High Court: Builder’s application to dismiss negligence claim brought by family who lost home is rejected

About this case:

• Judgment:
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According to Mr Justice Eagar, the builder himself had contributed to delay in the proceedings; and given the financial devastation of having to move from their home, it was understandable that the family found it difficult to the proceedings.

Background

In January 2012, Mr Joseph Arthur and his wife, Ms Deirdre Arthur, issued plenary summons against Mr Joseph Gorman claiming damages in respect of loss, damage and expenses arising from negligence, breach of contract and/or breach of duty.

The background to the pleadings arose from alleged defects in the design of the plaintiff’s family home by Mr Gorman.

Mr Gorman filed an appearance in March 2012 but Justice Eager noted that they had not yet delivered a defence.

The plaintiffs’ claim stated that they retained Mr Gorman from early 1999 to oversee the building of a family home, to ensure it was built correctly. They relied on Mr Gorman’s expertise in this regard.

The construction of the house commenced in June 1999 and was completed in December 1999.

Many years after moving in, the plaintiffs identified some dampness, which they assumed was a result of poor ventilation. The plaintiffs claim they were not aware that there was a fundamental defect in the design of their home at that stage. The dampness became a health issue, and as a result the plaintiffs were forced to move out of the house in September 2009 at considerable financial loss.

Because of this the plaintiffs commissioned reports, which indicated there was a problem with the foundations of the house. This was the first notification to the plaintiffs that there was a fundamental defect with the foundations of the home as a result of the negligence of Mr Gorman.

Application to dismiss

In the High Court, Mr Gorman made an application for:

Mr Gorman alleged that the plaintiffs failed to plead in their plenary summons or statement of claim the date of the alleged retainer between the plaintiffs and Mr Gorman. The plaintiffs indicate the retainer between the parties was concluded in early 1999 in their replying affidavit and the property was completed in late 1999 over eighteen years ago and some thirteen years prior to the issue of the plenary summons.

According to Mr Gorman, besides the issue of the statute of limitations, it is clear the plaintiffs were under an obligation considering the delay pre-commencement to the proceedings to prosecute their claim in a timely manner. Mr Gorman stated that since the institution of the proceedings in January 2012, there had been ongoing failure on the part of the plaintiffs to prosecute their claim.

The plaintiffs’ statement of claim was delivered in July 2012 but no further steps were taken thereafter by the plaintiffs. In 2014, Mr Gorman issued a motion seeking to dismiss the plaintiffs’ claim because no reasonable cause of action was disclosed and/or that their claim was bound to fail and/or was frivolous and vexatious.

The Court heard that it was only after the issuing of this application that steps were taken by the plaintiffs.

The plaintiffs say that they had to deal with difficult problems associated with their home and had to re-house themselves with four young children. They also claim they had to deal with socio-economic issues due to the burdensome financial catastrophe that occurred following from the defects with their home, within the context of the economic downturn.

As a result, they say they were unable to fund a legal team to take on the prosecution of the case.

Decision

The jurisprudence on dismissing actions for want of prosecution deals with the concepts of fairness and justice. The Court must balance the interest of both plaintiff and defendant and consider:

Sitting in the High Court, Mr Justice Eager explained that the principles were summarised in Primor plc. v. Stokes Kennedy Crowley 2 I.R. 459

The Court found that the delay was understandable, but nevertheless “even where the delay has been both inordinate and inexcusable, the Court must exercise a judgment on whether, in its discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case”.

The court was satisfied that the delay was inordinate but that the failure of Mr Gorman to issue a defence constituted a part of that delay.

In the circumstances, the Court exercised its discretion having regard to the constitutional principles of basic fairness of procedures, and allowed the plaintiffs to continue their claim against Mr Gorman subject to management by the High Court.