The High Court refused an application by Charles Chawke and Edward Joseph Bohan to dismiss W.L. Construction Limited’s action over building works allegedly carried out at The Lord Lucan pub in Lucan, Co. Dublin, in 2006.
The defendants argued that the company had delayed in progressing the case. Mr Justice Barr found that the period between the plaintiff’s reply and defence to counterclaim in September 2011 and its notice of intention to proceed in February 2014 was inordinate. He accepted, however, that the plaintiff had provided a reasonable explanation.
The plaintiff’s solicitor said the company needed an architect’s report to address the defence and counterclaim, which disputed the amount claimed and alleged serious defects in the work. The architect’s review required further information about figures prepared by the original quantity surveyor, who then declined to continue acting. The plaintiff had to find a replacement quantity surveyor, retained in February 2013, whose draft report was completed in May that year. Further queries followed from the architect and senior counsel.
The judge said the previous quantity surveyor’s withdrawal and the need to engage a replacement accounted primarily for the elapsed time. He also found no real prejudice to the defendants: fading witness memories would affect both sides, and the defendants had identified no particular prejudice from the delay.
The application to dismiss the action was refused. The judge directed the plaintiff to set the action down for hearing without delay and said the counterclaim, arising from the same works, should be set down at the same time. If the plaintiff did not do so within six weeks of the judgment, the defendants could re-enter their application to strike out the claim. The court did not determine the underlying action or counterclaim.