Ballymore Residential Ltd and Crosswinds Cottage Ltd v Roadstone Ltd, CRH Public Ltd Company, Murphy Concrete (Manufacturing) Ltd and William Miley Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Ms. Justice Faherty
• Judgment Date: 04 June 2021
• Neutral Citation: [2021] IECA 167
• Date: 04 June 2021
• Docket Number: Appeal Number: 2018/318
• Court: Court of Appeal (Ireland)

Between

Ballymore Residential Limited and Crosswinds Cottage Limited

Plaintiffs/Respondents

and

Roadstone Limited, CRH Public Limited Company, Murphy Concrete (Manufacturing) Limited and William Miley Limited

Defendants/Appellants

[2021] IECA 167

Faherty J.

Collins J.

Binchy J.

Appeal Number: 2018/318

THE COURT OF APPEAL

Strike out application – Stay – Third party notices – Appellants seeking to strike out and/or alternatively stay the proceedings – Whether the appellants would be disadvantaged or prejudiced by the procedure which had been adopted in the High Court

Facts: The first and second defendants/appellants, Roadstone Limited and CRH Public Limited Company (Roadstone), appealed to the Court of Appeal from the refusal of the High Court (Murphy J) to strike out and/or alternatively stay the proceedings (the Plenary Proceedings). Roadstone’s strike out application was initiated in the wake of the plaintiffs/respondents, Ballymore Residential Limited and Crosswinds Cottage Limited (Ballymore), having obtained leave to issue and serve third party notices on Roadstone in three sets of proceedings which formed part of a series of actions (the Homeowner Proceedings). What arose for determination in this appeal was whether it was reasonable for the High Court judge, in the exercise of her case management functions, to take the provisional view that the contribution/indemnity issues that arose as between the parties should be determined first and in the Plenary Proceedings, and whether she was precluded from taking that approach by s. 27 of the Civil Liability Act 1961, as amended.

Held by Faherty J that Roadstone had not persuaded the Court that they would be disadvantaged or prejudiced by the procedure which had been adopted in the High Court. Furthermore, going forward, Faherty J perceived no prejudice in this case arising from the refusal of the trial judge to grant Roadstone the relief they claimed in their notice of motion. Faherty J noted that, in their written submissions, Ballymore asserted that if the Court dismissed Roadstone’s appeal, their cross-appeal as set out at Part III (10)(b) of their Respondent Notice would not arise. Faherty J held that, as she proposed dismissing Roadstone’s appeal, it thus followed that Ballymore’s appeal against the holding of the High Court that they could not maintain both the Plenary Proceedings and the third party proceedings and prohibiting them from issuing and serving any further third party notices would also be dismissed.

Faherty J dismissed Roadstone’s appeal and Ballymore’s cross-appeal. As the cross-appeal took up little time in the Court, Faherty J perceived no injustice if the Court were to make no order as to costs in respect of the cross-appeal. Faherty J took the view, however, that as Ballymore was the successful party in respect of Roadstone’s appeal, they were entitled to their costs.

Appeal dismissed. Cross-appeal dismissed.

Final but unapproved

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 4 June 2021

PRELIMINARY AND SUMMARY

1 I have read the judgment of Faherty J and I agree with it. In light of the importance of some of the issues raised by the appeal, I wish to separately explain my reasons for dismissing the appeal and affirming the judgment and order of the High Court. For that purpose I gratefully adopt my colleague's detailed account of the procedural history of these proceedings, the background to this appeal (including the judgment of Murphy J given on 26 June 2018) and the positions taken by the parties in argument.

2 I will start by setting out briefly the principal conclusions I have reached:

• • The Appellants (“ Roadstone”) are precluded from challenging the entitlement of the Respondents (“ Ballymore”) to pursue its claim for indemnity and contribution in these proceedings (to which, for convenience, I shall refer to as “ the Indemnity Proceedings”). Roadstone participated actively in the Indemnity Proceedings without objection or complaint between May 2016 (when the proceedings were served on them) and April 2018 (when Roadstone's application to set aside the Indemnity Proceedings as bound to fail was issued). In these circumstances, it is “ entirely inappropriate… that [Roadstone] should come to Court seeking to set aside a procedure in which they have taken an active part and effectively urge the Court to set at nought the costs and expenses incurred in this procedure”.

• • In this context, Roadstone's argument that it could not move until third party notices were issued and served in the Homeowner Proceedings is wholly unconvincing. At any point after the Indemnity Proceedings were served on it, it was open to Roadstone to apply to have the proceedings stayed on the basis that the claims for indemnity and contribution made in these proceedings (including, but not limited, to Ballymore's claim for contribution pursuant to Part III of the Civil Liability Act 1961 (“ the 1961 Act”)) ought properly to be pursued by way of the third party procedure in the Homeowner Proceedings. Its failure to do so, or otherwise to take any step challenging the prosecution of the Indemnity Proceedings, over a period of almost two years, during which the proceedings were before the High Court on multiple occasions, deprives Roadstone of any entitlement to raise any procedural objection to the maintenance of the Indemnity Proceedings at this stage.

• • These findings are sufficient to dispose conclusively of Roadstone's appeal but I shall in any event consider the merits, such as they are, of Roadstone's application.

• • The application is to have the Indemnity Proceedings struck out in limine pursuant to Order 19, Rule 28 or, on the alternative, pursuant to the inherent jurisdiction (to which I shall refer as the “ Barry v Buckley jurisdiction”, after Barry v Buckley [1981] IR 306). It is clear from the authorities that Order 19, Rule 28 has no application in the circumstances here, given that Roadstone does not suggest that Ballymore's pleaded claim (now set out in the Amended Statement of Claim delivered on 18 April 2019) fails on its face to disclose a reasonable cause of action or is frivolous or vexatious on its face.

• • As regards the Barry v Buckley jurisdiction, it is clear from the authorities that the threshold for granting relief is a high one. As Costello J emphasised in Barry v Buckley itself, the jurisdiction is to be “ exercised sparingly and only in clear cases.” The jurisdiction is not suitable for the resolution of disputed issues of law unless they are “ simple and straightforward” and can properly be determined, without risk of injustice, within the confines of a strike-out application: Jeffrey v Minister for Defence [2019] IESC 27, [2020] 1 ILRM 67.

• • Roadstone's core argument – that the further prosecution of the Indemnity Proceedings is so clearly inconsistent with the mandatory requirements of section 27(1)(b) of the 1961 Act that the Court can, with sufficient confidence, conclude that the proceedings are bound to fail – has multiple frailties:

  • ○ Roadstone's analysis critically depends on the fact that third party notices were served by Ballymore in the Homeowner Proceedings. According to Roadstone, it was the service of such notices that triggered an absolute requirement on the part of Ballymore to pursue its claim for indemnity and contribution by way of the third party procedure in the Homeowner Proceedings. Yet, of the 32 surviving actions within the Homeowner Proceedings, third party notices have been served in three actions only. The claims made in the Indemnity Proceedings are not limited to those three actions. No credible argument has been articulated by Roadstone as to how service of third party notices in three actions should have the consequence of barring the maintenance of the much broader claims made in the Indemnity Proceedings.

  • ○ A claim for contribution under Part III of the 1961 Act is made in the Indemnity Proceedings but the proceedings also include other claims, including claims for damages for breach of contract, negligence and breach of duty. Roadstone's strike-out application depends critically on its contention that all of the claims made by Ballymore in the Indemnity Proceedings – not simply the Part III contribution claim – come within the scope of section 27(1)(b). If that contention is not correct, then Roadstone's application inevitably fails. The scope of section 27(1)(b) is not a “simple and straightforward” issue and for that reason I shall refrain from expressing a definitive view on the issue in this judgement. However, it certainly cannot be said that Roadstone has demonstrated that section 27(1)(b) clearly applies to the range of claims made in the Indemnity Proceedings. On the contrary, Ballymore appears to have the better side of the argument, by reference to the language of section 27, the structure of Part III and the authorities.

  • ○ As regards the claim for Part III contribution, even if one assumes (in favour of Roadstone) that the Barry v Buckley jurisdiction allows a court to strike-out part of a plaintiff's claim, this is not an appropriate case in which to exercise any such jurisdiction in circumstances where, far from resulting in the saving of court time and costs, such an order would (in the words of the Judge) result in “ a convoluted and expensive process” that would be “extremely wasteful of resources”.

  • ○ In any event, it cannot be said that Roadstone has demonstrated that section 27(1)(b) of the 1961 Act clearly has the effect of precluding Ballymore from maintaining its claim for Part III contribution in the Indemnity Proceedings. Again, the issue is not “simple and straightforward” and for that reason it would not be appropriate to seek to resolve it definitively in an application such as this.

  • ○ What may be said, however, is that section 27(1)(b) “ ...