The High Court set aside proceedings brought by an architect against a restoration subcontractor after finding that a 21-month delay in seeking to join the subcontractor was unreasonable. The court said the architect had not explained or justified the delay, and that it was out of proportion to the progress of the main case.
The application concerned restoration work at Ashford Castle. The hotel companies bringing the main action allege that cavity trays in exterior walls were installed negligently and contrary to the manufacturer’s instructions, causing water to enter rooms near windows. They claim damages including repair costs and business interruption. Those allegations were not decided in this application.
The main contractor’s defence said the subcontractor carried out the allegedly defective work as a nominated subcontractor, and that the architect and/or project manager appointed it. The contractor also said the architect had certified the work. The architect sought to join the subcontractor in February 2020, and the court made an order joining it the following month. The subcontractor later applied to have the third-party notice set aside.
The architect argued that it was reasonable to await an expert’s addendum report before making a claim involving professional negligence, and that it had waited for a copy of the contractor’s defence. The judge said the architect had been put on notice of the substance of that defence in March 2019 through a discovery request. Its legal advisers did not seek a copy of the defence until November 2019.
The judge also found that the architect already had enough information to consider a contribution claim before receiving the addendum report. The alleged installation defects had been set out in the plaintiffs’ statement of claim, and the architect had inspected the work in 2015. The court found no proper explanation for the roughly 11 months taken to obtain the addendum, which was based on an earlier report and did not involve a site inspection by the expert.
The court concluded that the delay was unreasonable on both the architect’s explanation and an objective assessment of the proceedings’ progress. It made an order under Order 16, rule 8(3) setting aside the third-party proceedings. The judge’s provisional view was that the subcontractor was entitled to its costs against the architect, with costs to be adjudicated if not agreed. That costs order would be stayed if there was an appeal. The parties could file short submissions on a different form of order by 4 October 2021; if none were received, the order would be drawn up the following day.