The Supreme Court dismissed Gerald J. P. Stephens’s appeal and affirmed an order striking out his claim against Paul Flynn Limited for want of prosecution. The appeal concerned the High Court’s discretionary decision to dismiss the proceedings because of delay; the Supreme Court did not decide the underlying building contract dispute.
Stephens had engaged the company to build a house at Thornhill Manor, Hollymount, County Mayo, under a written agreement dated 9 December 1994. The stated contract price was €355,215.58, including VAT. The parties disagreed over payments, construction delays and alleged defects. On 5 December 1995, the company boarded up the house’s front door. The company’s principal said this was to protect his position because he considered payments significantly overdue. Stephens treated the action as repudiation of the contract and accepted it. His claim sought damages measured by completion and remedial costs, less the unpaid contract balance.
Stephens began proceedings on 29 November 2001, just within the six-year limitation period. The company requested a statement of claim in January 2002. It was not delivered until 27 November 2003, about 20 months later. Stephens’s explanation was that he could not obtain information from his engineer, Cyril Kelly, because Kelly was ill and in hospital.
New evidence before the Supreme Court undermined that explanation. The company’s solicitor said Kelly told him in 2007 that he had not been ill or in hospital in 2002 or 2003. Stephens accepted that his earlier sworn statement about Kelly’s hospitalisation was incorrect, while saying he had relied on information from his solicitors. Correspondence admitted on appeal showed Stephens had himself been contacting Kelly to press for a report, without mentioning illness. The court said the excuse for the delay was “completely without substance.”
The court applied the established tests for dismissal: whether delay was inordinate and inexcusable, and, if so, where the balance of justice lay. It said the High Court had exercised its discretion reasonably and that the appeal was not a fresh hearing of the original dismissal application. Although the construction dispute involved expert evidence, the court found the 20-month delay unreasonable and the explanation untenable. It also agreed that the company would face prejudice and that justice favoured ending the dispute.
The court therefore dismissed the appeal and affirmed the High Court order. It made no finding on whether either party breached the contract or on the amount of any damages.