The High Court has struck out a third-party notice brought by Triangle Developments Limited and George Wadding against Frank Fox & Associates in a dispute over alleged damage to a Waterford building.
The underlying action was brought by Thomas and Katherine Greene, who seek relief for damage allegedly caused to their building at No. 5 Thomas Street during redevelopment of an adjoining site in March or April 2004. Those allegations were not decided in this application.
The application before Mr Justice Clarke was brought by Fox & Associates, which asked the court to set aside the third-party proceedings because of delay. The judge concluded that the notice should be struck out after finding that Triangle had not shown it acted with reasonable expedition in obtaining an expert engineering report or adequately explained the later delay in regularising the notice.
Triangle had received leave in February 2006 to issue and serve a notice within three weeks. A copy of a proposed notice was sent to Fox & Associates in March 2006, but it had not been issued through the Central Office. Triangle later obtained an extension of time, issued the notice on 3 January 2007 and formally served it on 29 March 2007.
The judge considered the full period up to formal service. He also took account of the fact that Fox & Associates had known the substance of the proposed claim since March 2006, and said that this reduced the weight to be attached to the later part of the delay.
Triangle’s explanation for the initial delay centred on waiting for an engineers’ report that its solicitors had identified as necessary. The report was sought from Douglas Baxter & Associates and arrived in December 2005, about seven months after it had been identified as needed. The judge accepted that waiting for an appropriate expert report before alleging professional negligence was proper in principle. But the affidavit evidence did not establish what steps were taken to expedite the report, press the engineers or consider instructing another firm.
The judge found Triangle had left that matter to ORR Risk Management and that there was no evidence Triangle had pressed ORR or otherwise been involved. He was therefore not satisfied that the seven-month wait was adequately explained. He also noted that, after being alerted to the failure to issue the notice in July 2006, Triangle did not apply to extend time until December, with no substantial explanation beyond the long vacation.
The order was limited to striking out the third-party notice. The judgment did not determine the Greenes’ claims about the alleged building damage or the underlying action’s outcome.