The High Court has refused an application to set aside a third-party notice bringing structural engineers into a dispute over water ingress at a school sports hall built in 1999.
The judgment concerns a procedural application by Ewbank Preece O’Heocha Limited, the third party, to set aside the notice issued by the second defendant, architects Buchan Kane and Foley. The court had granted the architects leave to join the engineers in July 2011. The engineers argued that the application had not been made “as soon as is reasonably possible”, as required by section 27(1)(b) of the Civil Liability Act 1961.
The underlying claim was brought by Mary Bernadette Murphy, described in the judgment as the representative of the religious community that owns and operates the school. The claim concerns alleged defects in the hall’s weatherproofing and the cost of remedial work. The judgment records that water problems appeared soon after the school took occupation and that a meeting in April 2005 discussed flooding and remedial measures. It makes no determination of liability for the alleged defects.
The engineers pointed to delays from the architects’ appearance in 2008 through the service of the plaintiff’s statement of claim in June 2010, and in the months before the July 2011 joinder application. They argued that the architects had been involved in appointing the engineers and had access to project documents. The architects said they needed the claim’s particulars, specialist engineering advice and time to assess a consultant’s report before deciding whether to seek contribution.
Justice Ryan first rejected the argument that delay could be left for the eventual contribution decision rather than grounds to set aside the notice. He said the Supreme Court had already rejected that interpretation of section 27 in Greer v John Sisk and Sons Ltd, which bound the High Court.
On the delay itself, the judge assessed the period from delivery of the statement of claim on 2 June 2010 to the joinder application. He accepted that seeking particulars and obtaining and considering an engineering report were reasonable steps. The report was received on 28 April 2011 and the motion issued on 8 July. The court found that the architects had explained the material periods and that, viewed in the context of the case’s overall progress, the delays were not unreasonable.
The application to set aside the third-party notice was refused. The ruling addresses only whether the engineers should remain joined in the proceedings; it does not decide the underlying claim or whether any party must pay for repairs or contribute to damages.