The High Court has dismissed a claim against two defendants over works required by a settlement agreement, finding that lengthy, unexplained delays in prosecuting the case caused substantial prejudice to those defendants.
Mr Justice Rory Mulcahy delivered the judgment on 8 March 2024. The application was brought by the third and fourth defendants to strike out the plaintiffs’ claim for want of prosecution. The court dismissed the action against those defendants only. It did not decide the plaintiffs’ motion to compel replies to particulars, which was no longer necessary to address. The matter was listed for mention on 22 March 2024 to address ancillary matters and costs.
The proceedings began in April 2011. They sought specific performance of a 2009 settlement of earlier cases concerning alleged water damage to the plaintiffs’ premises. Under the settlement, the third and fourth defendants were to install a hopper at a property on St Patrick’s Hill in Cork and, with other defendants, fill and seal steps. The agreement also required the defendants to provide a certificate that the works met agreed specifications. The plaintiffs’ claim alleged that the work carried out by the third and fourth defendants was ineffective.
The judge identified two prolonged periods with no progress: from the case being set down for trial in March 2014 until a discovery request in August 2017, and from completion of discovery in November 2018 until a request for particulars in May 2022. The plaintiffs did not explain most of the delay. The judge found it both inordinate and inexcusable.
In weighing the balance of justice, the court found substantial prejudice in the plaintiffs’ delay depriving the third and fourth defendants of the opportunity to rely on indemnities from the first defendant. The first defendant had entered a personal insolvency arrangement in 2015. The judge did not decide whether those indemnities would ultimately have succeeded as a defence, but found that losing the opportunity to advance the argument was a real prejudice. He found no established prejudice concerning a notice of indemnity and contribution, and described the evidence about insurance and the ability to sell the property as showing only slight prejudice.
The judge also found that assessing the works more than a decade after completion would diminish the value of expert evidence and disadvantage the third and fourth defendants. Participation in discovery and later without-prejudice discussions did not prevent dismissal. The parties had agreed that the time spent in those discussions would not count as delay.
Judgment had already been entered against the first and fifth defendants in an amount to be assessed. The court noted this and other proceedings concerning water damage when considering the impact of dismissing the claim against the third and fourth defendants.