribed by the Rules of the Superior Courts was that the solicitor for the Moloneys was said to be awaiting a report from an expert to advise on the issue of liability and intended to serve a statement of claim at the same time as the summons. It is asserted by the Architects that this does not constitute a good reason for the failure to serve the plenary summons in a timely fashion.

6 2.5 To date, no statement of claim has been provided. The report of the relevant expert, Mr. Brendan McGing, structural surveyor, was issued in 2006. It was Mr. McGing's opinion that the property might have to be demolished in order to rectify problems which he identified. That report was delivered to the solicitors for the Architects on 12 ^th May, 2008, with a letter setting out that the solicitors for the Moloneys had been instructed to go ahead with the proceedings against the defendants. It also appears that certain further expert reports may have been recommended or sought at different times.

7 2.6 An application was made, in the ordinary way, ex parte to Peart J. on the 11 ^th May, 2009, for an order renewing the plenary summons. Without reaching a definitive conclusion as to the precise date on which any cause of action, which the Moloneys may have had, originally accrued, it seems unlikely that any such cause of action could have post-dated the termination of the Architects retainer on the 28 ^th February, 2002. On that basis, it seems almost certain that any proceedings of the type contemplated in this case would have become statute barred in February, 2008. The application to Peart J. was, in that context,...