The High Court has dismissed Noel Kennedy’s action against Priority Construction Company Limited over material deposited on land beside the N25 in County Wexford during road works in late 2001 and early 2002. The court found inordinate and inexcusable delay and concluded that the balance of justice did not favour a trial.
Mr Justice Alexander Owens gave judgment on 12 March 2021 on Priority Construction’s application to dismiss the claim for delay. Wexford County Council, the first defendant, took a neutral position. The judge also dismissed an application to compel Priority Construction to comply with requirements relating to expert reports.
Kennedy began the action in October 2007, nearly six years after the events. His claim concerned two fields beside the road. The judgment records that he said he had allowed Priority Construction to place material on one field on terms that it would finish the land with topsoil. His early correspondence also complained that other waste was deposited and that a second field was damaged. The defendants denied liability; Priority Construction pleaded that material was placed with consent.
The judge reviewed lengthy gaps in the case. Particulars sought by the defendants in 2008 were supplied in June 2009 after a reminder and a court application. Defences followed in 2011 and 2012. The action was never set down for trial. After further inactivity, Kennedy served updated particulars in February 2019, including a proposed €700,201 remedial works cost, a land value claim and annual rental loss. Priority Construction then advised it would seek dismissal.
The judgment acknowledged delay by Priority Construction in delivering its defence and responding to discovery requests, but found those periods did not excuse Kennedy’s delay. The judge also rejected the argument that the company’s participation in the litigation showed it had accepted the case would proceed to trial.
In weighing the balance of justice, the judge said two men who had been on site and involved in the arrangements—Priority Construction quantity surveyor and foreman Peter Kane and the company’s then managing director—had died. Their evidence would be central to what had been agreed and whether material was deposited beyond any permission. The judge was not persuaded that loss of documents had been established as prejudice, but considered the missing witnesses and the passage of nearly 20 years made a fair determination of the disputed issues difficult. He therefore dismissed the action against Priority Construction.