The Court of Appeal has allowed a roofing contractor’s appeal against the dismissal of his claim against Mercury Engineering, concluding that the balance of justice favoured letting the case proceed despite inordinate and inexcusable delay.
The judgment, delivered by Ms Justice Mary Irvine on 12 March 2015, set aside a High Court order that had dismissed the claim in November 2014. The Court of Appeal noted that the appeal was technically lodged outside the 10-day period for an appeal against an interlocutory order. It nevertheless exercised its discretion to hear the appeal on its merits, saying the appellant would likely have met the criteria for an extension of time.
The proceedings began in the Circuit Court in May 2009. Colm Granahan, trading as C G Roofing and General Builders, alleged that an agreement made in 2008 required him to supply painting and labouring services at the Corrib Gas project site at Bellanaboy, Co Mayo. He claimed Mercury Engineering breached the agreement and ended the arrangement prematurely. Mercury denied the allegations of wrongdoing, loss and damage.
The claim was transferred to the High Court in 2011. The Court of Appeal identified several later periods of inactivity, including more than a year after the case was adopted into the High Court and about a year between a notice of intention to proceed in January 2013 and the next such notice in January 2014. It agreed with the High Court that the delay was inordinate and inexcusable. No explanation for the periods of inactivity had been provided in the affidavits.
However, the appeal court considered the claimed prejudice to Mercury and the conduct of both parties. It gave little weight to the fact that five potential defence witnesses had left the company or were said to be difficult to locate. The affidavit did not set out efforts to trace them or establish that they would be unable to attend trial. The court also noted that at least three had left before 2012, and one was working for Mercury in Sweden.
The court acknowledged concern that the case could take considerable time to reach trial, particularly if Granahan’s proposed application to add allegations of fraud, forgery and possibly defamation succeeded. But it found the likely prejudice did not outweigh the terminal prejudice to Granahan of losing his claim. It said the balance of justice favoured allowing the action to proceed.
The court warned Granahan to proceed with all due expedition and said Mercury could apply again to dismiss the claim if further unnecessary delay or prejudice emerged. The appeal was allowed; the judgment does not determine the underlying contract dispute.