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Cite as: [1996] IEHC 32

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James McMahon Ltd. v. Michael Lynch Ltd. [1996] IEHC 32 (20th November, 1996)

THE HIGH COURT

1993 No. 1255P

BETWEEN

JAMES McMAHON LIMITED AND BEDFORD ROW INVESTMENT LIMITED

PLAINTIFFS

AND

MICHAEL LYNCH LIMITED

FIRST DEFENDANT

AND

MICHAEL G PUNCH, JOSEPH F MURPHY, J KEVIN CLANCY, PAT B HANLEY, T/A MICHAEL PUNCH AND PARTNERS

SECOND DEFENDANT

Judgment of Mr Justice Feargus M Flood delivered the 20th day of November 1996.

1. This matter comes before the Court on foot of a Notice of Motion dated the 21st day of October 1996 seeking an Order

(1) granting the First Named Defendant leave to amend its defence by the addition of the following paragraphs:

14. The First Named Defendant's liability to the Plaintiff herein was governed exclusively by the terms of the building contract entered into between the First Named Defendant and the Second Named Plaintiff in or about the month of July 1992 and any liability for damages for delay was confined to liquidated or ascertained damages under the aforesaid building contract. Such liability does not arise in the circumstances as Messrs Newenham Mulligan and Associates, Architects on behalf of the Plaintiffs, extended the contract period and declined to apply the provisions of the contract relating to the awarding of liquidated and/or ascertained damages as against the First Named Defendant. In addition and in the alternative, the Plaintiffs' claim (if any) as against the First Named Defendant has been compromised and/or waived and the Plaintiffs are estopped from maintaining this action as against the First Named Defendant. The basis of the said compromise or waiver is set out in a letter dated the 19th March, 1993 from the said Architects to the First Named Defendant.

15. The loss in respect of which the Plaintiffs claim damages allegedly resulting from the delay in completion of the building contract is too remote at law and is not recoverable and in the premises the First Named Defendant has no liability in respect of the loss or damage claimed.

2. On the matter being opened to the Court, a further application was made pursuant to Order 34 Rule 2 of the Rules of the Superior Courts for the trial of an issue in terms following:-

"Are not the Plaintiffs precluded from claiming damages in tort for alleged economic loss purportedly due to non-completion of the building works on the stipulated completion date by reason of the express contractual provisions of clauses 29 and 30 of the Building Agreement made the 2nd day of July 1992 covering damages for non-completion delay and extension of time for completion."

3. The action in this instance is in essence a claim for damages by the Plaintiffs against the First and Second Named Defendants for damages for the negligent planning and execution of certain building works in the City of Limerick. The Second Named Defendants have admitted liability but claim an indemnity and/or contribution from the First Named Defendants.

4. In my opinion this application comes very late in the day and no reason is forthcoming as to why the application is made so late in the progress of the action.

5. In my opinion the actual amendment of the Pleadings is unnecessary as, if the point being made is well founded in law (and I make no comment whatsoever in this regard), the Defendants will be able to avail of it in the course of the ordinary hearing of the issues which arise in this case. I accordingly decline to grant the amendment.

6. With regard to the application for a preliminary issue, the very nature of this case is such as to render it unsuitable for preliminary issues. I take on board in coming to this conclusion the caveats expressed by Mr Justice Kenny in Tara Mines v. Minister of Industry and Commerce 1975 IR at 242. Mr Justice Kenny in that decision cited with approval the decisions of Evershard M.R . and Harmon L.J. in Windsor Refrigerator Company Limited v. Branch Nominees Limited 1961 Ch 375. Lord Evershard M.R. in the course of the said judgment said "I repeat what I said at the beginning as the course which this matter has taken emphasises as clearly as any case in my experience has emphasised, the extreme unwisdom - save in very exceptional cases of adopting this procedure of preliminary issues my experience has taught me (and this cases emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round".

7. In the same decision Lord Justice Harmon says "the number of conditions he (the Master of the Rolls) has found it necessary to use to fence in the expression of this Court's opinion shows at once the undesirability of this kind of procedure". It is highly undesirable that a Court should be constrained to tie itself in so many knots and at the end merely say "well, if this was thus then that was so." I accordingly decline both applications and I reserve the costs to the trial judge.