The High Court has refused an engineer’s application to strike out a couple’s claim over alleged defects in their home, despite finding that the plaintiffs’ delays were inordinate and inexcusable.
Mr Justice Noonan ruled on 25 June 2019 that the balance of justice “just about” favoured dismissing the motion. He directed that the case proceed with speed and said he would bring it immediately into case management so it could be brought to trial at the earliest opportunity. The ruling decided only the delay application; it did not determine whether the defendants were liable for the alleged defects.
Des and Anne Cavanagh say structural and other defects appeared within months of their October 2006 building agreement with Spring Homes Developments Limited. Their statement of claim alleges that walls cracked, ceiling nails emerged and defects in the roof and floor structures were found. They also allege that the house was presented as having habitable rooms across three floors, including the attic, without planning permission for that arrangement. They say the house is uninhabitable and seek damages.
The couple’s claim against Martin Curran includes an allegation that he negligently certified compliance with planning permission and building regulations. Curran denies liability and says his opinions were given as an employee of Keough Curran Ltd for the benefit of the building company, not for the plaintiffs to rely on. The judgment records that the extent of his dispute with evidence about his involvement in the company was unclear; the judge said the evidence appeared to suggest he was likely its guiding mind.
The judge identified unexplained gaps in the case’s progress, including a period of about 15 months after replies to particulars in March 2012 and a further gap of about nine months in 2013–14. He said the delay after the plaintiffs’ solicitors said in June 2014 that they were setting the case down continued until Curran’s motion in April 2018. The explanations offered, including the preparation of engineering reports and the first plaintiff’s ill health, were not satisfactory in the judge’s view.
However, the judge considered the claim’s documentary and expert evidence important: whether the compliance certificates were negligent would largely turn on records and expert reports, rather than recollections alone. He also found no credible specific prejudice beyond Curran’s argument that delay harmed his prospects of recovering from the company. The judge considered that argument unimpressive in light of Curran’s involvement with the company and earlier indications that it was insolvent.
Striking out Curran would, the judge said, leave the plaintiffs without a remedy for alleged defects so serious that they had been unable to live in the family home for years, despite remedial works. The motion was therefore refused, and the underlying claim remained to be tried.