The High Court has refused applications by O’Hare and McGovern Limited and the defendants trading as WDR & RT Taggart to strike out a claim concerning alleged defects in a shopping centre in Monaghan Town.
Mr Justice Barrett ruled on 25 July 2014 that the proceedings could continue despite more than nine years between delivery of a defence and counterclaim in December 2003 and the plaintiffs’ notice of intention to proceed in February 2013. He found that delay inordinate, but excusable in the circumstances. The court declined to strike out the claim under its inherent jurisdiction; it did not decide the underlying construction dispute.
The plaintiffs, William Moffett and Anson Logue, were the remaining partners of Newbay Properties, which developed the centre. The judgment records that Taggart was engaged to supervise and procure the works, and O’Hare and McGovern was engaged to build it. The centre was substantially completed in or about November 1996. After construction, severe settlement occurred at the site. Tesco Ireland Limited, which succeeded Power Supermarkets as anchor tenant, alleged that poor design and construction caused the settlement.
Tesco began arbitration against Newbay in 2001. Moffett and Logue started these High Court proceedings against the defendants in 2002. The arbitration concluded with a final award on 6 March 2013. The court reviewed correspondence showing that the defendants knew the litigation had been commenced and were kept informed about the arbitration. It found that, over time, the parties understood the litigation would effectively wait until the arbitration ended, and that neither defendant group made a material objection to that sequencing.
Applying the principles in *Primor plc v Stokes Kennedy Crowley* and *O’Domhnaill v Merrick*, the judge said the delay was inordinate. He considered it excusable because the delay and its effect on the litigation had been signalled to the defendants, who did not materially object. He also concluded that the balance of justice favoured letting the proceedings continue, regardless of the delay findings. The judgment noted that the eventual outcome could affect the professional reputation of one or more people.
The ruling addresses only whether the proceedings should be dismissed for want of prosecution. It makes no finding on whether the alleged design or construction faults caused the settlement, or on any defendant’s liability.