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 Binchy
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IECA 66
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2019/215

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

[2022] IECA 66

Faherty J.

Collins J.

Binchy J.

Record No.: 2019/215

THE COURT OF APPEAL

Mootness – Jurisdiction – Breach of fair procedures – Appellants appealing an order for inspection and sampling and an order directing the first appellant to identify relevant locations within its quarries – Whether the appeal could be considered moot

Facts: The plaintiffs/respondents, Ballymore Residential Ltd and Crosswinds Cottage Ltd, claimed indemnity and contribution from the defendants/appellants, Roadstone Ltd (Roadstone), CRH Public Ltd Company, Murphy Concrete (Manufacturing) Ltd and William Miley Ltd, in respect of any liability that they, the respondents, may be found to have to the plaintiffs in other proceedings issued against the respondents by a number of individual homeowners in a development constructed by the respondents at Portmarnock, County Dublin, and known as Drumnigh Wood Estate (the Development). The High Court made an order, perfected on 11th April 2019, for the inspection and sampling of the relevant locations within the quarries of Roadstone at Huntstown, Belgard and Feltrim from which stone was extracted and delivered to the Development; to give effect to the order, the court directed that Roadstone should identify the relevant locations. The appellants appealed to the Court of Appeal. While the appellants initially appealed both parts of the order, i.e. firstly, the order for inspection and sampling, and, secondly the order directing Roadstone to identify relevant locations within its quarries, they pursued the appeal in relation to the latter only. The appeal raised three issues: (1) Are the first four grounds of appeal moot, in light of the inspection that has taken place and the samples that have been taken by the respondents, and their subsequent confirmation that they will not need to and will not seek to conduct further inspections of the Roadstone quarries? (2) If the first four grounds of appeal are not moot, did the High Court have jurisdiction to make such an order? (3) Did the trial judge make findings, in para. 25 of her judgment, that can and should be set aside if the Court were satisfied that such findings were made in breach of fair procedures?

Held by Binchy J that, notwithstanding the inspection carried out by the respondents at the Roadstone quarries in September 2019, in circumstances where the order of the High Court of 11th April 2019 remained extant and had not been complied with by Roadstone, the order was capable of affecting the rights of the parties in the proceedings, and in such circumstances the appeal could not be considered moot. Binchy J held that O. 50, r. 4 of the Rules of the Superior Courts is broad enough to confer jurisdiction of the High Court to make such ancillary orders as are reasonably necessary and expedient to give effect to an order for inspection made pursuant to O. 50, r. 4. Binchy J held that the order made by the trial judge was necessary and expedient in order to give effect to the order for inspection; contrary to the arguments made by the appellants, it was not made in breach of fair procedures and did not have the effect of reversing the burden of proof in the proceedings. Having regard to the submissions made on behalf of the respondents that they would not be seeking any further inspections of the Roadstone quarries, Binchy J held that it was appropriate that the stay placed upon the order of the High Court, by the Court of Appeal, in May 2019 should be continued indefinitely, pending further orders (if any). Binchy J held that the comments made by the trial judge at para. 25 of her judgment did not constitute findings that were capable of being set aside.

Binchy J dismissed the appeal and affirmed the order of the High Court of 11th April 2019. His provisional view as to costs was that since the respondents had been wholly successful in the appeal, the appellants should pay the costs of the respondents, to be adjudicated in default of agreement.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 16 ^th day of March 2022

1 . In these proceedings the respondents, who are the plaintiffs in the proceedings, claim indemnity and contribution from the defendants in respect of any liability that they, the respondents, may be found to have to the plaintiffs in other proceedings issued against the respondents by a number of individual homeowners in a development constructed by the respondents at Portmarnock, County Dublin, and known as Drumnigh Wood Estate (the “Development”). The Development, which comprises 145 houses, was constructed by the respondents between November 2001 and August 2007. In the course of constructing the Development, the respondents used stone products of varying grades supplied by the first, third and fourth defendants. An earlier judgment of the High Court in these proceedings records that in excess of 80% of these products were supplied to the respondents by the first named defendant, one of the appellants in this appeal (where appropriate, I shall refer to all defendants collectively as the defendants, and I shall refer to the first and second named defendants as the “appellants”). The second named appellant was joined to these proceedings in its capacity as a guarantor of the liabilities of the first named appellant. When referring to the first named appellant only hereafter, I will refer to it as “Roadstone”.

2 . Not very long after the construction of the Development, homeowners began to complain of structural defects. This led to the issue of proceedings, against the respondents who in turn issued the within proceedings, in May 2016, against the defendants, claiming indemnity and contribution from the defendants herein, in respect of all losses, howsoever arising, that the respondents may suffer arising out of the supply by the defendants to the respondents of stone infill for use in the Development. Soon after the issue of these proceedings (on 3 ^rd June 2016) — before the service of a statement of claim — the respondents issued a motion pursuant to O. 50, r. 4 of the Rules of the Superior Courts, seeking, inter alia, an order permitting inspection of certain lands of Roadstone and the third named defendant, the lands concerned being quarries from which stone products were extracted and supplied by those defendants to the respondents for use in the Development. This motion first came on for hearing before Murphy J. in May 2017, and on 28 ^th July 2017 she handed down her first of two judgments relating thereto, which judgment was not appealed.

3 . Before proceeding further, it is useful at this juncture to set out the provisions of O. 50, r. 4 RSC:

“ The Court, upon the application of any party to a cause or matter, and upon such terms as may be just, may make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid may authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter and for all or any of the purposes aforesaid may authorise any samples to be taken or any observations to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.”

4 . In her judgment of 28 ^th July 2017, Murphy J. related that fifty of the houses in the Development had been remediated pursuant to an insurance bond provided by the respondents at the time of the sale of the houses, and the insurers underwriting that bond, in exercise of their rights of subrogation under the bond, then issued proceedings as against the first and third named defendants in respect of those claims. Separately, more than thirty additional homeowners (whose claims for one reason or another were not, as I understand it, covered by the bond referred to above) have issued proceedings against all the parties to these proceedings claiming damages arising out of defects in their houses which defects are claimed to have arisen owing to the phenomenon known as pyritic heave.

5 . So far as Roadstone is concerned, its lands were specifically identified in the motion, and included large quarries located at Belgard, Tallaght, Dublin 24; Huntstown, Finglas, Dublin 11 and Feltrim, Swords, Co. Dublin, as well as three other Roadstone quarries, in respect of which the application was later withdrawn. In addition to seeking an order for inspection, the notice of motion sought an order entitling the respondents to take and remove samples of rock including by the drilling of rock, as well as an order requiring the first named appellant to provide “ such reasonable cooperation and assistance as the plaintiffs and their respective servants and/or agents may reasonably require in order to complete [the inspection and taking of samples].”

6 . Very similar orders were sought as against the third named defendant, the only difference being that the respondents sought an order directing that defendant to identify the lands from which aggregate and crushed rock products had been supplied by it, the third named defendant, to the respondents, and thereafter to facilitate inspection of those lands.

7 . These proceedings have given rise to numerous interlocutory applications and have, for several years, been the subject of case management by the High Court, under the direction of Murphy J. This motion for inspection was initially heard over three days, on 30 ^th May, 31 ^st May and 1 ^st June 2017. The motion was opposed by the appellants, principally in the grounds that it...