The Court of Appeal has dismissed an appeal by hotel owner Tom Tanner against the High Court’s decision to strike out his negligence and breach of contract proceedings against two architects and a consulting engineer over the construction of a hotel in Clonakilty, Co Cork.
In a judgment delivered by Mr Justice Gerard Hogan on 24 February 2015, the court concluded that the delay in pursuing the claim was inordinate and, for the most part, inexcusable. It also found that the balance of justice favoured dismissal. The appeal concerned the High Court’s 2010 orders striking out the proceedings for want of prosecution; the Court of Appeal did not determine whether the professional negligence allegations were true.
Tanner had retained Aidan and Elaine O’Donovan, trading as Construction Design Studio, as architects in 1997, and Timothy P. Murphy as a consulting engineer. His claim alleged professional negligence, breach of contract and negligent misstatement in connection with the hotel’s construction. The premises were completed in March 1999 and sold in late 2001 for €1.7 million. The proceedings, seeking approximately €1.3 million in damages, were issued in September 2003.
The judgment records repeated applications by the defendants to compel steps in the case or address failures to comply with orders. The appeal court noted that the case had not been set down for trial by September 2009 and that Tanner had taken no active steps for a year, apart from responding to motions brought by the first and second defendants. The court also considered that proceedings were started several years after the alleged problems emerged, making it particularly important for Tanner to advance the case promptly.
The court acknowledged delay by Murphy in delivering a defence and described the conduct of both Tanner and Murphy in that respect as unsatisfactory. It said, however, that the defence delay did not excuse Tanner from prosecuting the case, particularly after the other defendants had delivered their defence.
In assessing prejudice, the court noted that the case depended substantially on disputed oral evidence about an alleged oral agreement and professional services. The main electrical contractor and lighting contractor had died, and an employee of the architects had emigrated. Hogan J. said the passage of time was likely to impair witnesses’ recollections. The judgment also considered the potential impact of longstanding professional negligence proceedings on the defendants’ reputations.
The Court of Appeal held that the High Court was right to dismiss the proceedings and dismissed Tanner’s appeal. The underlying allegations were not tried or decided on their merits.