The High Court has refused to dismiss a professional negligence case over a property valuation, despite finding that some of the plaintiff’s delay was inexcusable.
The defendant, Edward Paul Nugent Limited, had applied to have the proceedings dismissed for want of prosecution. The case was brought by Mars Capital Ireland DAC, which had been substituted for the original plaintiff, Irish Nationwide Building Society (INBS), after the rights to the proceedings were transferred through a series of financial arrangements.
The claim concerns a valuation report issued in November 2006 for property at Cappog, Ballinode, County Monaghan. The statement of claim alleges the report valued the property at €800,000, overstating its true value. It says a €220,000 loan was advanced on the strength of the valuation, in addition to an earlier €400,000 loan secured on the property, and alleges negligence, negligent misstatement and breach of contract. These allegations have not been determined. The defendant’s pleaded case is that it was instructed to value the property based on its development potential, including the prospect of permission for eight houses.
The proceedings began in July 2009. After the defendant delivered its defence in November 2010, the plaintiff did not take further steps to advance the case, and the defendant’s April 2011 request for voluntary discovery went unanswered. The court considered the subsequent transfer of INBS’s functions to Irish Bank Resolution Corporation, its liquidation, and the transfer of the relevant rights to Sandalphon/Mars. It also noted that the defendant did not renew its effort to progress discovery or the case until 2015.
The judge found periods of inexcusable delay, including the failure to respond to the discovery request and the later failure to promptly seek Mars’s substitution or address discovery. However, she was not persuaded that the balance of justice favoured dismissal. The defendant’s concern that Mars could not provide discovery was not, in the judge’s view, supported by evidence that the relevant files no longer existed. Nor was there evidence that the defendant’s representative, Mr Nugent, could not give evidence or access his own file. The court concluded there was no substantive risk that a fair trial could not take place.
The court therefore declined to strike out the claim. It directed the plaintiff to file its reply to the defence forthwith, treated the defendant’s 2011 voluntary discovery request as a motion for discovery, and ordered the plaintiff to make discovery within six weeks. Any discovery sought by the plaintiff from the defendant was to be requested within one week. The judgment did not decide the underlying valuation dispute.