The High Court has dismissed proceedings against an architect over alleged building work failures, ruling that the plaintiffs’ delay was inordinate and inexcusable and that the balance of justice favoured dismissal.
The judgment was delivered by Ms Justice O’Regan on 21 November 2019. It concerned an application by the first named defendant, Aidan Browne, to dismiss the claim against him for want of prosecution or, alternatively, because of inordinate and inexcusable delay. The court granted his application. It did not determine the underlying allegations about the building work.
The first two plaintiffs entered a fee agreement with Browne in May 2002 relating to the refurbishment of premises on Main Street, Ballinrobe, Co Mayo. Construction began in January 2004 and a certificate of practical completion issued on 30 May 2005. The plaintiffs issued these proceedings against Browne and others on 22 December 2008.
A statement of claim dated September 2011 was served on Browne around 15 June 2012. He sought particulars in November 2012. The next notice of intention to proceed against him was dated 14 February 2019, the same date as his dismissal motion. The plaintiffs later served replies to particulars and updated particulars of loss.
The plaintiffs’ solicitor said the particulars required financial and engineering work, and that the appointment of a liquidator to the third plaintiff had delayed progress. The liquidator was given court authority to continue the action in April 2017. The judge found no evidence explaining why that authority was sought more than three years after the liquidator’s appointment, or what steps the plaintiffs had taken to expedite it. She also found the wait for a financial report an inadequate explanation for the delay.
The first defendant argued that the passage of time prejudiced his ability to defend allegations affecting his professional standing. The contractor had been dissolved in 2016, preventing him from serving it with a third-party notice, and oral evidence about his supervision of the work would be important. The plaintiffs argued that dismissal would deprive them of access to the courts and said the hotel remained available for examination.
The judge accepted that dismissal would seriously affect the plaintiffs’ prospects of recovering their claimed losses. However, she concluded that the delay between the request for particulars and the notice to proceed was inordinate and inexcusable. Given the dissolved contractor and the need for oral evidence about supervision dating back to around 2005, she found that the balance of justice favoured dismissal at that time.