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Balance of justice narrowly in favour of not striking out claim in respect of defects in family home
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High Court dismisses application to strike out claim in respect of alleged faulty construction of a family home, on the grounds of delay in prosecution, finding that, while the delays could only be described as both inordinate and inexcusable, the balance of justice narrowly required the application to be refused as any prejudice to the defendant engineer was only assumed and not credibly identified, and the dismissal of the claim would result in the plaintiffs being left without any remedy in respect alleged defects so serious that they have been unable to live in their family home for many years.
Motion to strike out plaintiffs' claim on grounds of delay - claim against construction company and engineer - significant structural defects in house - allegation by plaintiffs that house uninhabitable - engineer seeking to strike out claim - whether engineer was in effect the builder and/or the guiding mind of the company - proceedings issued in June 2009 - application to dismiss on grounds of delay made originally in April 2018 - whether plaintiffs had been guilty of both inordinate and inexcusable delay and balance of justice favours dismissal of the claim - significant periods of delay by the plaintiffs - building contract case not normally expected to proceed with the same expedition as uncomplicated personal injuries claim - periods of delay inordinate and no satisfactory explanation had been forthcoming - although prejudice from delay assumed, no identification of any credible specific prejudice - to allow the motion would leave plaintiffs without any remedy in respect of family home - balance of justice narrowly favoured dismissal of the motion
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