The High Court has refused an application by six defendants to dismiss a claim over windows and doors installed at the plaintiffs’ home, finding that the delay was inordinate and inexcusable but that the asserted prejudice was too vague and speculative to justify dismissal.
In a judgment delivered on 7 March 2024, Ms Justice Marguerite Bolger said the proceedings had been on foot for about 13 years before the defendants applied to have them dismissed. The claim alleges negligence, breach of duty and breach of contract arising from the installation. Those allegations have not been determined.
The judge said the plaintiffs bore responsibility for moving the case towards a hearing, and that their greater contribution to the delay was not excused by the defendants’ partial responsibility. She noted that the defendants had, on more than one occasion, asked the plaintiffs not to proceed with a threatened motion for judgment while the defendants sought time to take further steps.
The defendants argued that the passage of time had made it difficult to trace former employees and expert witnesses, recall events and locate documentary evidence. They also pointed to the dissolution of a corporate defendant and said the court could struggle to make fair final orders if the plaintiffs succeeded at trial.
Ms Justice Bolger said those claims lacked detail. The defendants had not explained what efforts they made to locate witnesses or records, or why the reports and material from early inspections could not address the issues. The judge also noted that the defendants, suppliers and an engineer had inspected the windows and doors relatively soon after installation. She said a trial judge would be better placed to assess any challenges after hearing the evidence and submissions.
The court therefore refused the dismissal application. The proceedings will continue, and the judge said they would likely benefit from case management. She listed the matter for 13 March 2024 to consider case-management directions and any remaining final orders.
The judge gave an indicative view that the plaintiffs should receive their costs of the dismissal motion, with execution stayed until the proceedings are finally resolved. She left the costs issue open to submissions when the matter returned to court. The judgment did not decide the underlying claim or make a final costs order.