The High Court ordered an engineer removed as a defendant from a homeowner’s building defects case, holding that the claim against him was clearly and manifestly statute barred.
Mr Justice Birmingham delivered the judgment on 31 May 2013. The application concerned the third named defendant, who sought to be struck out under the Rules of the Superior Courts, or alternatively to have the order joining him to the case set aside.
The plaintiff alleged that she contracted with the first named defendant in November 1999 to build a home at 22 Hyde Court, Roscommon. The engineer had been instructed in relation to the development. He issued a foundation inspection certificate in September 1999 and a planning compliance certificate in June 2000.
The plaintiff moved into the home in April 2001. She noticed wall cracks in December 2001 or January 2002, initially assuming they were settlement cracks. She later alleged significant defects, including foundations placed on unsuitable ground and inadequate support for the roof. Her pleadings alleged negligence, breach of duty and misrepresentation in connection with the certificates.
The engineer was joined as a co-defendant by an order dated 20 June 2012. The plaintiff said she did not learn that he had certified the foundations until the certificate was produced through discovery on 24 January 2012. She argued that the limitation period began when she learned of the certificate.
The court said a defendant may generally be joined even where there is a dispute about whether a claim is time-barred. But it may refuse joinder where the claim is clearly statute barred and the defendant intends to rely on the limitation period. The court considered whether the claim was clearly out of time and whether any circumstances would prevent the engineer from relying on the statute.
The judge held that the limitation period for negligence began when damage manifested, not when it was discovered. Even on the facts most favourable to the plaintiff, the cause of action accrued by January 2002, while proceedings against the engineer did not begin until 20 June 2012. The court concluded the claim was clearly statute barred and granted the relief sought by the engineer.
The judgment does not determine the alleged defects or the plaintiff’s claims against the other defendants.