The High Court has refused to dismiss Joseph Gilmartin’s claim against an architect and an architectural firm over a housing development at Coolbane, Castleconnell, Co. Limerick, despite a delay of more than six years in delivering a statement of claim.
In a judgment delivered on 8 November 2019, Mr Justice Meenan found the delay was inordinate but excusable. He also found that the second named defendant, Gilleece McDonnell O’Shaughnessy Limited, had acquiesced in the delay by waiting nearly three years after service of the plenary summons to enter an appearance and not applying to compel delivery of the claim.
The underlying allegations have not been determined in this judgment. Gilmartin alleges that the defendants provided architectural services for an estate of about 11 detached houses developed between 2005 and 2008. He says the defendants gave certificates indicating the houses were built on the development lands, but that he discovered in or around August 2009 that some stood on land still owned by Norman Bird and Donal Bird.
The Birds later brought proceedings against Gilmartin seeking, among other things, damages for trespass, slander of title and unjust enrichment, and an account of profits. In separate proceedings, purchaser Catriona (otherwise Kate) Shannon sought orders against Gilmartin and Declan Gilleece, including damages for negligence and breach of contract.
Gilmartin issued the present proceedings in December 2011, seeking damages for professional negligence and breach of contract. The firm sought dismissal for want of prosecution or, alternatively, dismissal for inordinate and inexcusable delay. The statement of claim was delivered in February 2018, after the dismissal motion had issued.
The court said Gilmartin’s pleaded claim was essentially for an indemnity or contribution in respect of the Bird and Shannon proceedings. It accepted that the claim could not be pursued until statements of claim had been delivered in those cases. The court noted that failure to serve a third-party notice did not prevent a later contribution claim, although granting one would be at the court’s discretion.
Justice Meenan declined to decide at this stage whether missing documentation or the passage of time would make a fair trial impossible. He said that issue could be raised after discovery, in a defence or by a further motion.
The court confined Gilmartin’s claim against the firm to seeking an indemnity or contribution in respect of the Bird and/or Shannon proceedings. It also allowed the firm to seek a later determination, following discovery, on whether a fair trial remained possible. The judgment stressed that those related proceedings should now move forward without further delay.