The Court of Appeal has dismissed Eddie Gibbons’s appeal against an order striking out his claim against N6 (Construction) Limited, finding that prolonged, inexcusable delay and prejudice to the company meant the case should not proceed against it.
The judgment, delivered by Mr Justice David Barniville on 16 May 2022, upholds the High Court’s decision. The Court of Appeal said the more appropriate form of order would have been to dismiss the claim rather than strike it out, but that distinction did not affect the appeal. It also said its findings concerned N6 only. Galway County Council had made no application to dismiss, and the court made no determination about the claim against the Council.
Gibbons alleges that construction of the M6 motorway and associated works altered groundwater and surface water flows, causing his property near Athenry, County Galway, to flood during heavy rain. He says flooding began in November 2009 and that he had to live elsewhere for about a year from October 2011. N6 and the Council deny responsibility in the claim; N6’s defence also pleads contributory negligence. These allegations have not been determined at trial.
The proceedings began in March 2012. Gibbons conceded on appeal that he was responsible for inordinate and inexcusable delay. The court agreed with the High Court that the delay extended across the period from the start of the proceedings until N6 applied to dismiss the claim, and noted further delays in the appeal. It found N6’s late delivery of its defence, in February 2019, did not materially prevent Gibbons from advancing the case: N6’s solicitor had mistakenly believed the defence had already been filed, and N6 had repeatedly pressed for progress.
The court accepted that engineering evidence would be important, but said the case might also depend on witnesses and records relating to the design and construction works, earlier ground conditions and subsequent changes. It did not find that a fair trial would be impossible. However, it held that N6’s position as a non-trading company formed to build the motorway, the difficulty of tracing former employees, the burden of remaining in existence while litigation continued, and other factors amounted to sufficient prejudice under the applicable test.
The appeal was dismissed and the High Court order affirmed. The Court of Appeal indicated that Gibbons should pay N6’s appeal costs, subject to adjudication if the parties could not agree. He could seek a short hearing to argue for a different costs order within 14 days of the judgment. The judgment does not resolve the separate claim against the Council.