The High Court has refused to dismiss a claim over failed heating and ventilation systems in 12 houses in Mullan Village, County Monaghan, despite finding about 30 months of inordinate and inexcusable delay by the plaintiffs. The case concerns claimed losses of just under €650,000.
Mr Justice Cian Ferriter ruled on 26 January 2022 that the balance of justice “just about” favoured allowing the proceedings to continue. He said the case appeared virtually ready for trial and the defendants had not shown that prejudice from the delay was likely to imperil a fair trial or outweigh the plaintiffs’ right to pursue their claims.
Michael and Margaret Treanor say they were developers of the housing project and agreed in May or June 2006 with Nutech Renewables Limited for the design and installation of specialist heating, ventilation and hot water systems. They claim the systems failed and had to be replaced with conventional systems at their expense. Their claims include alleged breaches of contract and duty, negligence, and misrepresentation. These remain claims, not findings by the court.
The defendants applied to dismiss the proceedings for want of prosecution. Their application initially also relied on a rule concerning failure to progress proceedings for more than two years, but the judge addressed the application under the court’s inherent jurisdiction because the plaintiffs had delivered replies to particulars within the two years before the dismissal motion was issued.
The judge accepted the plaintiffs’ explanation for some periods of delay, including time spent gathering expert evidence and exchanges about the claimed losses. He found other periods inexcusable, including about 12 months between July 2009 and February 2011, about nine months between the issue and service of proceedings, and about nine months in the period from April 2014 to April 2017. He concluded that the accumulated inexcusable delay was about 30 months and was also inordinate.
In weighing prejudice, the judge accepted there could be some effect on the defendants’ insurance and general business position, as well as risks from the passage of time. But he was not satisfied that the defendants had established material difficulty arising from unavailable witnesses. He also noted that the systems’ removal by 2009 was not attributable to the later culpable delay, and that relevant documents were not said to be unavailable. The plaintiffs had served a notice of trial and could seek to have the matter certified for trial.
The ruling did not decide whether the plaintiffs’ allegations are true or assess the merits of their case against any defendant. The judge said the defendants remained free to raise a separate application about the strength of those claims. He refused the dismissal relief and said no further delay by the plaintiffs should be tolerated; the parties should bring the action to trial as soon as practicable. A separate motion by Cooney Architects Limited to dismiss the defendants’ third-party claims was held over and was not decided in this judgment.