The High Court has refused a contractor’s application to strike out a claim over alleged damage to Skipper’s Bar in Courtown Harbour, County Wexford, while finding that the plaintiff’s delay in progressing the case was inordinate and inexcusable.
Mr Justice Barr delivered the judgment on 30 March 2023. The application concerned only the contractor’s motion, issued in September 2021, to dismiss the plaintiff’s case against it for delay and want of prosecution. The court refused the relief sought. It did not determine whether the construction work caused damage or whether either defendant was liable.
Francis Dooley alleges that construction work carried out from March 2007 on an adjoining site damaged the pub premises, which he owned. He also alleges that Mulcahy McDonagh & Partners, retained as project managers for the development, failed to supervise the contractor adequately. These are pleaded claims, not findings in this judgment. Dooley claimed a diminution in the premises’ value of €1.57 million and continuing lost rental income of €231,429 a year from March 2008.
The proceedings began in June 2011. Barr J found that the period from then until the plaintiff first sought to serve a notice of trial in July 2020 was inordinate and inexcusable, even taking account of the related litigation. But applying the three-part test for delay, the judge found that the balance of justice favoured letting the claim continue.
The judge was not satisfied that the contractor had shown real prejudice from the passage of time. The central issue at trial, the judgment said, would be expert evidence about whether the adjoining-site works caused damage to the pub and, if so, what caused it. The contractor had not shown that it could not obtain expert evidence, that critical witnesses were dead or unavailable, or that relevant documents were missing. The judge also found that the contractor had acquiesced in some of the delay, noting that it did not follow up its April 2018 discovery request when the plaintiff failed to respond, and revived the request when the plaintiff sought to move the case towards trial in 2020.
The court also considered the plaintiff’s multiple related legal disputes and the financial pressure associated with the development and economic recession. It found that dismissing the claim would deprive him of the opportunity to seek a remedy for losses he alleges are substantial, while the contractor had not established prejudice sufficient to justify dismissal.
The parties were given four weeks to provide written submissions on the final order, costs and any other matters. The case was listed for mention on 4 May 2023. The judgment did not decide those final matters or the underlying claim.