The High Court has refused an application by Bernard Murphy to set aside or dismiss an order allowing Borg Developments and Waterdrop to bring him into a case over alleged water leaks and dampness at Pembroke Square, Barrow Street, Dublin.
In a judgment delivered on 12 June 2012, Mr Justice Herbert found that the defendants had not failed to serve the third-party notice as soon as was reasonably possible. He also declined to set it aside because the notice did not itself state the grounds of the claim. The defendants’ grounding affidavit, which was served with the notice, set out those grounds, and Murphy did not dispute receiving it.
The underlying action was brought by Basinview Management Limited and 25 apartment owners from the Berkeley and Landsdowne blocks. Their claim alleges that water leaks and dampness, first noticed in July and August 2006, resulted from failures in vertical soil-stack joints and inadequate pipe supports. They seek damages and an injunction requiring repairs. The defendants deny responsibility and plead, among other things, that some of the damage was caused by Murphy, who owned Apartment 34 in the Landsdowne Block. Those allegations were not decided in this application.
The immediate dispute concerned the timing and form of the third-party notice. The statement of claim was delivered on 17 May 2010. Under the rules, the defendants’ time to seek leave to issue a notice ran from the deadline for their defence, and the application was made months after that deadline. The notice was served on Murphy on 19 July 2011, after further delays, including motions struck out for non-attendance and an extension of time to serve.
Herbert J considered the whole course of the proceedings. He found that the parties had spent about a year and ten and a half months in mediation, which ended without agreement in June 2009, and that subsequent time was taken up with identifying the correct second defendant and disputes over documents. He concluded it was reasonable for the defendants to wait until the plaintiffs’ claim was set out in the statement of claim before deciding whether to seek contribution from Murphy. He also found no evidence of actual material prejudice to Murphy from the later procedural delays.
The court nevertheless found that the notice did not comply with the rules because it omitted the grounds of the claim on its face. It declined to set the notice aside on that basis, finding that doing so would be unjust and disproportionate. Instead, it ordered that the defendants could not recover the costs of preparing, issuing and serving the notice, regardless of the outcome of the main action or the third-party issue. The underlying claims and allegations remain unresolved by this ruling.