High Court of Ireland Decisions
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Cite as: [2014] IEHC 610
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Judgment
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Neutral Citation: [2014] IEHC 610 THE HIGH COURT [2010 No. 10994 P.] BETWEEN LIAM BRANDLEY AND WJB DEVELOPMENTS LIMITED PLAINTIFFS AND
HUBERT DEANE T/A HUBERT DEANE AND ASSOCIATES AND JOHN LOHAN T/A JOHN LOHAN GROUND WORKS CONTRACTORS DEFENDANTS JUDGMENT of Mr. Justice Barr delivered on the 28th day of November, 2014 1. In this application, the first named defendant seeks an order dismissing the plaintiffs’ case against the first named defendant, same having become statute barred as against the first named defendant. 2. The action arises out of the construction of two properties situate at Nos. 2 and 3 Sycamore Crescent, Williamstown, Co. Galway. There was also a third dwelling, No. 1, of which more will be said later in the judgment. The plaintiff was the developer of three townhouses at the said location. He engaged the first named defendant, a consulting engineer, to supervise and certify the construction works. The second named defendant was engaged to do works in relation to the foundations of the property. 3. The three houses were developed in early 2004. The raft foundations for the three houses were completed in March 2004. These works were carried out by the second named defendant. The work was inspected by the first named defendant. 4. By letter dated 5th April, 2004, the first named defendant stated as follows to the manager of Allied Irish Bank’s branch in Castlerea:-
I have inspected the development at the above location and in my opinion the construction thereof complies substantially with the layout presented to the planning authority and also complies substantially with the new building regulations.” 6. On 4th September, 2004, the first named defendant issued a Certificate of Supervision in relation to Nos. 2 and 3 of the development. At para. 2 of the certificate, the first named defendant stated as follows:-
8. This represents the last involvement that the first named defendant had in relation to the properties. 9. The property at No. 1 Sycamore Crescent had been sold to a Mr. Aiden Connelly. He discovered defects in the property and instituted proceedings against the plaintiff in these proceedings, and against the first and second named defendants. That action was heard over three days on 14th, 15th and 16th November, 2011. The plaintiff succeeded as against the second and third named defendants, being the first and second named defendants in these proceedings. His claim against the first named defendant (the plaintiff herein) was not successful. 10. The first named defendant in the present application is seeking an order striking out the plaintiffs’ claim against it on the basis that their claim as against the first named defendant is statute barred. The first named defendant submitted that as the last involvement of the first named defendant in relation to the properties, was the issuance by him of the certificates on 4th September, 2004, even assuming that he was negligent in the supervision of, or certification of the works, any proceedings against him would have become statute barred as and from 3rd September, 2010. 11. The plenary summons in this action was not issued until 30th November, 2010. In their statement of claim, the plaintiffs allege that the foundations in each house were defective. 12. The first named defendant submits that if the first named defendant was negligent in his supervision and certification of the works, the breach of contract and tort of negligence occurred at that time. It was irrelevant that the damage to the property may not have become discoverable until some later date. 13. In this regard, the first named defendant relied on the decision in Hegarty v. D. & S. Flanagan Brothers Ballymore Limited and Ors [2013] IEHC 263, and in particular to the following portion of the judgment of Birmingham J.:-
‘The fundamental principle is that words in a statute must be given their ordinary meaning and, for myself, I am unable to conclude that a cause of action accrues on the date of discovery of its existence rather than the date on which, if it had been discovered, proceedings could lawfully have been instituted. I recognize the unfairness, the harshness, the obscurantism that underlies this rule, but it is there and will remain there unless qualified by the legislature or invalidated root and branch by this court.’”
17. In response, the plaintiffs state that there is a conflict of facts between the plaintiffs and the first named defendant in relation to when the damage was actually caused to the plaintiffs’ properties. In these circumstances, they submit that it is not appropriate to determine the matter on affidavit evidence. They point out that in the Murphy case, cited above, there had been an agreed statement of facts which had enabled the judge to determine the matter by reference to the statement of agreed facts and the pleadings, without the need for oral evidence. 18. The plaintiffs submit that based on their expert evidence that the damage to the property occurred some time after completion of the property in December 2004, and probably in August 2005. They set out their objection to the matter preceding to a determination on affidavit at para. 7 of the affidavit of the plaintiffs’ solicitor sworn on 15th September, 2014, as follows:-
20. I am of opinion that where there is a factual dispute between the parties, such as to when the actual damage occurred to the property, such dispute cannot be determined on affidavit evidence. It will be necessary for the court to hear oral evidence from the parties and from their expert witnesses prior to reaching any conclusion on the Statute of Limitations point. 21. Accordingly, I refuse the first named defendant’s application to have the plaintiffs’ action dismissed as being statute barred against the first named defendant. This is due to the fact that such issue cannot be determined on the basis of the affidavits currently before the court. However, the plea can remain as a live issue in the defence of the first named defendant. It can be determined as part of the defence at the trial of the action. 22. The first named defendant in its notice of motion actually sought an order directing the trial of the preliminary objections raised in its defence by means of a preliminary issue directed pursuant to O. 25 of the Rules of the Superior Courts 1986, as amended. I have considered whether the defendants’ objections should be tried as a preliminary issue. It seems to me that as virtually the same evidence would be called on the trial of the preliminary issue as in the main action, it is preferable that the Statute of Limitations plea should be determined at the trial of the substantive action. This is all the more appropriate as I have been informed that the action is due for hearing in December 2014. Although the first named defendant has indicated that he will be applying for an adjournment due to an impending medical operation on the same date. 23. The first named defendant also raised the fact that the plaintiffs’ claim should be dismissed on grounds of delay in prosecuting the proceedings. By letter dated 15th November, 2010, the solicitor for the first named defendant wrote to the plaintiffs’ solicitor in the context of the proceedings being brought by Mr. Connelly. In the course of that letter, the defendants’ solicitor stated:-
• 13th December, 2010 - appearance entered on behalf of first named defendant • 9th March, 2011 - plaintiffs deliver statement of claim • 5th March, 2012 - motion seeking judgment in default of defence as against both defendants • 14th March, 2012 - motion for judgment was adjourned to 30th July, 2012 • 25th July, 2012 - defence of the second named defendant was filed • 25th July, 2012 - second named defendant serves notice of indemnity/contribution • 30th July, 2012 - both defendants given time for late filing of defence (not necessary as against second named defendant) • 11th October, 2012 - warning letter to first named defendant regarding its defence • 15th November, 2012 - defence of the first named defendant delivered • 14th November, 2012 - first named defendant issues notice of indemnity/contribution • 13th July, 2013 - first named defendant seeks voluntary discovery • 3rd March, 2014 - voluntary discovery made by the plaintiff • 30th April, 2014 - plaintiffs lodge a reply to first named defendant’s defence • 1st May, 2014 - notice of trial served • 14th July, 2014 - voluntary discovery made by first named defendant • 15th July, 2014 - the present motion was issued 26. Finally, the plaintiff suggested in the supplemental affidavit of Ciaran Madigan sworn on 15th October, 2014, that the first named defendant should not be allowed to resist judgment on the basis that the liability issues between the plaintiff and the defendants were determined in favour of the present plaintiffs in the proceedings brought by Mr. Connelly. 27. I do not think that such plea is well founded. Firstly, the parties in this action are different to the Connelly action. There, Mr. Connelly had carriage of the proceedings as the plaintiff. We do not know what case he made against the defendants. It would not be fair to saddle the first named defendant with liability due to the fact that the plaintiff in that action did not succeed against the present plaintiff, but did succeed against the present defendants. Secondly, the issues are not identical, due to the fact that the first named defendant has raised the defence under the Statute of Limitations, which was not available to him in the Connelly action. In these circumstances, I am satisfied that the issues between the parties in the within proceedings are not res judicata. |
