The High Court has refused an application by fire safety consultant Diarmuid Kelly to set aside the renewal of summonses in claims brought by Jacqueline Crowe and Barry O’Neill over alleged defects at homes in Dublin’s Belmayne development. It granted his application in the third claim, brought by Graham Gibbons, because the summons was served during a further renewal period that the court found could not validly be granted.
The three plaintiffs began separate proceedings on 9 November 2012 against nine defendants, including Kelly. They claimed damages for nuisance, negligence and breach of duty, including statutory duty, arising from the alleged defective design and construction of maisonette and apartment homes. Their claims included allegations that the properties were fire hazards and uninhabitable. These were allegations, not findings on the underlying claims.
Kelly’s position, as summarised in the judgment, was that he had prepared fire safety material and an opinion on the proposed design, but had no role in construction, inspection or post-construction compliance certification. He applied to set aside orders renewing the summonses for service. The court heard the three applications together on affidavit evidence and written submissions. It was deciding whether the renewals should stand, not whether the plaintiffs’ claims about the homes were proved.
The judge said the plaintiffs had not moved expeditiously. Kelly received little advance notice, and the court found the explanations based on limitation deadlines and delays obtaining expert reports unconvincing. However, the claims appeared predominantly document-based, and the judge considered that Kelly could likely learn the allegations through disclosure or dealings with co-defendants. If the claims against him ultimately failed, he might recover his costs.
The judge weighed that against the consequences for the plaintiffs if Kelly were removed from the cases. Fire safety was central to their claims, and they would be unable to pursue him if the applications succeeded. The judgment also noted the developer company’s demise and uncertainty about the prospects of proceeding against other defendants. On that balance, the judge refused Kelly’s applications concerning Crowe and O’Neill.
Gibbons’s case had an additional procedural problem. His summons was served after the first six-month renewal period, during a further period granted on an ex parte application. Applying the reasoning in an earlier case, the judge concluded a second renewal had to be sought while the summons remained in force. He therefore found no basis to preserve the renewal in Gibbons’s case and granted Kelly’s application as it related to him.
The court reserved costs and any other arising matters for submissions from counsel. It made no finding on the merits of the underlying claims.