The High Court has refused an application by MVMBNI JV Limited and the Railway Procurement Agency (RPA) to dismiss three joined proceedings over alleged damage to businesses during construction of the Luas Green Line.
In a judgment delivered on 31 July 2013, Hanna J. found that the plaintiffs’ delays in progressing the actions were inordinate and inexcusable. But after weighing the parties’ conduct and the evidence available, the judge concluded that the balance of justice favoured allowing the proceedings to continue.
The claims concern works carried out between 6 July 2001 and 27 June 2004. The plaintiffs allege that noise, vibration, dirt, dust, obstruction of access and other effects harmed their businesses and premises. They claim negligence, breach of duty, trespass, nuisance and unlawful interference with constitutional rights. These are allegations in the underlying claims; the judgment addressed only the defendants’ application to dismiss for delay.
The Comprehend Limited and Idarls Limited actions began in 2004. The court found lengthy delays in both providing discovery and seeking it. The defendants’ discovery request dated from 2006, while the plaintiffs’ requests came in 2011 and 2012. In the Campbell-Sharp Associates Limited action, the statement of claim was not delivered until June 2012, more than eight years after proceedings began.
The plaintiffs said they had difficulty obtaining discovery documents and engaging engineers with relevant light-rail expertise. The judge accepted that an engineer had a necessary role in preparing the detailed discovery request, but held that those difficulties did not excuse delay of this length. The plaintiffs also argued that the Campbell-Sharp proceedings had been held back under an understanding that Comprehend and Idarls would act as lead cases. The court was not satisfied that the defendants had agreed to that arrangement, though it treated their lack of response to correspondence about it as relevant to the overall balance.
The court also considered delays and periods of non-engagement by the defendants, including in responding to correspondence about particulars and discovery. It found that the defendants had not demonstrated prejudice from the plaintiffs’ delay sufficient to prevent a fair trial. The judge considered the case principally documentary, with oral evidence also relevant, and said records of the large public works project could assist in determining the claims.
The court dismissed the defendants’ application to strike out the proceedings. It did not decide whether the plaintiffs’ underlying claims were established.