The High Court has allowed a couple’s claim over alleged defects in their family home to proceed against one defendant, despite finding that delays in the case were inordinate and, for one period, inexcusable.
Mr Justice Eagar delivered the ruling on 28 July 2017 on an application by the first defendant, Joseph Gorman, to dismiss the claim for want of prosecution or because of delay. The court refused that application and said the claim could continue subject to strict management conditions.
The plaintiffs allege that Gorman was retained in 1999 to oversee the house construction and advise on its design. They say dampness emerged years later and that reports in 2011 identified a foundation problem. A report exhibited by the plaintiffs attributed moisture damage to the design of a raft foundation and knee wall without a tanking membrane. Those are allegations and report findings recounted in the judgment; the court did not determine the underlying negligence claim.
The couple issued proceedings in January 2012, and their statement of claim was delivered in July that year. The second defendant, J.A. Gorman Consulting Limited, had already been removed from the case in 2014 after the court found the claim against it was bound to fail because the company was incorporated after the property works were completed. The 2017 application concerned the claim against Gorman personally.
The court examined two periods of inactivity. It found inordinate delay between delivery of the statement of claim and the July 2014 decision on the earlier motion, while noting that the defendant had not delivered a defence. It also found that the period from that decision until the November 2016 dismissal motion was both inordinate and inexcusable.
The plaintiffs said they had faced difficulties rehousing their children and financial pressure, including continuing to pay the mortgage while living in rented accommodation, which made it difficult to fund legal representation. The court described the delay as understandable, but applied the balance-of-justice test, including the defendant’s own failure to file a defence. It also noted that the plaintiffs had not delayed issuing proceedings after leaving the house in 2009 and receiving reports in 2011.
The ruling did not decide whether the alleged design defects or negligence occurred. It allowed the claim against the first defendant to continue under strict court management; it did not specify the management conditions in the judgment.