The High Court has refused a builder’s application to strike out a homeowner’s claim over allegedly defective foundations, despite finding that the homeowner’s delay in prosecuting the case was inordinate and inexcusable.
Mr Justice Barr ruled on 3 August 2022 that the action could proceed to a hearing. The application concerned delay only; the court did not decide whether the foundations were defective or whether the builder was liable.
The homeowner, Wayne Barrett, owns a house in Finglas, Dublin 11, built by Traymount Construction Limited in 2003 or 2004. He noticed cracks in 2008 and began investigations. Proceedings issued in 2012 against the builder and four other companies, initially over alleged pyrite contamination. In 2014, he discontinued the case against those four companies and focused his claim against the builder on alleged defective workmanship in laying the foundations.
The builder sought to have the action dismissed for want of prosecution. It argued that a trial likely to take place in 2023 or 2024 would be unfair because its director would have to recall events from around 20 years earlier. It also cited missing construction records, the absence of its own engineering inspection of the original foundations, and potentially unavailable witnesses.
The court found that the delay from 2012 to 2014 in bringing the case on for hearing was inordinate and inexcusable. It accepted that investigations into defects could explain the time taken between the cracks appearing in 2008 and the proceedings being issued, but found no sufficient excuse for the later delay.
In weighing whether the case should nevertheless continue, the judge noted periods of delay by the builder, including its late appearance and delays and deficiencies in discovery. The company had also been dissolved and removed from the Companies Register in 2017 while litigation was ongoing, and later restored. The court also took account of the disruption to witness trials during Covid-19 restrictions.
The judge considered that the central issue would be the adequacy of the foundations and that expert evidence would be important. The builder’s engineer had been offered opportunities to inspect the exposed foundations in 2011 but did not attend the arranged inspections. The homeowner offered to disclose relevant reports and records from his experts. The court said the builder’s lack of its own expert evidence was its responsibility. It also found that the builder’s construction records had apparently been discarded after the work, before the defects appeared, and that the builder had not pursued third-party discovery or joined the architect and engineer.
The court refused the requested strike-out relief. It directed the homeowner to file a reply to the defence within four weeks after the order was perfected and to make discovery, within eight weeks, of reports and records concerning the foundations and remedial works. The court invited written submissions on the final order and costs and listed the matter for mention on 11 October 2022. The judgment does not record the final costs decision.