The High Court dismissed six defendants’ motion to dismiss a claim brought by John and Judith McGann over architectural services connected with a property they intended to buy and develop. Mr Justice Cross ruled on 12 December 2011 that the plaintiffs’ delay was inordinate but not inexcusable because the defendants had acquiesced in the course of inaction.
The plaintiffs claim damages for alleged breach of contract, negligence and misrepresentation. They engaged the defendants, described in the judgment as a firm of architects, first in June 2000 to certify compliance with existing planning permission and again in October 2001 in relation to the property’s continuing development. The plaintiffs said they became aware of a possible claim in October 2003. They issued proceedings in December 2004.
The defendants sought dismissal for inordinate and inexcusable delay. They identified the period from 21 December 2005, when they offered voluntary discovery, to 26 July 2010, when the plaintiffs made a fresh discovery request: four years and seven months. The court agreed that this delay was inordinate. It rejected the plaintiffs’ explanations that they needed to finish building the house, quantify their losses, mitigate those losses or obtain a quantity surveyor’s report. It also found that the defendants’ own delay had not materially caused the plaintiffs’ inaction.
The decisive issue was whether the defendants had acquiesced in deferring the assessment of the plaintiffs’ losses until the house was completed. The plaintiffs’ solicitor said she understood from a telephone conversation with the defendants’ solicitor that quantification would be deferred. The defendants’ solicitor had no note of such a call and did not recall it. Justice Cross accepted both solicitors’ affidavits as honestly made, but found the plaintiffs’ solicitor’s account established that she believed the defendants accepted the delay and acted on that understanding. The correspondence did not record an agreement, but the court concluded that the defendants’ silence and the passage of time had the effect of acquiescence.
Because of that conclusion, the court did not need to decide the balance-of-justice issue. It nevertheless said the defendants faced some prejudice, including the death in 2007 of their proposed expert, David Keane. The judge considered that prejudice less than the defendants claimed, noting that the case would principally turn on documents and that Keane’s original 2005 instructions could be used with a replacement expert. He said the balance would favour allowing the case to proceed and that a fair trial remained possible.
The court dismissed the defendants’ motion. It did not determine the merits of the plaintiffs’ underlying claims.