The High Court has refused an architect’s application to set aside a third-party notice in a case over damp and mould in an apartment, finding that the notice was served as soon as reasonably possible after further inspection and expert reporting.
Mr Justice Mac Eochaidh delivered the judgment on 31 July 2012. The application concerned the timing requirement in section 27 of the Civil Liability Act 1961. The fifth-named defendant, an architect, had served a third-party notice on McKelan Construction Limited, which the judgment identifies as the project’s main subcontractor. The notice alleges that construction defects caused damage to the plaintiffs’ apartment. Those allegations were not determined in this application.
The plaintiffs say they have experienced significant damp and mould and that remedial efforts failed. Their statement of claim alleged negligence and breach of duty by the architect in the design, specification and construction of the property, including alleged insulation and damp-proofing deficiencies. The architect’s defence, delivered on 1 November 2010, referred to the subcontractor’s responsibilities, but the judge distinguished those general references from the more specific allegations in the later third-party notice.
The architect said it had initially been engaged in a limited capacity and had not supervised construction or inspected the works as they progressed. An expert inspection of the apartment took place on 19 July 2011, including examination of opened-up works, floor insulation, cavity insulation and ventilation. The expert report followed on 25 October 2011. The architect sought leave to issue the notice on 28 February 2012. The court described the interval from delivery of the defence to service of the notice as approximately 14 months.
The judge accepted that the inspection gave the architect sufficient information to ground proceedings against the subcontractor, which it did not have when it filed its defence. He found the delay was in the “danger zone” but held that the architect had shown it acted as soon as reasonably possible. In reaching that decision, he considered the purpose of section 27 in facilitating joined or sequential trials, the absence of an identified complaint from the plaintiffs about delay, and the lack of real prejudice to the subcontractor from the additional year. The judge also noted the architect had expected the main contractor to join the subcontractor, but said that expectation highlighted the danger of waiting for another party to do so.
The court refused to set aside the third-party notice. It required the parties to engage with the court to establish a strict timetable for pleadings and any interlocutory matters in the third-party proceedings, so the plaintiffs’ action could proceed as planned and the related action closely accompany it. The judge said he would hear the parties on timing. The ruling addressed the notice’s timing and did not decide the underlying claims about the apartment’s condition or responsibility for it.