The High Court has dismissed a builder’s claim for payment over building work in Headford after finding that his delay in pursuing the case was inordinate and inexcusable and that a fair trial would be difficult.
In a judgment delivered on 24 November 2020, Ms Justice Nuala Butler dismissed Paddy Cunningham’s claim against Tom Bracken and Catherine Murphy for want of prosecution. The order was made under the Rules of the Superior Courts or, alternatively, the court’s inherent jurisdiction. The judge did not determine Cunningham’s separate application to remit the proceedings to the Circuit Court because dismissal meant it no longer had to be considered.
Cunningham, trading as Cunningham Construction, sought payment for work on a commercial and residential development in Main Street, Headford, carried out in 2006 and 2007. The parties had made an oral agreement and disputed its terms. Cunningham claimed payment for the value of the work; the defendants said they had agreed a fixed price of €250,000 including VAT and had paid more than that once payments to other contractors were included.
The defendants also alleged that the building work caused damage to adjoining properties and left a façade structurally unstable. Cunningham said he had followed instructions from the defendants’ engineer about the foundations. The defendants blamed negligent work by Cunningham and his workers and said they had hired other contractors for remedial work and work they considered part of Cunningham’s contract. Those disputes were not resolved at this hearing.
The court traced the payment dispute to at least 2009. The defendants had paid Cunningham €213,666 directly by January 2010, according to the judgment. Cunningham later claimed a balance of €97,243. After obtaining a quantity surveyor’s report, he reduced his claim to €63,681.97.
Cunningham issued proceedings in July 2014 using a summary process, which the judge found inappropriate for the disputed claim. The case was adjourned for a plenary hearing by consent in May 2015. The defendants served a notice seeking further particulars in September 2015, including a detailed breakdown of the claimed building costs. Cunningham did not reply. He engaged a quantity surveyor in March 2016; the report arrived in March 2018, and his motion to transfer the case was not issued until August 2019.
The judge found nearly four years of delay after the notice for particulars was inordinate, and found the cumulative delay inexcusable. The defendants had not acquiesced in the delay, and their failure to pursue the unanswered notice did not shift the responsibility to them. The judge also considered the age of the events, the case’s dependence on oral evidence, and uncertainty about the availability and recollections of the engineer and other contractors. With the pleadings still incomplete, the case was unlikely to reach trial for at least a year. The court concluded that it would be difficult to conduct a fair trial and that the balance of justice did not favour letting the claim proceed.