The High Court has refused a defendant’s application to set aside a second order renewing the time to serve a plenary summons in a case over alleged defects in an apartment, including fire safety and sound transmission.
The motion was brought by the sixth named defendant, Kingspan Century Limited. The plaintiff, Graham Gibbons, alleges the apartment is a fire hazard and cannot be inhabited, sold or rented. Those claims remain allegations; the court was dealing only with whether the renewed summons should stand.
The summons was issued in November 2012 but was not served within the required 12 months. A first renewal order, made in March 2014, allowed a further six months for service. The sixth defendant first learned of the contemplated proceedings on 3 September 2014. Service was attempted by post on 10 September, the last day of the renewal period, but the summons arrived the following day. The plaintiff’s solicitor later attributed the choice of post to an administrative oversight.
A second renewal order was granted by the High Court on 22 September 2014. The sixth defendant sought to set it aside, citing the passage of time, a six-year document-retention policy and former project employees who had left the company. The plaintiff relied on the complexity of the case, a change of solicitor, the attempted service within the renewal period and the defendant’s response to the proposed proceedings.
Justice Ní Raifeartaigh said the overall delay and the incomplete explanation for waiting until the last day weighed against the plaintiff. But she considered the defendant’s 10-month delay in bringing its motion, its September 2014 correspondence indicating a willingness to accept service and suggesting an application to regularise the position, and the attempted service within time to be significant factors. The court found the claimed prejudice from missing documents and former employees had not been established on the evidence then available. The apartment and timber structure could still be inspected.
The court upheld the second renewal order and refused the relief sought. It did not decide the underlying negligence claim or determine whether the alleged defects existed. The judge said the ruling was confined to the renewal issue. After pre-trial preparation and discovery, the sixth defendant may seek appropriate relief if there are grounds to believe that continuing the case creates a real risk of an unfair trial.