Court Considers Where The Balance Of Justice Lies In Dismissing Claims For Delay

A recent decision(1) has usefully synthesised the principles applicable to dismissing claims for delay, which in this case had been brought by the seventh defendant. The decision also clarifies that the courts will engage in a case-by-case analysis of where the balance of justice lies, in terms of whether to allow a plaintiff to continue its claim or whether a defendant should not be obliged to defend proceedings which are not progressed with sufficient expedition.

Facts

The plaintiff purchased an apartment, in respect of which the seventh defendant (who had been retained as the structural and civil engineer on the development) had attested to the development's compliance with building regulations. However, the apartment had issues with cracked walls, ongoing water ingress and other continuing problems. The developer - the first defendant in the proceedings - had undertaken some remedial work in the development over the years, but went into liquidation in 2009. Before liquidation, proceedings relating to the defects had been issued in December 2007 and were served in October 2008. The seventh defendant entered an appearance in November 2008 and requested delivery of a statement of claim. However, no steps were taken by the plaintiff until May 2010, when a notice of intention to proceed was filed. The notice was not served until August 2011. In February 2012 the plaintiff's solicitors indicated that the statement of claim was being finalised and was ultimately delivered in May 2014. Ten months later, the seventh defendant issued a motion to dismiss the proceedings on the basis of inordinate and inexcusable delay with regard to the institution and prosecution of the proceedings. He contended that a fair trial was impossible, and that it was unfair and unjust to require him to address issues which had arisen so far in the past. He referenced the liquidation of the developer and suggested that his own papers "may not be complete", which vague assertion the court found to be weak.

Impugned delays

The seventh defendant's motion was founded on three aspects of delay: • pre-action delay; • delay in serving the summons; and • delay in serving the statement of claim.

Pre-action delay Although the seventh defendant's involvement in the development ended in 2000, the plaintiff bought her apartment only in 2002 and proceedings issued in late 2007. The court concluded that although this was close to the expiry of the limitation period, the plaintiff was...