The High Court has struck out Tesco Ireland Limited’s claim against an architectural and engineering firm over work on a shopping centre in County Monaghan, ruling that the company’s prolonged inactivity made it unfair for the case to proceed.
Mr Justice Barrett delivered the judgment on 25 July 2014. The defendants had applied to dismiss the claim for want of prosecution under the Rules of the Superior Courts and the court’s inherent jurisdiction. The court granted that application under both grounds.
Tesco claimed damages for negligence and breach of an alleged collateral agreement dated 4 November 1996. The dispute arose from the design and construction of the shopping centre during the 1990s. The firm had been retained by developer partnership Newbay Properties in June 1994 to provide professional services for the development. Power Supermarkets Limited, later acquired by Tesco, became the anchor tenant under a lease dated 2 December 1994.
The proceedings began on 15 October 2002. By the time the defendants brought their application in August 2013, Tesco had taken no substantive step in the case for almost 11 years. Tesco’s solicitor said it had pursued arbitration against Newbay first because running proceedings in two forums would have been uneconomical. Tesco intended to continue against the firm only if it could not recover from Newbay. Tesco won an arbitration award exceeding €1 million for remedial works, but later faced uncertainty about recovering that sum from Newbay.
The judge found the delay inordinate and inexcusable. Tesco had not informed the firm of its plan to defer the court case while pursuing arbitration, kept it updated about unexpected delays, or obtained its acquiescence. The judge said the delay arose from Tesco’s own tactical choice and circumstances unrelated to the defendants.
In weighing the balance of justice, the court considered the risk of serious prejudice because the events were almost two decades old and key witnesses had died. It also noted the claim concerned professional negligence and could affect professional reputation, and that a trial would still be some way off. The judge concluded that the balance of justice was against allowing the proceedings to continue.
The court did not decide whether the negligence claim was statute-barred. It said that issue did not need to be determined given the order striking out the claim.