The High Court has cleared the way for a woman to continue her damages claim over alleged defects in a south county Dublin apartment bought by her during the ‘Celtic Tiger’ years.

Ms Justice Mary Faherty said a similar, but separate, claim by the woman’s husband about another apartment owned by him in the same complex cannot proceed because of inordinate and inexcusable delay progressing that.

Lynette Kilroy and Paul Gray had sued Glenford Builders Ltd, Eamonn Hassett & Company (in voluntary liquidation), Burroughs Design Partnership (Ireland) Ltd, and Frank and Charles D Elmes, trading as Frank Elmes Architects, over alleged defects in apartments at a 132-unit development Cruagh Wood Stepaside.

The defendants allegedly carried out various works in relation to the properties, which were purchased by the couple in 2005.

Alleged dampness

Among the claims, it is alleged the properties were inadequately insulated, and the flooring lacked a proper damp-proof membrane, allegedly resulting in dampness, condensation and mould growth.

Ms Kilroy claims her health suffered as a result of the condition of the apartment.

The first defendant, who have ceased trading, were a building contractors who entered into contracts with the plaintiffs. The second defendant, in voluntary liquidation, was a contractor engaged by the first defendants.

In pre-trial motions, Burroughs, an engineering firm, and the architect defendants, sought to have both actions struck out over alleged inordinate and inexcusable delay in progressing their claims.

They argued the delay had prejudiced them for reasons including the death of a person who had worked on the properties.

Lawyers for Ms Kilroy argued her claim should be allowed proceed, arguing the delay was not inexcusable for reasons including her illness and life events.

Ms Kilroy also said she had changed her legal team, as her previous lawyers had not progressed matters, and was now getting her claim moving as quickly as possible. In addition, lawyers for Mr Gray argued his case should be allowed to go ahead.

Ms Justice Faherty said while there was an inordinate delay by Ms Kilroy the balance of justice favoured letting her bring her claim to trial on the basis the matter is progressed quickly.

Delay

There was some prejudice caused by Ms Kilroy’s delay but the court had to give weight to the nature of the claim, she said. Ms Kilroy had from an early stage sought to address the alleged problems at her property, she added.

She did not accept the defendants did not know the case against them or the death of a witness was sufficiently prejudicial. The court did not accept life events, such as the plaintiff’s wedding, could be taken into account but did attach some weight to Ms Kilroy having been ill for about a year.

In relation to Mr Gray’s case, the judge said he had delayed considerably in advancing it and allowing him to progress it would be prejudicial to Burroughs and the architects. His claim was commenced in 2011, some two years after Ms Kilroy’s, and he had not advanced a statement of claim. She was not persuaded by arguments that his case should be allowed proceed if his wife’s case was doing so.