Neutral Citation No:  NICA 12
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
STEPHENS LJ (delivering the judgment of the court)
Failure to comply with the Practice Direction 1 of 2016 and with the court's directions
(a) From information provided it appears that the structural package for the building control application was prepared in early 2004 and that work on the site started in mid 2005. Mr Murphy explains that during April 2006 he was continually highlighting what he seen as breaches to his specification. By the end of that year the matter was developing to an impasse.
(b) Relationships clearly deteriorated from this point onward with a considerable volume of technical literature being exchanged between the parties. Mr Murphy refers to Mr Walsh as a lay client. I would suggest that in light of the dossier he compiled and the arguments he put forward that he was a knowledgable client with considerable experience in construction.
(c) The letter from Fermacell that both Messrs Murphy and McGuiness referred to was written in September 2007.
(d) While this letter does not claim to hold compliance with BS 5268-6.1, a point accepted in my report, it did not state that the product was unsuitable as a sheathing material or that it would not supply the required racking resistence. Rather it explained that the standard did not include a classification for gypsum fibreboards. It then compares the results of Fermacell tests (reference MT1079a) with plasterboards that are classified and suggests that these test values be used calculating racking resistence in accordance with Section 5 when the tested figures should be used.
(e) All parties involved in the technical assessment of this matter agree that a BBA Certificate was awarded at the end of April 2008.
(f) My report was written and released on 16 December 2009. The DCE report was issued on 3 September 2009 by Mr McGuinness after a briefing meeting with Mr Murphy's solicitor. How then can Mr Murphy claim that his solicitor was forced to engage another engineer as a result of my doing?
This at its mildest is unfair. References to his solicitor's correspondence demonstrates where the pressure was coming from in relation to expert's reports.
The decision at first instance
(i) Want of prosecution by the appellant of his application for judicial review. The proceedings were commenced on 14 June 2012. The learned judge found that there was a period of inertia until early 2017 a period of some 4 years. The learned judge considered that there was no sensible distinction between expeditious initation of judicial review proceedings and expeditious prosecution of those proceedings. On that basis he refused the application for leave to apply for judicial review.
(ii) The second ground was on the basis of the merits of the application. Assuming that the decision of the proposed respondent was justiciable then it was only justiciable on Wednesbury grounds. The learned judge held that the evidence assembled by the appellant duly supplemented by his arguments fell measurably short of establishing an arguable case of irrationality.
The grounds of appeal
"Unfair treatment and prejudice/discrimination by the courts against the appellant acting in person while ignoring the merit, significance and public interest/importance of their applications."
"Malfeasance in public office by court officials and members of the judiciary."