The High Court has allowed solicitors for a building contractor to come off record in a long-running Waterford property damage case, subject to the insurer paying specified legal costs. The court did not decide whether the insurer had validly repudiated the policy or resolve the underlying claims.
The action was brought by Tadhg McTiernan and Nelly McTiernan, who own and occupy premises at 5 Canada Street, Waterford, where they run a veterinary practice. They allege that demolition and development works at 3-4 Canada Street damaged their premises and disrupted their business. The works were allegedly carried out by the first defendant, Quin-Con Developments (Waterford Limited), under contract with the second defendant, LL Location Limited. The plaintiffs seek injunctive relief and damages.
The case began in December 2001. Four more defendants were added in 2003, including former owners and occupiers, a consulting engineer and a construction company. The first defendant failed to comply with a discovery order. In July 2003, the High Court ordered that its defence would be struck out unless it complied within 21 days; the order also provided for injunctions and an assessment of the plaintiffs’ damages if the defence was struck out. The defendant did not comply, and that default judgment remained in place without appeal.
The solicitors’ application arose after the insurer, General Star Insurance Company Limited, said in July 2004 that it was repudiating the policy because of the first defendant’s failure to co-operate with discovery. An earlier application to withdraw was struck out when the solicitors did not appear. They brought the present application in July 2006. The plaintiffs and other defendants opposed withdrawal or sought a costs condition. There was no appearance for the first defendant.
Justice Laffoy said the solicitors could not be forced to continue acting where the insurer had repudiated and the first defendant had not instructed them. She found, however, that there had been excessive delay in the insurer’s withdrawal from the defence and in bringing the renewed application. She considered that the decision to repudiate should have been communicated by March 2004 at the latest.
Permission to come off record was therefore conditional on the insurer bearing the plaintiffs’ costs of processing their claim against the first defendant from March 2004 until service of the July 2006 motion, excluding costs of steps taken without the insurer and solicitors’ involvement. The insurer must also bear all parties’ costs of answering the motion and any costs of the aborted earlier application that had been awarded against the first defendant. The court did not make the insurer liable for costs concerning the other five defendants.
The judge said the order could proceed if the insurer undertook to pay those costs; otherwise, the insurer would have to be joined as a party for costs recovery. She reserved further submissions on the form of the order and directed service of notice on the first defendant at specified addresses and on solicitors for Mr Quinn.