The High Court has refused an application by Hypertrust Ltd. to dismiss Irish Water’s claim against it over damage caused when drilling breached a water main near the Leopardstown Inn in Stillorgan in February 2014. The court found no inordinate and inexcusable delay in the prosecution of the current proceedings.
Hypertrust, the first named defendant, sought dismissal on several grounds, including delay and want of prosecution. Its application also challenged the delivery of Irish Water’s statement of claim and sought to have it struck out. The court refused all the reliefs sought. It reserved the issue of costs to the hearing of the action.
The underlying claim concerns drilling on land owned by the second and third named defendants. Irish Water’s case, as summarised in the judgment, is that a contractor engaged to drill a borehole struck and breached a public water main on 10 February 2014. The judgment concerns Hypertrust’s procedural application; it does not decide liability for the alleged damage.
Irish Water began earlier proceedings in May 2015. That summons expired without service, and the earlier proceedings were discontinued in February 2017. The current proceedings began in April 2017. Hypertrust argued that the time taken to advance the claim was inordinate and inadequately explained, pointing in particular to delays in service and in correcting a procedural objection to the statement of claim.
Irish Water said the procedural history was explained by service difficulties, investigations into land ownership and other matters, and the need to obtain engineering evidence. The court reviewed the progress of the case, including efforts to serve the defendants, the preparation of the statement of claim and third-party proceedings brought by the second and third defendants.
Applying the principles in *Primor plc v Stokes Kennedy Crowley*, the court said it found no identifiable period of inactivity, disinterest or inadvertence in the current proceedings that required explanation or justification. It also rejected the argument that Irish Water’s status as a semi-state company, or its position as a contingent creditor, imposed a heightened duty to progress the claim.
Although the court said it did not need to decide the balance-of-justice limb of the test after finding no qualifying delay, it addressed the parties’ prejudice arguments for completeness. It concluded that the matters raised by Hypertrust did not show prejudice warranting dismissal or a risk to a fair trial. The judgment records that the main point identified concerning Hypertrust’s liability was its claim that it did not own the land where drilling took place; liability itself was not decided.