High Court refuses strike-out and judgment in default motions in a personal injury claim for a capsized fishing vessel.

THE HIGH COURT

[2026] IEHC 409

[Record No. 2024/6010]

BETWEEN

AIDAN MCNALLY

PLAINTIFF

AND

OCEAN WELL LIMITED, OCEAN DRAGON LIMITED,

AND BING LIANG XIA

DEFENDANTS

JUDGMENT of Mr. Justice Barr delivered electronically on the 26th day of June 2026.

Introduction.

1. This judgment concerns two motions: the first is the plaintiff's motion for judgment in default of defence as against all three defendants; the second is a motion brought by the second and third defendants to have the plaintiff’s action against them struck out as failing to disclose a stateable cause of action, or as being bound to fail and thereby constituting an abuse of process.

2. The plaintiff is a fisherman and author. On 17 September 2022, while acting as skipper of a motor fishing vessel, the MV Amethyst, bearing registration number WD 313, the boat capsized and sank.

3. The plaintiff alleges that the sinking of the vessel was due to the unsafe, dangerous and unseaworthy condition of the boat. The plaintiff alleges that when the boat capsized he was thrown around the wheelhouse and became trapped in the boat as it sank beneath the waterline. He managed to get free and swam to safety. As a result of this accident, the plaintiff claims that he has suffered physical and psychiatric injuries.

4. The plaintiff instituted proceedings by personal injury summons issued on 17 October 2024 as against the defendants for their negligence in and about the repair and maintenance of the ship.

5. The first defendant is a company incorporated in the State. It is the registered owner of the MV Amethyst.

6. The second defendant is a company incorporated in the State, which purchased the entire catch from the Amethyst for use in its seafood processing business, for onward sale in Asia.

7. The third defendant is a naturalised Irish citizen of Chinese origin. He is a director of the first and second defendants. He owns 100% of the issued share capital of the second defendant. He owns 50% of the issued share capital of the first defendant.

8. The defendants accept that they are out of time to file their defences to the proceedings. They state that if the motion on behalf of the second and third defendants seeking to strike out the proceedings against them is not successful, they will seek time to file a defence on behalf of all the defendants. If they are successful in their application, the first defendant will seek time to enter a defence on its behalf.

9. In respect of the motion brought by the second and third defendants, it was submitted that the second defendant is a company engaged in food processing in Ireland and the sale of seafood produce in Asia. It was submitted that it has no involvement in the ownership or control of the vessel, the MV Amethyst. It was submitted that the second defendant had no contractual relationship with the plaintiff. Its only involvement was that it purchased the catch that had been landed by the plaintiff from the use of the first defendant's ship.

10. The third defendant is a director of the first defendant. It was submitted that he had acted on behalf of the first defendant when he engaged the plaintiff to act as skipper of the first defendant's ship. The plaintiff was engaged under an oral profit share agreement, whereby he would be paid 50% of the profits from the sale of any of any catch landed, less agreed deductions in relation to the operating costs of the vessel. It was submitted that in his dealings with the plaintiff, the third defendant at all times acted in his capacity as a director of the first defendant.

11. It was submitted that in these circumstances, the second and third defendants had no responsibility or liability for the repair, maintenance or control of the ship; which liability rested at all times with the first defendant as owner of the vessel. It was submitted that where the plaintiff’s pleadings disclosed that his complaint was in relation to the maintenance, upkeep and repair of the ship; there was no claim being made against the second and third defendants and accordingly the proceedings against them should be struck out.

12. The plaintiff's response to these submissions will be set out later in the judgment.

Chronology of the Proceedings.

13. These proceedings have had a somewhat protracted history to date. As already noted, the accident the subject matter of the proceedings occurred on 17 September 2022. On 25 October 2022, a letter was written by the solicitor formally acting for the plaintiff seeking preservation of the ship so that an inspection could be carried out. By letter dated 9 November 2022, the plaintiff’s former solicitor sent a further letter seeking inspection facilities in respect of the ship. When no response was received to either letter, on 28 November 2022, the plaintiff's former solicitor issued a motion seeking a formal order for preservation of the ship and affording the plaintiff's engineer access to the vessel. This was in proceedings issued against the first defendant alone.

14. On 29 November 2022, the ship was sold to third parties. In November and December 2022 and in January 2023, the new owners stripped the ship of the equipment, fittings and fixtures therein.

15. By order dated 13 February 2023, the High Court directed that the respondent to the original proceedings, being the first defendant, should preserve the ship in a state unaltered from the date of the accident. It was further ordered that inspection of the ship be permitted by the applicant's engineer on a date to be agreed between the parties. The costs of the application were reserved to the trial of the action.

16. Notwithstanding the making of that order, inspection of the ship by the plaintiff did not occur until 19 November 2024. The plaintiff has stated on affidavit that when he managed to inspect the ship on that date, it was evident that it had been completely stripped of almost all of its equipment, fixtures and fittings; thereby rendering inspection of the ship almost useless for the purposes of the litigation herein. In an affidavit sworn on 25 November 2024, the plaintiff set out an inventory of the equipment that he states was on the ship when it sank. He also exhibited to the affidavit photographs showing parts of the ship from which equipment had been removed. He also produced photographs of various pieces of equipment that had been removed to a warehouse premises some distance from the harbour.

17. In relation to the present proceedings, the plaintiff received an authorisation from PIAB to proceed with the action on 9 September 2024. The personal injury summons was issued on 17 October 2024. It was served on the defendants on 24 October 2024.

18. When no appearance was entered on behalf of the defendants, a motion seeking judgment in default of appearance was issued. When the motion came on for hearing, the plaintiff consented to an extension of time for entry of an appearance on behalf of the defendants, which was entered on 27 January 2025.

19. By notice of motion issued on 10 December 2024, the plaintiff had sought a Mareva injunction to prevent the defendants dissipating their assets within the jurisdiction. In a replying affidavit, it was accepted that the first defendant had sold both the MV Amethyst and another vessel which it owned, the MV Renegade; but it was stated that this had been done to finance the salvage costs in relation to recovery of the MV Amethyst. While the court has been provided with the notice of motion and the grounding affidavit for that application and the replying affidavit on behalf of the defendants; it is not clear what order, if any, was made on foot of that application.

20. In March 2025, the plaintiff wrote to the defendants seeking delivery of their defence. At this stage, the plaintiff was acting as a litigant in person. On 24 April 2025, the plaintiff sent a warning letter to the defendants stating that they had 28 days to file their defences, failing which, the necessary motion would issue.

21. On 30 April 2025, the defendants raised a notice for particulars arising out of the personal injury summons. No replies were furnished by the plaintiff to this notice for particulars.

22. On 23 May 2025, the plaintiff issued his motion seeking judgment in default of defence against all three defendants. That motion was given a return date of 28 July 2025.

23. By letter dated 5 June 2025, the defendants’ solicitor again requested delivery of replies to the notice for particulars that had been raised by the defendants.

24. On 18 July 2025, the second and third defendants issued their motion seeking to have the action against them struck out as failing to disclose a cause of action against them and as constituting an abuse of process.

25. The plaintiff's motion for judgment in default of defence and the motion issued on behalf of the second and third defendants were transferred to be non-jury list for hearing. The two motions were heard together before this Court on 18 June 2026.

Submissions on behalf of the Second & Third Defendants.

26. On behalf of the second and third defendants, Mr. Gilligan BL accepted that the jurisdiction to strike out proceedings under RSC, O.19, rr. 27 and 28, was a jurisdiction which the court had to exercise sparingly and only in clear cases.

27. Counsel submitted that this was a case where there was clearly no claim being made by the plaintiff against the second and third defendants; nor could any realistic case be made against them on the facts. It was submitted that when one looked at the plaintiff's personal injury summons, his sole complaint was against the owner of the MV Amethyst for alleged negligence and breach of duty in relation to the maintenance and upkeep of the vessel. It was alleged that because the vessel had become unseaworthy, it had capsized and had sunk, thereby causing injury to the plaintiff. Counsel submitted that in these circumstances the claim could be characterised as being a claim for damages in respect of injuries arising from a defective ship. It was submitted that the liability for such state of affairs, if it was established at the trial of the action that the ship was in a dangerous and unseaworthy condition, would rest solely with the owner of the vessel.

28. Counsel stated that it was clearly admitted that the first defendant was the registered owner of the vessel. Therefore, such liability as may attach to any of the defendants arising out of the capsizing and sinking of the vessel in September 2022, could only attach to the first defendant being the owner of the ship at the relevant time.

29. In relation to the alleged liability of the second defendant, it was submitted that the evidence that was before the court, which had been set out in the affidavit sworn by the third defendant, was to the effect that the only involvement of the second defendant was as the entity which had purchased the catch from the MV Amethyst for use in its seafood processing business.

30. It was submitted that documentation had been exhibited which established the following: that the second defendant had purchased the catch from the ship on a number of occasions from the first defendant; which entity had proceeded to give the plaintiff 50% of the net profits from the sale of the catch, as per the profit-sharing agreement that had been entered into between them. It was submitted that in these circumstances the second defendant had no involvement in the ownership, management or control of the ship. Accordingly, it could not bear any responsibility for the sinking of the vessel in September 2022.

31. In relation to any possible liability on the part of the third defendant, it was submitted that at all times the plaintiff had proceeded on the basis that the first defendant was the owner of the vessel. This was shown by two facts: first, when seeking the preservation order from the High Court in the original proceedings, the plaintiff had proceeded solely against the first defendant on the basis that it was the owner of the vessel. Secondly, the plaintiff had brought proceedings before the WRC in relation to alleged unlawful deductions from his wages. From the claim form that had been submitted to the WRC, it was clear that the plaintiff had proceeded against the first defendant in relation to this complaint. It was submitted that these facts, together with the documentation that had already been exhibited which evidenced the payment of 50% of the profits by the first defendant to the plaintiff, established that the first defendant was the entity with whom he had entered into his contractual arrangement and was the entity which owned the vessel.

32. Finally, it was submitted that insofar as the plaintiff may seek to lift the veil of incorporation in relation to the first and second defendants and thereby seek to impose liability on the third defendant as director or shareholder in these companies, it was submitted that it was well established that the corporate veil could only be lifted in circumstances where there was an allegation of fraud on the part of the owners or controllers of the company. It was submitted that there was no such allegation contained in the personal injury summons issued on behalf of the plaintiff.

33. It was submitted that in these circumstances, such liability, if any, as may arise on the part of the owner of the vessel concerning the sinking of it in September 2022, could only attach to the first defendant. There was no possibility that any liability for the condition or upkeep of the vessel could be attributed to either the second or third defendants; therefore, it was appropriate to strike out the proceedings against them.

Submissions by the Plaintiff.

34. In response, the plaintiff submitted that while it was correct to state that the first defendant was the current registered owner of the MV Amethyst, that did not constitute the exclusive definition of the owner of a vessel. Under the Safety, Health and Welfare at Work (Fishing Vessels) Regulations 1999, the term owner was given a wider meaning than just the registered owner of the vessel. It included not only the registered owner, but any party who had chartered the vessel from the owner and any person who managed the vessel either under the terms of a management agreement, or as the case may be, the person managing the vessel who employs the workers concerned.

35. The plaintiff submitted that there was evidence before the court which indicated that the third defendant was the manager of the vessel. His status as manager was supported by the declaration of compliance with the code of practice which had been exhibited to the third defendant’s affidavit. In that document, the third defendant under the portion of the document headed “Declaration by Owner” had stated: “I, Bing Xia manager of the above described vessel declare that the particulars given on this form are correct…”. It was submitted that this constituted a clear acceptance by the third defendant that he was the manager of the vessel and was therefore within the definition of owner as contained in the 1999 Regulations. That being the case, it was submitted that he too bore the responsibilities imposed on an owner of a vessel by those regulations.

36. It was further submitted by the plaintiff, that all his dealings had been with the third defendant, who was the owner and controller of the first and second defendants. He stated that the third defendant had entered into the oral profit sharing agreement with him; had directed when fishing was to take place and where it was to take place. The third defendant had also entered into an agreement whereby the second defendant had pre-purchased the entirety of the catch from the first defendant. Therefore, the plaintiff had no freedom to sell the catch to any other purchaser when it was landed. It was submitted that in these circumstances the reality was that the third defendant was operating through two companies, but it was, in effect, one single entity and therefore his contract was with the third defendant from whom he took all his directions.

37. The plaintiff stated that this was relevant having regard to the fact that the term “worker” was defined in the 1999 Regulations as meaning any person carrying out an occupation on board a vessel, whether as an employee, or self-employed person. Thus, it was asserted that the owner of the vessel as defined in the regulations, which would include a manager, owed the duties as set out in the regulations to the plaintiff who was defined as a “worker” at the relevant time for the purposes of the regulations. It was submitted that in these circumstances, it could not be stated that the plaintiff did not have a stateable claim as against the second and third named defendants.

38. The plaintiff stated that when the pleadings had closed, he would obtain discovery of documents from all the defendants which would establish the level of integration between the three defendants in relation to the business enterprise being carried on; such that the plaintiff would be able to establish at the trial of the action that there was effectively one business enterprise being carried on by the third named defendant on his own behalf and under his direction and control, albeit carried out through the vehicle of his two companies. It was submitted that it would be inappropriate for the court to strike out the proceedings as against the second and third defendants until discovery of documents had been obtained and until the plaintiff had had an opportunity to fully explore this issue at the trial of the action.

39. Finally, the plaintiff stated that the defendants had acted in a way that was designed to prejudice his ability to successfully mount his case at the trial. They had done that by delaying in entering an appearance until the last possible moment; by delaying delivery of their defence; and most importantly, by ignoring the letter seeking preservation of the assets and by disposing of the assets and allowing the purchasers to completely strip the ship prior to the order for preservation being made in February 2023.

40. It was submitted that these actions had rendered the inspection which had ultimately been carried out by the plaintiff in November 2024 practically useless, because all the equipment had been dismantled and removed from the ship and some of it had been stored in a warehouse some 5kms from the harbour. The plaintiff stated that he would be bringing an application at the trial of the action for the necessary reliefs from the trial judge in regard to this conduct.

41. The plaintiff submitted that having regard to these matters, it could not be said that he had no stateable case against the second and third defendants and it would be inappropriate for the court to strike out the proceedings against them at this stage.

The Law.

42. The relevant Rules of the Superior Courts are O.19, rr. 27 and 28, which provide as follows: - “27. The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or which amounts to an abuse of the process of the Court, or which may unreasonably prejudice or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.

28. (1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

[………]

(3) The Court may, in considering an application under sub-rule (1) or (2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

(4) Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly.”

43. The jurisdiction that the court enjoyed under its inherent jurisdiction prior to the amendments to the Rules of the Superior Courts in 2023, and the jurisdiction enjoyed by the court subsequent to the amendments to O.19 have been examined in a number of cases. In Mohan v The Revenue Commissioners [2025] IEHC 63, Simons J noted that by analogy with the pre-amendment case law, the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rules. He went on to state as follows at para. 11:

“An application to strike out proceedings will, almost by definition, have been brought at an early stage of the proceedings, at a time when the possibility of pursuing procedural mechanisms—such as the discovery of documents, interrogatories, and the power to subpoena witnesses—will not yet have been exhausted. The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings. As emphasised in the earlier case law, experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance. (See, by analogy, Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21, [2014] 2 IR 301). It is not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended. Rather, the court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail.”

44. In Von Geitz v Tom O’Brien & Anor. [2025] IEHC 399, Nolan J noted that the courts retain jurisdiction to strike out matters in cases where it is clear that the defendant’s case is bound to fail. But it is a jurisdiction which the court should exercise sparingly.

45. In Cullen v Start Mortgages Limited [2025] IEHC 554, Nolan J stated that the purpose of amending O.19 was to clarify the High Court’s power to strike out claims, defences or pleadings. The amendment made explicit the court’s authority to strike out any proceedings, or parts thereof, to streamline the judicial process. He stated that the amendment aimed to improve the efficiency of court procedures by clearly outlining the court’s authority to eliminate claims or defences that are considered unnecessary or legally deficient.

46. Finally, in McCarthy v Byrne [2025] IEHC 519, Dignam J gave the following helpful summary of the relevant principles at para. 42:

“In summary, the jurisdiction, whether under Order 19 Rule 28 or the Court's inherent jurisdiction, is subject to a number of overarching principles: first, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice; second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; third, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; fourth, the Court must take the plaintiff's claim at its highwater mark; fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and sixth, the Court must be satisfied that the plaintiff's case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial…”

Discussion and Conclusions.

47. It was accepted by the parties that the court’s jurisdiction to strike out proceedings at this stage, is a jurisdiction to be exercised sparingly and only in clear cases.

48. I accept the submission of the plaintiff that while ownership of a ship is primarily established by entry on the relevant register of ownership of ships maintained by the country of registration of the vessel, it is not exhaustive as to the question of ownership of the ship for all purposes.

49. This is made clear by the definition of “owner” of a ship contained in the 1999 Regulations (SI 325/1999) which provides that in relation to a vessel “owner” means the registered owner of the vessel or in the case that the vessel has been chartered by demise or is managed either wholly or in part by a person other than the registered owner under the terms of a management agreement, the demised charterer or as the case may be the person managing the vessel, who employs the workers concerned. Thus, it is clear that the legal definition of “owner” of a ship for the purposes of the provisions of the 1999 Regulations is wider than the person or entity registered in the register of owners of maritime vessels as maintained by the relevant country of registration.

50. In the present case, there is evidence before the court that the third defendant signed the certificate of compliance in relation to the code of practice as manager of the ship. Thus, it is arguable that for the purposes of the regulations, and in particular, in relation to the obligations cast on the owner of a ship as set out therein, the third defendant may be held to be an owner of the MV Amethyst for the purposes of the regulations.

51. In these circumstances, it cannot be said that the third defendant could never be found to have any liability for the state of the vessel on the date of its sinking on 17 September 2022. Whether he in fact may have any liability in relation to that event, is a matter for determination at the trial of the action. I am satisfied that it is not appropriate to strike out the action against the third defendant at this stage in the proceedings.

52. I also accept the plaintiff’s evidence that it is arguable that given the extent of ownership and control exerted by the third defendant over the activities of the first and second defendant; and in particular, the evidence of the plaintiff that it was the third defendant who directed that repairs to the vessel be carried out by Mr. Coady in the days prior to the sinking, and having regard to the degree of control that the third defendant exercised in relation to what fishing activities were to be carried out by the ship, that it is arguable having regard to the test laid down in The Revenue Commissioners v Karshan (Midlands) Ltd T/A Dominos Pizza [2023] IESC 24 that the plaintiff was employed by the third defendant as part of an integrated enterprise carried on by him through the first and second defendants.

53. There is support for this contention by virtue of the fact that while the plaintiff was operating an oral profit sharing agreement which he had negotiated with the third defendant; he was not free to sell the catch to whichever buyer he chose, as the entire catch had been pre-purchased by the second defendant from the first defendant.

54. Given the level of ownership and control exercised by the third defendant over the first and second defendants in his role as director of both companies and the extent of his ownership of those companies, it is arguable, that in reality, the plaintiff was employed by the third defendant as part of the integrated business model established by him to source, process and sell seafood for the Asian market. In these circumstances, it cannot be said that the third defendant could not be found to have any liability for a ship which was owned by a company of which he was a 50% owner and of which he was a director.

55. In argument at the bar, Mr. Gilligan BL referred to the fact that in his application for a preservation order, the plaintiff had proceeded only against the first defendant in its capacity as owner of the vessel. I accept the explanation given by the plaintiff that that was done as it was necessary to act quickly to preserve the assets for inspection and for that reason the plaintiff had proceeded with the motion against the first defendant as the registered owner of the ship.

56. In argument at the bar, Mr. Gilligan BL also referred to the fact that the plaintiff had lodged a claim with the WRC in relation to alleged unlawful deductions from his wages. In his application form he had stated that his employer was the first defendant. While that was stated at section A of the application form filed by the plaintiff before the WRC; at section R of the same form, he had clearly stated that the vessel was owned by the third defendant who was a director of the first defendant. He had gone on to state that he had entered into an agreement with the third defendant to operate his fishing vessel and deliver the catch to the second defendant. In the claim before the WRC, the plaintiff had alleged that deductions had been made from his share of the profits in respect of agreed running costs of the ship, which were to include the payment of insurance premiums. It had transpired subsequent to the sinking of the vessel, that the premium had not been paid by the defendants, with the result that the sinking of the vessel was not covered by any policy of insurance. On that basis, the plaintiff had alleged that the relevant deductions from his share of the profits had been unlawful.

57. In the events which transpired, his claim before the WRC was dismissed on grounds that it was brought out of time. The court is satisfied that from a reading of the entire application form furnished by the plaintiff as part of his application to the WRC, it was clearly stated by him that the owner of the vessel was the first and/or third defendant.

58. In reaching its conclusion that the second and third defendants should not be allowed out of the proceedings at this stage, the court has also had regard to the issue regarding preservation of the ship. The relevant dates in relation to this issue have been set out above. The position appears to be that the defendants ignored the letters from the plaintiff's former solicitor in the previous action seeking preservation of the ship and affording inspection facilities to the plaintiff.

59. Instead, one or other of the defendants proceeded to sell the MV Amethyst to third parties on 29 November 2022. They allowed the purchasers to strip the ship of much of its equipment, fixtures and fittings in the following months. This meant that by the time the plaintiff could get his motion on for hearing on 13 February 2023, the ship had been stripped, thereby making any inspection by an engineer retained by the plaintiff, all but useless.

60. In his affidavit sworn on 25 November 2024, the plaintiff has set out a full inventory of the equipment, fixtures and fittings that he says were on the ship when it sank. In the exhibits to that affidavit, the plaintiff has provided photographs of the state of the vessel when it was inspected on 19 November 2024. There is evidence before the court that the ship had been extensively stripped by that time. In addition, the plaintiff stated that it was only after he had made eleven requests for inspection facilities that he was eventually afforded inspection of the vessel on 19 November 2024.

61. The plaintiff has indicated that he intends to bring an application at the trial of the action seeking appropriate relief, on the basis that he has been prejudiced in the conduct of his action by the actions of the defendants in selling the ship and permitting it to be stripped by third parties.

62. As the first and second defendants are companies owned and controlled by the third defendant, and as they must act through human intervention, it is possible that the trial judge may make orders against all three defendants if he/she were to be satisfied that these actions were taken without notice to the plaintiff and had the effect of severely prejudicing his ability to carry out a meaningful engineering inspection of the vessel.

63. In this regard, it is necessary to note that in the personal injury summons it was pleaded that the vessel had not been kept in a seaworthy condition. In particular it was pleaded that one of the engines of the vessel was operating with a rubber hose emanating from it, where a steel hose was required by the regulations. It is alleged that the rubber hose chaffed or vibrated off as it was not supported by the necessary clips or supports as required by the regulations and the code of practice for vessels under 15m in overall length. Whether the plaintiff was hampered in his ability to establish this state of facts by the actions of the defendants in allowing the boat to be stripped, is a matter which will have to be determined by the trial judge.

64. If the plaintiff's evidence in this regard is accepted by the trial judge, and is supported by engineering evidence to that effect, it is possible that those portions of any defences that may be filed on behalf of the defendants that put liability in issue, may be struck out. Where this is a possibility, it would be improper and unjust to strike out the action against the second and third defendants at this stage, which would render them immune from any sanction if an adverse finding were to be made against them on the preservation issue.

65. For these reasons, the court is not satisfied that it can be said that the plaintiff has no stateable case against the second and third defendants. Accordingly, the court refuses the reliefs sought by the second and third defendants in their notice of motion dated 18 July 2025.

Proposed Final Order.

66. Having regard to the findings made in this judgment, the court proposes that the final order will be to refuse the reliefs sought by the second and third defendants in their notice of motion dated 18 July 2025.

67. The court proposes to make what is known as an “unless order” in relation to the plaintiff's motion for judgment in default of defence against the defendants. It will provide as follows: “Judgment for the plaintiff against the defendants, unless within a period of four weeks from today's date, a defence is filed on behalf of each of the defendants; and if that is done, costs of the motion are awarded to the plaintiff as against the defendants, such costs to be adjudicated in default of agreement; and there will be a stay on the execution of such costs order pending the final determination of the matter.”

68. As this judgment has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final orders in each motion and on costs and on any other matters that may arise.

69. The matter will be listed for mention at 10.30 hours on 16 July 2026 for the purpose of making final orders.