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1. This matter comes before the Court by way of Notice of Motion of the first named Defendants seeking an Order dismissing the Plaintiffs claim against the first named Defendant for want of prosecution and by reason of the inordinate and inexcusable delay on the part of the Plaintiff in commencing and prosecuting these proceedings.

The Plaintiff is a limited company and is a specialist demolition contractor. The first named Defendant was at all material times the main contractor for works being carried out for and on behalf of the second named Defendant. The second named Defendant are manufacturers with a facility in the industrial estate at Shannon Airport. The third named Defendants are Consulting Civil and Structural Engineers and the Plaintiff claims were at all material times acting in that capacity in connection with a contract that was entered into on the 6 July 1988 for the demolition work at the second named Defendant's premises. It is claimed that the first named Defendant were the main contractors for this work.

The Plaintiffs claim may be summarised as follows: It is said that on the 6 July 1988 it entered into a contract to carry out demolition work at De Beer's premises at Shannon Airport. This work involved the demolition of certain concrete pits. The Plaintiff claims that this contract was made orally and partly evidenced in writing by a letter of the 24 June 1988 together with quotations in writing dated the 24 June 1988 and certain drawings (5 168/22) dated the 19 June 1969. The price to be paid for this demolition work was agreed at £35,500 stg.

The Plaintiff claims that it entered into the contract on the basis of representations which were made by the Defendants in relation to the quality and depth of the concrete in the pits. The Plaintiff claims that it commenced working on the contract on the 18 July 1988 but as a result of the initial drilling work it was discovered that the concrete was considerably thicker than had been represented by the Defendants. As a result it was found that the drill bits ordered for the job were too short and that a number of other features were not shown in the drawings. The Plaintiff says that it advised the third named Defendant of the difficulties and further site meetings resulted. It says that as a result of these site meetings a new arrangement was come to whereby it was agreed that additional monies would be paid to carry out the work and the claim is in respect of the sum of £77,576.13 stg, claimed to be due as damages for breach of contract, negligence or misrepresentation or in the alternative on a quantum meruit basis.

The relevant dates insofar as the Pleadings are concerned are as follows:

2. Accordingly, the first period to consider is the period between the 15 August 1988 and the 6 July 1992 being respectively the date upon which the work was finished and the date upon which the Plenary Summons was issued (or the 22 March 1993 when the Plenary Summons was served).

Evidence has been given by Mr Frank Hughes in his Affidavit of the 8 December 1999 that the reason for the delay in serving the summons was that there were ongoing negotiations in respect of his claim for the payment of extra work and he says in his earlier Affidavit of the 7 July 1999 that he instructed his solicitors to withhold serving the proceedings as a result of these ongoing negotiations and meetings between the representatives of the Parties to try to resolve this dispute.

I accept that it is probable that this accounts for the initial delay and accordingly I am of the view that this should be disregarded.

The next period of delay is from the 22 March 1993 when the Summons was served up to the 9 February 1998 when the statement of claim was delivered (approximately 5 years). The explanation which has been offered for this delay is in part to be found in the Affidavit of Mr Donall King sworn the 8 December 1999. He says that the claim was a complicated one and it required consultation to prepare the Statement of Claim. These consultations were hampered because the Plaintiff was abroad regularly for considerable periods of time and he says the member of the staff in his office dealing with the file transferred from litigation to conveyancing with the unfortunate consequence that the file was misplaced for a considerable period of time. It is to be noted that not one but two notices of intention to proceed were served. One in March of 1995 and another in September of 1997. Even if it be correct that the file became temporarily misplaced and that Notice of Intention to Proceed was served on it being discovered, this still does not account for the period from March '95 to September '97 when the second Notice of Intention to Proceed was served.

Counsel for the Plaintiff has conceded, in my view correctly, that there was inordinate and inexcusable delay on the Plaintiffs part during this period. Even if this concession had not been made I am left in no doubt that having regard to the initial lapse of time between the completion of the works in August of 1988 and the service of the summons on the 22 March 1993 that this additional delay is entirely unreasonable inordinate and inexcusable. I am satisfied that whatever part of this blame may be accepted by the Plaintiffs Solicitors the Plaintiff itself must carry responsibility by reason of the fact that Mr Hughes was out of the country and apparently took no active steps to advance his claim.

Finding that, as I do, I next pass to consider whether the first named Plaintiff has suffered prejudice as a result of the delay and whether in the circumstances justice requires that the action be struck out.

There are two grounds relied upon by the first named Defendant. The first is that it is submitted that two essential witnesses have died. Mr Andrew Bradley died on the 1 March 1999 and Mr Michael Ledwidge on the 26 May 1997. He also says that a third vital witness Mr Michael Barrett is now over 70 years of age and is in poor health and is unlikely to be capable of giving satisfactory evidence. It is submitted that all of these witnesses would have been available if the action had been processed with due expedition and that as a result the first named Defendant has suffered such prejudice as it would be unjust to allow the action to proceed.

The second point that is made that by Order of the 29 July 1999 the action against the second and third named Defendants was struck out on the grounds of inordinate and inexcusable delay. The first named Defendant says that its role in this transaction was that of the main contractor and the role of the Plaintiff was a subcontractor. In these circumstances it says that the primary responsibility to pay the Plaintiff any sum due to it rests on the second named Defendant and not on it. It submits that since this Defendant has been discharged out of the action on the grounds of delay it is unjust and unreasonable that the action should be permitted to proceed against the first named Defendant since it leaves him carrying the full responsibility towards the Plaintiff.

It has been submitted on behalf of the Plaintiff that the first named Defendant has not suffered any prejudice because while Mr Ledwidge and Mr Barrett both participated in discussions at site meetings two witnesses are available namely Mr Talbot and Mr Gus Treacy both of whom are available to the first named Defendant and who will, presumably, be available to support whatever case the first named Defendant may make.

I have considered the Notice for Particulars and replies that have been delivered in this case. Having done so I am left in no doubt that the evidence of Mr Barrett and Mr Michael Ledwidge would, if available, be central to this entire transaction. It appears that these gentlemen "made the oral contract" with the Plaintiff on the 6 July 1988 (or at least this is claimed by the Plaintiff) and again Mr Michael Ledwidge is alleged to have been the person who made the alleged representations which formed the basis of the case. It is also alleged that Mr Andrew Talbot represented the first named Defendant at this site meeting.

With regard to Mr Gus Treacy it is submitted on behalf of the first named Defendant that he was not, as alleged, an employee of the first named Defendant but was at all material times a Director of a company called Treform Limited who was another subcontractor engaged to work on the site.

Mr Andrew Bradley was the first named Defendant's Managing Director and is stated by the first named Defendant to have been "the most senior member of the first named Defendant involved in these matters. He was, I say and believe, involved in a discussion between the Parties.

Accordingly, in the time between the service of the summons and the delivery of the Statement of Claim Mr Michael Ledwidge who, I have no doubt, would have been a vital witness died. In the following 12 months Mr Bradley died. As a result the Defendants will, at best, be able to call Mr Talbot in connection with this involved matter, I am of the view that to be deprived of essential witnesses in this way grossly prejudices the first named Defendant in the defence of their action and am satisfied that justice requires that the order as sought to be made.

With regard to the second point advanced by the first named Defendant (namely that since the action has been struck out insofar as the second and third named Defendant is concerned they have been prejudiced) I do not accept this point. It is open to the first named Defendant, in my view, to make a claim for contribution or indemnity under the third party procedure if the Plaintiff should succeed against it and if they are entitled to that relief. In my view the Order made by Ms Justice Carroll on the 29 July 1999 is of no relevance.

In my view the fact that site meetings are fully documented by minutes and the fact that these minutes may have been relied upon at an early stage by witnesses attempting to recollect the details of the transaction does not in my view provide an answer to the first named Defendant's prejudice.

I will accordingly make the Order sought.