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16 April 2019
In a recent High Court decision, Power v Creed,(1) Judge Baker dealt with a claim of professional negligence. The claim arose from the retainer by a couple (the plaintiffs) of a chartered engineering firm (the defendants) regarding the construction of their home in 2005. The defendants brought a strike-out claim for a significant delay in the progression of the proceedings. Baker considered the established principles of striking out a claim. The court considered whether the delay was inordinate and whether the plaintiffs provided a satisfactory excuse for the delay. Baker also noted that the court must exercise a judgment on whether the balance of justice is in favour of or against the case proceeding.
The defendant sought to argue that he had suffered prejudice by having allegations of professional negligence hanging over him for several years and that he had to notify insurers of this fact on renewal. However, the court considered that the defendant had not shown evidence of any difficulty in obtaining professional indemnity insurance such that this was not sufficient to justify a full strike out. The court found that on the balance of justice, it would be unfair against the plaintiffs if the claim in its entirety was dismissed. However, the court dismissed the parts of the claim which were identified as being based on assurances and conversations, as even moderate memory loss of the conversations was likely to be highly prejudicial to the defendants.
On the facts of the case – and given special weight to the fact that the defendant was a professional person – the case was allowed to proceed on a limited basis.
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