MOLONEY v LACY BUILDING and CIVIL ENGINEERING Ltd

• Jurisdiction: Ireland
• Judgment Date: 21 January 2010
• Date: 21 January 2010
• Docket Number: [2004. No. 313
• Court: High Court

[2010] IEHC 8,

High Court

[2004. No. 313 P]

Moloney v. Lacy Building and Civil Engineering Ltd.

Edmond Moloney and Jacqueline Moloney

Plaintiffs

and

Lacey Building and Civil Engineering Ltd., Kenneth Meehan and J.W. Levins practising as Meehan Levins Partnership (a firm)and Meehan Levins Partnership Ltd.

Defendants

Cases mentioned in this report:-

Allergan Pharmaceuticals (Ireland) Ltd. v. Noel Deane Roofing[2006] IEHC 215, [2009] 4 I.R. 438.

Baulk v. Irish National Insurance Co. Ltd. [1969] I.R. 66; (1971) 105 I.L.T.R. 89.

Behan v. Bank of Ireland (Unreported, High Court, Morris J., 14th December, 1995).

Bingham v. Crowley [2008] IEHC 453, (Unreported, High Court, Feeney J., 17th December, 2008).

Chambers v. Kenefick [2005] IEHC 402, [2007] 3 I.R. 526.

Creevy v. Barry-Kinsella [2008] IEHC 100, (Unreported, High Court, Dunne J., 17th April, 2008).

Gilroy v. Flynn [2004] IESC 98, [2005] 1 I.L.R.M. 290.

Greene v. Triangle Developments Ltd. [2008] IEHC 52, (Unreported, High Court, Clarke J., 4th March, 2008).

McCooey v. Minister for Finance [1971] I.R. 159.

O'Brien v. Fahy (Unreported, Supreme Court, 21st March, 1997).

Roche v. Clayton [1998] 1 I.R. 596.

Stephens v. Paul Flynn Ltd. [2005] IEHC 148, (Unreported, High Court, Clarke J., 28th April, 2005); [2008] IESC 4, [2008] 4 I.R. 31.

Practice and procedure - Summons - Renewal - Set aside - Failure to serve - Good reason - Balance of justice - Hardship - Absence of expert report - Statute of Limitations - Prejudice -Whether plaintiff advanced good reason to renew summons - Whether absence of expert report constituting good reason to renew summons - Whether stricter approach to delay applicable - Whether prevention of defendant availing of statute of limitations constituting good reason to renew summons - Rules of the Superior Courts 1986 (S.I. No. 15), O. 8, rr. 1 and 2.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Clarke J., infra.

The proceedings were instituted by plenary summons issued on the 9th January, 2004. By order of the High Court (Peart J.) dated the 11th May, 2009, the summons was renewed for a period of six months. By motion on notice dated the 9th July, 2009, the second and third defendants sought to set aside the order renewing the summons.

The motion was heard by the High Court (Clarke J.) on the 21st December, 2009.

Order 8 of the Rules of the Superior Courts 1986 states, inter alia:-

"1. No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive … and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.

2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order."

The plaintiffs instituted proceedings by plenary summons issued on the 9th January, 2004, against the defendants. The summons expired without being served upon the defendants. By order dated the 11th May, 2009, the High Court (Peart J.) renewed the summons following anex parte application of the plaintiffs. The second and third defendants sought to set aside the order renewing the summons.

Held by the High Court (Clarke J.), in setting aside the renewal of the summons, 1, that, while a defendant could adduce new evidence or information so as to satisfy the court that had the relevant facts been known at the initial application to renew a summons the summons would not have been renewed, it was also open to a defendant to demonstrate that, even on the facts before the judge at the initial application, the renewal should not have been made.

Chambers v. Kenefick [2005] IEHC 402, [2007] 3 I.R. 526 followed.

2. That, in exercising the jurisdiction to renew a plenary summons, the court should first consider whether there was a good reason to renew the summons. Secondly, if satisfied that there was or might be a good reason, the court should consider whether it was in the interests of justice between the parties to renew the summons. Thirdly, in considering the interests of justice, the court should examine the hardship for each of the parties if the renewal was not made.

Chambers v. Kenefick [2005] IEHC 402, [2007] 3 I.R. 526 followed.

3. That the absence of an expert report could be a good reason for not serving a plenary summons but only if the expert report was reasonably necessary in order to justify the decision to responsibly maintain the proceedings and if appropriate expedition was used in attempting to procure the report.

Bingham v. Crowley [2008] IEHC 453, (Unreported, High Court, Feeney J., 17th December, 2008) considered.

4. That the stricter approach taken by the courts in relation to delay in the prosecution of proceedings, which could be identified in the dismissal for want of prosecution jurisprudence, also applied to cases involving an application to renew a summons.

Gilroy v. Flynn [2004] IESC 98, [2005] 1 I.L.R.M. 290, Stephens v. Paul Flynn Ltd. [2005] IEHC 148, (Unreported, High Court, Clarke J., 28th April, 2005); [2008] IESC 4,[2008] 4 I.R. 31 and Allergan Pharmaceuticals (Ireland) Ltd. v. Noel Deane Roofing [2006] IEHC 215, [2009] 4 I.R. 438considered.

5. That in considering an application for renewal of a summons, the court should pay significant attention to the fact that the policy behind the Statute of Limitations was that the defendant be aware in a formal sense that proceedings have been commenced, either within the statutory period or within a short time thereafter, and accordingly, the court should have regard to any real risk of prejudice.

6. That the good reason to renew a summons must be more than a simple need to avoid the defendant relying upon the Statute of Limitations. The history of events up to the time when the statute might have applied and the extent to which the defendant knew of the existence of the claim, and the fact that proceedings had been brought on foot of it, could constitute good reasons.

Roche v. Clayton [1998] 1 I.R. 596 applied.Baulk v. Irish National Insurance Company Ltd.[1969] I.R. 66 considered.

Cur. adv. vult.

Clarke J. 21st January, 2010

Introduction

[1] This is an application under O. 8 of the Rules of the Superior Courts 1986, 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.

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

Facts and procedural history

[3] The second defendant is a firm known as the Meehan Levins Partnership. That firm was initially engaged by the plaintiffs in 1996 to design a dwelling house at Tara Hill, Gorey, County Wexford ("the property"). The plaintiffs also appointed the first defendant, Lacey Building and Civil Engineering Ltd. ("the contractor") to construct the property. In March, 1999, the second defendant incorporated as a limited liability company in the form of the third defendant, Meehan Levins Partnership Ltd., (together with the second defendant, "the architects").

[4] On the 28th February, 2002, the plaintiffs 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 contractor's workmanship. So far as the architects are concerned, complaint was made as to the supervision of the works by them. 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 28th February, 2002, the plaintiffs also terminated their agreement with the contractor. Apart from a letter of the 14th March, 2002, from the architects 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 plaintiffs. A number of further items of correspondence passed on which nothing much turns, but by letter of the 22nd July, 2004, a more detailed complaint was made by the solicitors for the plaintiffs 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...