High Court: Woman can continue with personal injury claim against companies involved in Dublin development

About this case:

• Citation:
  [2018] IEHC 432
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Faherty

The woman, who bought an apartment in the development in 2005 alleges personal injury arising from lack of insulation, is one of eight people from the same complex who have commenced proceedings against the developers.

While allowing the woman’s claim to proceed, Ms Justice Mary Faherty granted an application to dismiss a separate claim brought by the woman’s husband on grounds of culpable delay.

Personal injury proceedings

In 2005, Lynette Kilroy purchased an apartment in a development in Stepaside, Dublin, which she alleges had various defects causing dampness, condensation and mould growth. She contended that the property was inadequately insulated and/or the floor did not have a proper damp proof membrane, that this caused asthma and sinusitis, and claimed damages for personal injuries along with special damages for remedial work.

The defendants in the present proceedings were:

• - the building contractors– Glenford Builders Ltd (now dissolved);
• - a contractor engaged by Glenford – Eamonn Hassett and Company Ltd (in voluntary liquidation);
• - the engineers responsible for the structure – Burroughs Design Partnership (Ireland) Ltd (trading as Burroughs);
• - and the architects for the project – Frank Elmes and Charles D Elmes (trading as Frank Elmes Architects).

Ms Kilroy commenced the present proceedings by way of a personal injuries summons against Glenford in 2009, and the rest of the defendants were joined in 2010.  In her amended personal injuries summons, Ms Kilroy claimed “that she suffered personal injuries, loss, damage, inconvenience and expense as a result of, inter alia, the negligence and breach of duty including breach of statutory duty, nuisance, breach of contract and misrepresentation and/or negligent misstatement of the defendants, their respective servants or agents”.

Ms Kilroy’s husband, Paul Gray purchased an apartment in the same complex, and commenced the present proceedings against the same defendants in 2011.

Application to dismiss

Hassett, Burroughs, and Elmes brought an application to dismiss the plaintiffs’ claims for want of prosecution and/or inordinate inexcusable and prejudicial delay. They assert that Ms Kilroy has failed to take any step in her proceedings since 2012, and that Mr Gray has failed to serve a statement of claim despite numerous requests.

Justice Faherty first considered the fundamental principles of applications such as the present, as set out in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; and Flynn v Minister for Justice [2017] IECA 178.

Justice Faherty said that it was not disputed that the delay in both Ms Kilroy’s case, and in Mr Gray’s case, was inordinate. Considering Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510, Justice Faherty was also no satisfied that notices of intention to proceed issued by Ms Kilroy and Mr Gray did not constituted a step in the proceedings. Further, Mr Gray had offered “little excuse for the delay in advancing his proceedings, such that his delay is inexcusable”; whereas Ms Kilroy “…set out on affidavit a number of factors which she says accounts for the delay in the progressing of her proceedings”.

Considering Ms Kilroy’s claim, Justice Faherty accepted that a level of prejudice arose for Burroughs and Elmes arising from the manner in which Ms Kilroy’s case was progressed.

However, Justice Faherty said that the Court also had to give weight to the nature of the proceedings and to Ms Kilroy’s claim (yet to be substantiated) that the home she bought in 2005 has been beset with problems arising from a lack of insulation.

Having weighed all relevant factors, including that Ms Kilroy, from an early stage, endeavoured to seek to rectify the defects in her apartment (including liaising with Glenford and engaging experts from a relatively stage), and while accepting that the delay since 2012 was inordinate and for the most part inexcusable; Justice Faherty found that “the balance of justice is best served” by letting Ms Kilroy continue with her proceedings against Burroughs and Elmes, subject to Ms Kilroy’s “undertaking to move with expedition and to adhere to a strict timetable regarding outstanding replies to particulars and discovery issues”.

Considering Mr Gray’s claim, Justice Faherty said that she was not persuaded by Mr Gray’s submission that if Ms Kilroy’s case was allowed to continue so then so should his.

Justice Faherty stated that by allowing Mr Gray to progress his case, this would cause prejudice to Burroughs and Elmes “…if only by dint of their having to now face into the processes which advancing his case would necessitate”. While accepting that this may be “modest prejudice”, Justice Faherty said that it was “sufficient to weigh the balance of justice in the defendants’ favour” in the face of Mr Gray’s culpable delay, particularly his failure to deliver a statement of claim. 

In summary, Justice Faherty denied the application to dismiss in Ms Kilroy’s case, but granted the application in Mr Gray’s case.

• by Seosamh Gráinséir for Irish Legal News

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