The High Court has allowed part of a couple’s professional negligence action against a chartered engineer to proceed, while striking out claims based on alleged conversations and the recommendation of their builder.
In a judgment delivered on 6 December 2018, Ms Justice Baker considered the engineer’s application to dismiss the case for inordinate and inexcusable delay or want of prosecution. The court found the delay inexcusable but concluded that dismissing the whole action would be unfair. It confined the claim that may continue to breach of the contract of retainer.
The Powers’ action concerns engineering services provided during construction of their home. They allege, among other things, failures relating to structural support, damp proofing and insulation, and negligent certification of construction stages. The proceedings began in February 2010. The trial notice was struck out in October 2013, and the engineer’s dismissal motion was brought in September 2017.
The plaintiffs’ solicitors accepted that, during a change in office personnel, no solicitor had charge of the file for a period, and that oversight was lacking. Justice Baker said those difficulties did not excuse the delay. She also found no adequate explanation for delays in obtaining legal advice and expert reports, or for failing to respond to a tender offer. The court treated the period from mid or late 2013 to September 2017 as the relevant delay and described it as inordinate and inexcusable.
The engineer argued that the passage of time made it harder to distinguish original building defects from weathering and later deterioration, and that the builder’s liquidation could affect evidence and discovery. The judge found no expert evidence showing that the effects of time could not be separated from alleged inherent defects. She also considered the loss of access to documents speculative on the evidence before her, and found no causal link between the delay at issue and the loss of a possible claim against the builder.
But the court found likely prejudice in defending allegations that depended on recalling conversations and assurances said to have occurred years earlier. It also struck out the claim concerning the alleged recommendation of the builder, finding that the additional allegations about assurances and reliance made that part of the case unfair to defend after the delay.
The order was therefore limited: the entire proceedings were not dismissed, but the claims based on alleged assurances and representations and the alleged recommendation of the builder were dismissed. The remaining action may continue as a claim for breach of the contract of retainer, subject to those limits.