Tom Tanner v Aidan O'Donovan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 24 February 2015
• Neutral Citation: [2015] IECA 24
• Court: Court of Appeal (Ireland)
• Date: 24 February 2015

Tanner v O'Donovan (t/a Construction Design Studio) & Murphy

[Article 64 transfer]

BETWEEN/

TOM TANNER

PLAINTIFF/APPELLANT

AND

AIDAN O'DONOVAN AND ELAINE O'DONOVAN (TRADING AS CONSTRUCTION DESIGN STUDIO)

FIRST AND SECOND DEFENDANTS/RESPONDENTS

AND

TIMOTHY P. MURPHY

THIRD DEFENDANT/RESPONDENT

[2015] IECA 24

Finlay Geoghegan J.

Hogan J.

Mahon J.

Appeal Nos. 224 & 225/2014

THE COURT OF APPEAL

1 1. In these proceedings the plaintiff/appellant ("the plaintiff") claims damages for negligence and breach of contract against the first and second defendants (who are architects) and the third defendant (who is a consulting engineer) arising from the construction of a hotel at various dates between 1998 and 1999. By the late summer of 2009 the action had not been set down for trial and the first and second defendants issued a motion on 10 ^th September 2009 seeking to have the action struck out on the ground of inordinate and inexcusable delay. A similar motion was issued by the third defendant on 30 ^th September 2009.

2 2. On 14 ^th October 2010, the High Court (Feeney J.) made two orders dismissing the plaintiff's claims on the basis of inordinate and inexcusable delay in prosecuting the proceedings, and directed that the said proceedings be struck out for want of prosecution pursuant to the inherent jurisdiction of the Court. The plaintiff originally appealed to the Supreme Court against the making of these orders, but this appeal was transferred to this Court by direction of the Chief Justice (with the concurrence of all the other members of the Supreme Court) on 29 ^th October 2014 in accordance with Article 64 of the Constitution following the establishment of this Court on that day.

The proceedings and their background

3 3. The first and second defendants ("the first and second defendants") were retained by the plaintiff in 1997 as architects, and the third defendant ("the third defendant") was retained by him as an engineer in relation to the construction of a hotel in Clonakilty, Co. Cork. Complaints by the plaintiff relating to the professional work of the defendants first arose in 1998. The construction work was completed in March 1999 and the hotel was opened for business. The plaintiff maintains that attempts to sell the hotel in 2000, and again in 2001, failed because of problems with the premises which he attributes to breach of contract and professional negligence on the part of the defendants. The premises eventually sold in late 2001 for €1.7m.

4 4. The present proceedings were instituted by the plaintiff on 1 ^st September 2003. The claim against the defendants was based on their alleged breach of contract, negligence and negligent misstatement or that of their servants or agents. It is clear from the particulars contained in the statement of claim that the difficulties which the plaintiff claims to have encountered materialised from February 2008. It is further claimed that there were on-going delays in the construction of the hotel from February 2008 until it was completed in March 1999.

5 5. While first and second defendants jointly entered an appearance on 19 ^th November 2003, the third defendant entered an appearance on 9 ^th March 2004. The first and second defendants brought a motion on 10 ^th February 2004 to dismiss the proceedings for want of prosecution by reason of the failure to deliver a statement of claim. That motion did not ultimately proceed on the basis that the plaintiff agreed that he would deliver a statement of claim within a fixed time period. The statement of claim was eventually delivered on 2 ^ndMarch 2004, some six months after the issue of the plenary summons. The statement of claim provided details of the alleged breach of contract/negligence and negligent misstatement of the defendants, their servants or agents. In monetary terms, the plaintiff's claim for damages is for approximately €1.3m.

6 6. A defence was delivered in May 2006 on behalf of the first and second defendants. The plaintiff then brought a motion in November 2006 seeking to compel the third defendant to deliver his defence. This resulted in a consent order being made in January 2007 which allowed a period of four weeks for the delivery of the defence. While the third defendant believes that the defence was served in February 2007, the plaintiff maintains that it was not actually received until some date in early 2009. While this may (or may not) have been the case, it is noteworthy that the plaintiff did not make any application to the High Court in relation relating to the non delivery of the third defendant's defence at any stage between early 2007 and 2009 when he says he eventually received it.

7 7. Between the period from September 2003 (the date of the service of the plenary summons) to March 2009 (the date of service of the defendants' notices of motion which culminated in the order of the High Court under appeal), there were eight occasions when (between them) the defendants applied by motion to the High Court for orders compelling the plaintiff to take specific steps in the proceedings necessary for their processing, or to direct compliance with court orders already made, or seeking to strike out the proceedings for failure to comply with such orders (excluding the motions which are directly relevant to this appeal).

8 8. These motions can be summarised as follows:-

1 The defendants' motion dated 10 ^th February 2004 sought to dismiss the plaintiff's claim because of his failure to deliver a statement of claim.

2 The first and second defendants' motion dated 13 ^th July 2004 seeking an order directing the plaintiff to furnish replies to the defendants' letter seeking particulars dated 25 ^th March 2004, some four months earlier.

3 The first and second defendants' motion dated 7 ^th March 2005 seeking an order striking out the proceedings by reason of the plaintiff's failure to comply with the order of the court made on 18 ^th October 2004, some five months earlier.

4 The first and second defendants' motion for an order dismissing the plaintiff's action by reason of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29 ^th November 2007, some four months earlier.

5 The first and second defendants' motion seeking an order dismissing the plaintiff's action because of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29 ^th day of November 2007, some eight months earlier.

6 The first and second defendants' motion for an order dismissing the action of the plaintiff by reason of the failure on the part of the plaintiff to comply with an order of the Master of the High Court made on 29 ^th day of November 2007, 30 ^th May 2008 and November 2008, some fourteen months, eight months and four months earlier respectively.

7 The third defendants' motion seeking to compel the plaintiff to reply to particulars set out in a letter dated 5 ^th April 2004, some ten months earlier.

8 The third defendant's motion dated 16 ^th February 2006 seeking an order striking out the plaintiff's claim for failure to comply with an order for discovery dated 31 ^st May 2005, some nine months earlier.

9 The costs of the motions listed above were on each occasion awarded against the plaintiff.

Judgment of the High Court

10 10. An agreed note of the judgment of the High Court judge was supplied to this Court. It is evident, there from, that Feeney J. identified what he described as "three periods of possible delay". He identified the first period of delay as that prior to the institution of the proceedings in September 2003, and which he described as possibly being inordinate and inexcusable. He identified a second period of delay to have been between September 2003 and May 2007, and the third period of delay as being between May 2007 (by which time he noted the defences had been delivered and discovery dealt with) and, the date of service of the notices of motions relevant to this appeal (September 2009), during which period there was no proceeding.

11 11. Feeney J. was satisfied that the plaintiff's delay up to September 2009 was inordinate and inexcusable. He held that a period of well over two years had passed since the delivery of the defences which he noted was a greater amount of delay than that identified in Stephens v. Paul Flynn Ltd [2005] IEHC148. He went on to hold that the balance of justice lay with the defendants in acceding to their application to dismiss the proceedings. In doing so he referred to the fact that these proceedings were claims against individuals relating to their professional competence, and the fact that they were hanging over them for many years. Feeney J. also noted that two potential witnesses (for the defendants) had died, while another had emigrated.

Submissions on appeal

12 12. The plaintiff's arguments focussed on the questions of whether the delay was excusable and the balance of justice. So far as the excusability of the post-commencement delay was concerned, counsel for the plaintiff, Mr. Condon S.C., pointed out that the defendants had themselves delayed in delivering their defences and they would suffer no real prejudice. He submitted that the defences were largely purely traverses, so that the extensive particulars raised by the defendants had not been necessary. The defendants had not taken any steps to bring the case on to trial.

13 13. So far as the balance of justice was concerned, Mr. Condon S.C. acknowledged that while two witnesses had died, he contended that they were not central to the case and that all relevant parties were still available to the Court. He also submitted that the plaintiff had plainly suffered a significant and substantial loss as a result...