The High Court has allowed Lynette Kilroy’s apartment-defect proceedings to continue against two defendants, but dismissed Paul Gray’s separate claim concerning another apartment in the same development because of his delay in advancing it.
In a judgment delivered on 11 July 2018, Ms Justice Faherty considered applications by the third and fourth defendants to dismiss both cases for want of prosecution or inordinate, inexcusable and prejudicial delay. The applications concerned only those defendants. The court denied their requested relief in Kilroy’s proceedings and granted it in Gray’s proceedings.
Kilroy’s case concerns an apartment at The Cedar, Cruagh Wood, Stepaside, County Dublin. She alleges defects including inadequate insulation and the absence of a damp-proof membrane, causing damp, condensation and mould, and claims personal injury and the cost of remedial work. Those allegations have not been established by the judgment.
The court accepted that delay in her case was inordinate and, for the most part, inexcusable. It found that her illness over almost 12 months explained some of the delay, but did not provide a sufficient overall excuse. In weighing the balance of justice, the judge accepted that the defendants faced some prejudice, including the death of Graham Elmes, whom the third defendant described as closely involved in the project. The judge noted that another engineer, Eamon Sweetman, had certified the apartments and could use project documents, plans and files. The court was not persuaded that Elmes’s death tipped the balance in favour of dismissing Kilroy’s claim.
The judge also considered the nature of the claim and that the alleged insulation and damp-proof defects remained capable of investigation. Kilroy may continue against the third and fourth defendants, provided she honours her undertaking to proceed promptly and meet a strict timetable for outstanding replies to particulars and discovery matters. The judgment did not decide whether the alleged defects existed or who was responsible.
Gray’s proceedings concern an apartment in the same development. His plenary summons issued in November 2011, but no statement of claim had been delivered. The judge found that he had delayed considerably in bringing the case and had not explained the delay. Allowing it to proceed would require the defendants to face the steps needed to advance the claim, which the judge considered sufficient prejudice when weighed against the inordinate and inexcusable delay. The court therefore granted the applications to dismiss his proceedings.
The judgment addressed the delay applications; it did not determine the underlying construction-defect allegations.