The High Court has refused Mythen Construction Limited’s applications to set aside orders renewing summonses in two proceedings over alleged design and construction defects at the Maltings apartment and office complex in Faythe, Co. Wexford. The decision leaves both proceedings in place; it does not determine the underlying claims of negligence or breach of contract.
Ms Justice Faherty delivered judgment on 20 March 2018. The applications concerned renewal orders made on 7 November 2016 in the Coleman proceedings and 23 January 2017 in the Faythe proceedings. The summonses had not been served within the required 12 months.
The Coleman proceedings were brought by David Coleman, John Joseph Murphy and Limestone Property Partnership. They seek, among other relief, referral of the dispute to arbitration or damages relating to the development. The Faythe proceedings were brought by the Maltings management company and seek damages for alleged negligence in the design and construction of the apartments.
Mythen argued that the parties’ conciliation process could not explain why the summonses were not served before their service periods expired. It also claimed that the delay could harm its defence, including through faded witness evidence, difficulty obtaining discovery and the architects’ liquidation. The plaintiffs relied on correspondence showing that Mythen knew the proceedings had been issued and on the parties’ efforts to resolve disputes through conciliation. Faythe was not itself a participant in that process.
The judge found that the developers had established good reason for non-service. She considered the correspondence about conciliation, including Mythen’s request in March 2014 that claims be stayed while conciliation and, if necessary, arbitration proceeded, alongside the conciliation that ran for about 22 months and ended without resolution in October 2016.
For Faythe, the judge accepted that its position was less straightforward because it was not a party to the conciliation. However, Mythen knew of the Faythe proceedings during the summons period, and the judge found it reasonable in the circumstances for Faythe to await the outcome of the process involving the developers.
The court then considered the balance of justice. It found that Mythen knew the nature of the defect allegations and that the company had not identified specific evidence or witnesses made unavailable by the passage of time. The architects’ counsel told the court that the firm was insured and had served notices seeking indemnity or contribution from Mythen in both cases. The judge also took account of the prejudice Faythe said it would face if its claim became time-barred.
The court concluded that Mythen’s awareness of the claims and the absence of compelling evidence that it would be unduly hindered in defending them meant no substantial injustice arose from renewing the summonses. The relief Mythen sought in both applications was denied.