The High Court has dismissed Gerald and Ann Kelleher’s proceedings over alleged defects in their family home, finding about 10 years of inexcusable delay and significant prejudice to the defendants. The court did not determine whether the house was defectively designed or built.
Mr Justice Cian Ferriter delivered the judgment on 26 April 2023. The builder and engineering defendants had applied to strike out the case for want of prosecution. The Kellehers had separately sought case management.
The proceedings, issued in March 2000, sought damages for alleged breach of contract and negligence, including personal injuries, arising from the construction of a house in rural Kilkenny. The Kellehers alleged defects affecting, among other things, the foundations, walls, roof, electrical installations and heating. They said they had to leave the house in September 2000 and had lived in rented accommodation since. The defendants denied liability. The builder also maintained a counterclaim for unpaid fees.
Applying the legal test for dismissal due to delay, the judge found the overall delay in the 20-year period was inordinate. He identified at least three years of inexcusable delay between the defendants’ appearances in 2000 and delivery of the statement of claim in 2004; at least three years during the period relating to the dormant Supreme Court appeal; and at least four years between September 2014 and August 2019. He said difficulties with former solicitors and other litigation did not excuse the Kellehers’ failure to advance this case, although he considered those circumstances when weighing the overall balance of justice.
The judge accepted that the claims concerned the Kellehers’ family home and that they had experienced difficulties with legal advisers and related litigation. He also found, however, that witnesses and evidence had become unavailable over time. The builder’s former expert, who inspected the house and prepared a report, had died; a former employee involved in the project was unavailable; and the builder’s original project file had been largely destroyed in a 2022 flood. The engineering defendants also faced difficulties relating to witnesses and expert evidence, including an engineer who had retired.
The judge concluded that the case could not fairly be resolved through a present-day inspection and documents alone. In his view, the passage of time made it harder to assess the building’s condition near the time of construction and to determine which defendant was responsible for particular work or alleged defects. Weighing that prejudice and the lengthy inexcusable delay against the Kellehers’ circumstances, he ruled that the balance of justice favoured dismissal.
The court dismissed the Kellehers’ proceedings against all defendants. Because of that conclusion, it did not consider the defendants’ alternative argument under the separate O’Domhnaill v Merrick line of cases. The Kellehers’ application for case management consequently fell away. The judgment does not resolve the underlying allegations of defective construction or negligence.