Andrews Construction Ltd (plaintiff) v Lowry Piling Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] IEHC 276 |
| Judgment citation (vLex) | [2010] 7 JIC 1301 |
| Court | High Court |
| Date | 13 July 2010 |
[2010] IEHC 276
THE HIGH COURT
AND
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MOLLOY v DUBLIN CORP & ORS 2001 4 IR 52 2002 2 ILRM 22 2003/38/9025
CIVIL LIABILITY ACT 1961 S27(1)(A)
Practice and procedure - Joinder of parties - Construction claim - Delay - Discretion of court - Settling of proceedings - Justice of case - Civil Liability Act 1961
Facts: The plaintiff was a developer and the defendant company operated a piling business. It was contracted by the plaintiff to carry out piling works on the development in question in the proceedings. Structural problems became apparent in the development following completion of the houses and proceedings were instituted. The defendant sought to strike out the proceedings on the grounds of inordinate, inexcusable and unreasonable delay. The plaintiff had been sued in other proceedings by homeowners but the plaintiff did not join the defendant as third party in those proceedings. They settled those proceedings without any participation by the defendant and without reference to them. They now sought indemnity in those proceedings for the loss incurred in settling those proceedings. The defendant contended that the proceedings were instituted six years after the works had been carried out and that the plaintiff had failed to prosecute the claims with expedition.
Held by Hedigan J. that the evidence in the case demonstrated that the plaintiff was aware that there was a serious issue with the piling works that had been undertaken. The plaintiff was aware at the relevant time that the defendant was most likely to be directly involved in the causation of the problem. The plaintiffs did not proceed to join the defendants in those proceedings. The justice of the case lay in favour of finding for the defendant. The plaintiff acted unreasonably in not seeking to join the defendant. The Court would not exercise its discretion to allow the plaintiff to proceed in separate proceedings. The motion would be allowed.
Reporter: E.F.
The defendant in the proceedings herein applies in this motion to strike out the proceedings on the grounds of inordinate, inexcusable and unreasonable delay. At the hearing of the motion, the application was based primarily upon the ground that the plaintiff herein, having been sued in other proceedings by homeowners in respect of houses purchased by them from the plaintiff did not join the defendant as third party in those proceedings. They settled those proceedings without any participation by the defendant and without reference to them. They now seek indemnity in these proceedings for the loss incurred in settling those proceedings.
The plaintiff company is a developer. It built a housing development in Mullingar, County Westmeath called Petitswood Manor ("the development"), during the years 1999-2000.
The defendant company operates a piling business. It was contracted by the plaintiff to carry out piling works on the development in question. The piling works involved driving a column of wood or steel into the ground to provide support for a the houses in question.
The defendant undertook the piling works at the development on the 13 th August, 2000. Following completion of the houses, significant structural problems became apparent. These were found in numbers 119 and 120 Petitswood Manor. Cracking became apparent in the rear walls of those two houses on either side of the party walls between those houses. Solicitors engaged by the two sets of householders wrote to the plaintiff regarding these problems on the 16 th April, 2003, and on the 12 th May, 2003, respectively. Proceedings were instituted against the plaintiff herein by the purchasers of 119 Petitswood Manor on the 30 th July, 2003, by way of plenary summons and proceedings were instituted against the plaintiff herein by the purchaser of 120 Petitswood Manor on the 11 th February, 2004.
The plaintiff retained DBFL Consulting Civil and Structural Engineers ("DBFL") to report on the defects in the houses. An initial inspection report, based on a purely visual inspection, was prepared by Mr. Paul Forde, Consultant Engineer, and is dated the 9 th June, 2003. The walls of the properties were not opened up or stripped out for the purpose of this inspection. Mr. Forde's report concluded that the most likely cause of the cracking in the walls had been the failure or, at least the partial failure, of the pile beneath the junction of the rear wall with the party wall. To ensure that no further cracking occurred, Mr. Forde advised that it would be necessary to install remedial underpinning piles in the vicinity of the rear wall junction with the party wall. He also suggested that Lowry Piling Limited be requested to submit remedial proposals. The letter stated inter alia as follows:-
"Based on the pattern of the cracking observed it is our opinion that the most likely cause of the cracking in the walls has been the failure, or at least partial failure, of the pile beneath the junction of the rear wall with the party wall.
In order to ensure that no further progression of cracking takes place it will be necessary to install remedial 'underpinning piles' in the vicinity of the rear wall junction with the party wall. Techniques are available which allow this work to be carried out from outside the houses. We would suggest that you inform the firm which carried out the original piling and request that they submit remedial proposals as a matter of urgency. We will be pleased to check and approve any such proposal on your behalf. In the interim it would be prudent to install a number of glass 'tell-tales' so that any further progression in the cracking can be monitored and assessed."
Around this time the defendant herein was aware of the structural defects in the properties and the investigations which were taking place. It carried out its own investigations and ultimately its consultants, O'Connor Sutton Cronin, Consulting Structural Engineers produced a report dated the 9 th September, 2005. This report was furnished to the plaintiff on the 19 th May, 2006, a synopsis of that report having been forwarded to the plaintiff some months earlier in a letter from the defendant's insurers, by letter dated the 22 nd November, 2005. The tenor of the report was that there were other reasons for the settlement that occurred in the foundations apart from the piling works.
In a letter dated the 5 th December, 2003, DBFL confirmed its recommendation contained in its initial report of the 9 th June, 2003 that remedial works comprising of the installation of underpinning piles should be carried out.
On the 20 th March, 2004, the defendant sent a potential remedial solution by fax to DBFL. This potential solution was referred to in a report of DBFL dated the 31 st March, 2004. A joint inspection between the defendant and DBFL was also carried out and is alluded to in another report of DBFL dated the 3 rd February, 2005. In the letter from the defendant's insurers to DBFL dated the 22 nd November, 2005, it was indicated that the defendant did not accept liability for the defects that had arisen as follows:-
"On the evidence available, a case has not been made out against Lowry Piling. No evidence has been adduced to indicate that the piling contractor was negligent or deviated from approved standards of care or workmanship. We have identified what we believe are the more plausible reasons for the failure in this case which point to defective pile/ground beam interface or a defect induced in the pile during excavation of the ground beams. This was the responsibility of the main contractor. No doubt you will discuss the above findings with your own Engineer before considering High Court proceedings that we will vigorously contest on behalf of Lowry Piling."
The proceedings involving the homeowners were compromised in December 2004, by letter dated the 21 st December, 2004, to the owners of 119 Petitswood Manor and by letter dated the 17 th December, 2004, to the owner of 120 Petitswood Manor in full and final settlement. As part of the settlement the plaintiff agreed to provide alternative houses to the owners of the properties and to pay damages and legal expenses. The total sum of the settlement paid by the plaintiff was €448,792.68.
On the 19 th September, 2006, the plaintiff issued a plenary summons seeking an indemnity or, in the alternative, a contribution in respect of its losses together with other reliefs against the defendant. An appearance was entered by the defendant on the 1 st November, 2006. A statement of claim was then delivered by the plaintiff on the 11 th May, 2007. The defendant issued a notice for particulars on the 13 th September, 2007, and received replies on the 8 th February, 2008. A defence was delivered on the 30 th January, 2008. A notice of intention to proceed was served by the plaintiff's solicitors on the 11 th March, 2009, and a notice for trial was served on the 15 th April, 2009.
Mr. Jolly B.L., for the defendant, argued that these proceedings were instituted against it some six years after it carried out works and that the plaintiff had, as a result, failed to prosecute the claim against the defendant with due...
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Ericson and Others v Moloney Enterprises Ltd
...relevant. 25 The above dictum of Geoghegan J. was relied upon by the High Court in Andrews Construction Limited v Lowry Piling Limited [2010] IEHC 276, the facts of which are that the plaintiff developer had built and sold a housing development. The defendant had been contracted by the plai......