The High Court has refused a contractor’s application to strike out Francis Dooley’s claim over alleged defects at a development in Courtown Harbour, finding that the contractor had not established even moderate prejudice from the delay.
Mr Justice Barr’s ruling, delivered on 30 March 2023, concerned only the fifth defendant, Clancy Construction Management Limited, trading as Clancy Construction. The company was the sole defendant then left in the proceedings. The judge refused the relief sought in its motion dated 5 September 2021; he did not decide whether the alleged defects or negligence were proved.
Dooley alleges that the contractor failed to build the development safely and properly, including in relation to structural and fire safety. The contractor disputes the claim. The judgment records that the parties also disputed whether the contractor abandoned the site in October 2008 or suspended work before terminating the contract in December that year. It was common ground that it carried out no further construction there after October 2008.
The court found that issuing the proceedings in July 2011, about three years after the events, was not an unreasonable “late start” given the complexity of the claims against several construction professionals. However, it held that, viewed as a whole, the plaintiff had been guilty of inordinate and inexcusable delay after the case began.
The judge also found culpable delay by the contractor: it took about 22 months to raise a notice for particulars after the original statement of claim, and three years and eight months to deliver its defence to the amended claim. Those delays weighed against striking out the case.
The contractor argued that witnesses’ memories would have faded and that the case could not fairly be tried so long after the building work. The judge found no allegation that relevant witnesses or documents were unavailable. He considered the central questions to concern the building as constructed and its safety, which would be addressed through expert evidence. He made no finding on the alleged defects, remedial work or responsibility for them.
Barr J also considered the plaintiff’s financial and litigation circumstances after the development stalled, the scale of the claim and parallel proceedings by Ocean Point Development Company Limited against the contractor, which were due to proceed to arbitration. He concluded that the greater injustice would be caused by striking out Dooley’s claim.
The court directed the parties to make written submissions on the final order, costs and an outstanding discovery motion. The case was listed for mention on 4 May 2023. The judgment did not state the outcome of that later listing.