The High Court has struck out a property flooding claim against a motorway construction company after finding that the plaintiff’s inordinate and inexcusable delay outweighed the case for allowing the proceedings to continue.
Ms Justice Nuala Butler made the order on the first defendant’s application, under the court’s inherent jurisdiction. She did not decide whether the application should also succeed under the Rules of the Superior Courts. The plaintiff’s claim against Galway County Council, the second defendant, remains extant; the judge made no finding on whether the council was responsible for delay.
The proceedings concern flooding at the plaintiff’s property in Athenry, County Galway. The plaintiff alleges that road construction works carried out by the defendants between 2006 and 2009 altered groundwater and surface water flows, causing flooding from November 2009 onwards. Those allegations were not decided in this application.
The plaintiff issued proceedings in March 2012 and served his statement of claim in February 2014. The judge found that he accepted responsibility for five and a half years of inordinate and inexcusable delay up to October 2017. She assessed his culpable delay as probably longer, around seven or eight years, noting that he had taken no action to advance the case against the first defendant after its defence was filed in February 2019.
The judge rejected the plaintiff’s argument that the first defendant’s late defence and alleged delay by the council explained the later lack of progress. She accepted that the first defendant’s solicitor had mistakenly believed a defence had already been delivered. She also said the evidence did not show that any delay by the council had prevented the plaintiff from advancing his claim against the first defendant, while making no finding on the council’s responsibility.
The first defendant said it would be difficult to defend events dating back 12 to 15 years because former employees were unavailable, untraceable or outside the jurisdiction. It also said the ongoing proceedings prevented it from winding up and imposed continuing administrative costs. The judge found these matters created real difficulties, particularly given that the first defendant was a special-purpose company with no staff, premises or contact with the workforce involved in the works.
The plaintiff argued that the dispute was likely to turn on expert and technical evidence. The judge accepted that such evidence could reduce some effects of delay, but was not satisfied that the case could or would proceed solely on technical evidence. She also considered the proceedings’ early stage and the likely time needed to reach trial.
The court concluded that the first defendant’s concerns, the length of delay and the limited countervailing circumstances favoured striking out the proceedings against it. The order does not determine the flooding claim’s merits or dispose of the separate claim against the council.