The High Court has struck out Siobhán O’Dowd’s claim over the construction of a house at Barrymore, Athlone, after finding that inordinate and inexcusable delay created a real risk that engineer Gerrard Pettitt could not receive a fair trial.
Mr Justice Max Barrett delivered the judgment on 7 March 2018. He granted Mr Pettitt’s application to dismiss the proceedings. The application concerned delay in prosecuting the case; the court did not decide whether either defendant was liable for the alleged construction defects.
Ms O’Dowd’s 2008 claim sought damages for alleged negligence, breach of duty, breach of statutory duty and breach of contract. Her statement of claim said building contractor John Gavin had agreed in writing in March 2006 to build a dwelling-house for €212,000, and that Mr Pettitt had been retained as engineer to supervise the works and certify their completion.
Mr Pettitt’s defence and correspondence disputed that account of his role. He said he had been retained to issue interim certificates following periodic inspections, and that he had supplied a snag list. He maintained that any construction deficiencies were a matter for Mr Gavin’s estate. The judge stressed that liability and the relevant facts would have been for a trial had the proceedings been allowed to continue.
The judgment’s chronology recorded repeated periods of delay. The court noted a three-and-a-half-year gap after Ms O’Dowd’s second request for voluntary discovery, and that a third request was made about a year after a February 2016 letter said preliminary advice from Senior Counsel had been obtained. Ms O’Dowd accepted that her delay was inordinate. The judge also acknowledged delay by Mr Pettitt, including in responding to a 2010 request for particulars, but found Ms O’Dowd’s delay inexcusable. He allowed for some administrative delays associated with legal aid and recognised her limited means, but said those factors did not explain all the delay.
In assessing prejudice, the judge accepted that Mr Pettitt would have difficulty recalling events and conversations dating back to 2006. He also gave weight to Mr Gavin’s death in January 2017, which deprived Mr Pettitt of a potential source of evidence and meant the case would need to be reconstituted against Mr Gavin’s estate to proceed. The court said it was not practicable to separate any parts of the claim unaffected by the death for a separate trial.
The judge also considered Mr Pettitt’s evidence about professional reputation and increased insurance costs, and rejected Ms O’Dowd’s contention that he had acquiesced in the delay. He concluded that the balance of justice favoured dismissal and that continuing the case risked an unfair trial. He said the same risk would arise under the alternative legal test advanced in argument. The proceedings were therefore struck out; the judgment did not determine the merits of the claims.