The High Court has refused an engineer’s application to dismiss a developer’s claim over alleged foundation defects at three townhouses in Williamstown, Co. Galway, ruling that the limitation issue could not be decided on affidavit evidence alone.
Mr Justice Barr said the parties disputed when damage to the properties occurred. Oral evidence from the parties and their experts would be needed before the court could reach a conclusion on the Statute of Limitations defence. The judge left that defence live for determination at the trial of the action.
The proceedings concern Liam Brandley and WJB Developments Limited’s claim against Hubert Deane, an engineer, and John Lohan, whose business carried out foundation works. The plaintiffs allege that the foundations were defective. Deane sought dismissal of the claim against him as out of time.
Deane submitted that his last involvement was issuing certificates on 4 September 2004, and that any claim based on negligent supervision or certification had become statute barred before the plenary summons was issued. The judgment records the summons date as 30 November 2010. The plaintiffs argued, relying on expert evidence, that the damage occurred after the houses were completed in December 2004, probably in August 2005, and that the dispute over timing should not be resolved on affidavit evidence.
The judge refused the dismissal application because the timing of the damage was disputed. He also declined to direct a separate preliminary trial of the limitation defence, saying substantially the same evidence would be heard at the main trial. The judgment noted that the action was due to be heard in December 2014.
Deane also argued that the claim should be dismissed for delay. The judge accepted that the action had not been prosecuted with great speed, but held that the delay was not enough to disentitle the plaintiffs from bringing it.
The plaintiffs further argued that findings in an earlier case brought by purchaser Aiden Connelly should prevent Deane from resisting judgment. The judge rejected that argument: the parties and issues differed, and the limitation defence had not been available in the earlier case. He concluded that the present issues were not res judicata.
The ruling did not decide whether the engineer was negligent, when actionable damage occurred, or whether the limitation defence will ultimately succeed. Those matters remained for trial.