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High Court, in proceedings in which the plaintiff alleges that the fourth defendant, an architectural technician, was negligent in furnishing a certificate that a building complied with the retention permission that had issued in respect of that development and, in particular, in failing to inform him that the buildings, as constructed, extended beyond the folios that he owned, refuses an an application to strike out the action as against the fourth defendant, on the grounds that: an expert report clearly establishes that there is a basis for arguing that the fourth defendant acted negligently in providing the certificate; there were considerable factors which excuse the delay in commencing the proceedings; and even if the delay is held to be inordinate and inexcusable, the balance of justice is in favour of allowing the action to proceed for a number of reasons, including the fact that the fourth defendant has not suffered any forensic prejudice as a result of the dey.
Application by the fourth defendant for an order pursuant to O.19, r.28 of the Rules of the Superior Courts, to strike out the plaintiff’s action against him as failing to disclose a cause of action and as being bound to fail - fourth defendant also seeks to have the action against him struck out pursuant to O.122, r.11 and pursuant to the inherent jurisdiction of the court, on grounds of delay and want of prosecution - plaintiff purchased a petrol station in in 1993 - in 2004 he purchased an adjoining site, on which there was a substantial building, consisting of seven commercial units - the building on the site had planning difficulties - did not accord with the plans that had been submitted and on which planning permission had been obtained - subsequently transpired that the building as constructed, extended beyond the two folios which the plaintiff had purchased in 2004 - fourth defendant is an architectural technician - retained by the plaintiff to furnish a certificate in 2008, confirming that the buildings which had been constructed on the land following a fire in 2006, complied with the retention permission that had issued in respect of that development - certified that the building as constructed, complied with the terms of the retention permission and came within the boundaries of a map that was edged in red annexed, to the certificate - plaintiff alleges that the fourth defendant was negligent in and about the furnishing of that certificate and in particular, for failing to inform him that the buildings as constructed, extended beyond the folios that he owned - where case discloses a cause of action - whether action is bound to fail - whether delay is inordinate and inexcusable - balance of justice - whether prejudice to defendant.
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