Ballymore Residential Ltd v Roadstone Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] IEHC 99 |
| Docket Number | [RECORD NO. 2015 10100 P] |
| Court | High Court |
| Date | 21 February 2019 |
[2019] IEHC 99
THE HIGH COURT
Murphy Deirdre J.
[RECORD NO. 2015 10100 P]
AND
AND
Application for inspection – Premature application – Balance of justice – Plaintiffs seeking an order pursuant to O. 50, r. 4 of the Rules of the Superior Courts ordering inspection and sampling of relevant parts of the defendant’s quarries – Whether the application for inspection was premature in the absence of discovery
Facts: The plaintiffs, Ballymore Residential Ltd and Crosswinds Cottage Ltd, applied to the High Court for an order pursuant to O. 50, r. 4 of the Rules of the Superior Courts ordering inspection and sampling of relevant parts of the quarries of the first defendant, Roadstone Ltd, at Huntstown, Belgard and Feltrim. The first defendant asserted that the application for inspection was premature in the absence of discovery.
Held by Murphy J that the ordering of inspection and sampling was in the interest of justice, the avoidance of unnecessary costs, the efficient use of the resources of the court and the vindication of the plaintiffs’ right of access to the court. By directing the first defendant to identify the locations in its quarries from which the stone supplied to the Drumnigh Wood Estate was extracted, the Court was balancing the right of the plaintiffs to have access to evidence in the control of their opponent with their opponent’s right to have the least possible interference with its property rights; this was best achieved by ensuring that there was a focussed single inspection which, at Roadstone’s election, all parties who may have a litigation interest in conducting an inspection, could attend.
Murphy J held that she would make an order for the inspection and sampling of the relevant locations in Roadstone’s quarries at Huntstown, Belgard and Feltrim from which stone was extracted and delivered to the plaintiff’s development at Drumnigh Wood Estate. To give effect to that order, the Court directed the first defendant to identify the relevant locations.
Application granted.
This is the plaintiff's renewed application for an order pursuant to O. 50, r. 4 of the Rules of the Superior Courts ordering inspection and sampling of relevant parts of the first defendant's quarries at Huntstown, Belgard and Feltrim.
The initial application for inspection issued on 3rd June, 2016 and was brought in respect of quarries owned by the first and third defendants. That application was heard over three days between 30th May and 1st June, 2017. On foot of that application, the court ordered inspection of the third-named defendant's quarry at Hollywood, Co. Wicklow. The court gave a written judgment in the matter on 28th July, 2017, setting out the background to the application, the applicable law and the reasons for its decision. This decision should be read in conjunction with that earlier written decision.
At the original hearing, Roadstone resisted the application for inspection of its quarries on the grounds that it was premature, unnecessarily invasive and that the parameters and mode of inspection were not sufficiently clear. Particular emphasis was placed by Roadstone on the fact that the pleadings were not closed, and in those circumstances, in its submission, it was too early to decide whether inspection of its quarries was warranted. Roadstone pointed out that their quarries were all working quarries, covering approximately 300 acres of land, and that the ordering of inspection prior to the close of pleadings would constitute an unwarranted and unnecessary interference with its business and would cause it reputational damage.
During the course of the original hearing, Roadstone's initial position, that the material which it supplied was not the cause of any damage to residential properties in the Drumnigh Wood Estate, evolved to include a suggestion that it was possible that any damage which may have occurred to homes in the estate, resulted from a misuse by the plaintiffs of its rock products. While being careful not to commit Roadstone to any particular position, counsel for Roadstone stated that the only material suitable for use as subfloor stone infill, was stone of the grade of Clause 804, which is the highest and most expensive grade of stone supplied by Roadstone. The plaintiffs had used stone infill containing mudstone, a muddy limestone, in the subfloor infill of the houses when same was not suitable for that purpose. According to Roadstone, muddy limestone has the potential to contain reactive framboidal pyrite. The court noted that should that be the stance adopted by Roadstone in its defence of the claim, then inspection might not be necessary because liability would hinge, not on the source of the material, but rather on the purposes for which the material was used.
The court ordered an inspection of the Murphy quarry at Hollywood, Co. Wicklow in the hope that by having access to two of the three sources of stone used in the Drumnigh Wood Estate, the plaintiffs by a process of elimination, would be able to identify the third source. The court adjourned the application in respect of Roadstone's quarries, to await the outcome of the inspection of the Murphy quarry and to await the filing of its defence.
The inspection of the Murphy quarry took place in October, 2017. Unfortunately, for technical reasons which the court does not need to address on this application, the parties are agreed on one thing, namely, that the inspection of the Murphy quarry and the samples taken therefrom, is not sufficient to identify with precision, the presence of Roadstone material in any of the allegedly affected houses in the Drumnigh development.
Following the inspection of the Murphy quarry in October, 2017, the plaintiffs issued a motion for judgment in default of defence. The first and third defendants countered with a motion seeking to compel replies to particulars prior to the delivery of their respective defences. The replies to particulars sought included particulars requiring the plaintiffs to identify the specific houses in which the respective defendants” stone was used. The court notes that it is precisely for that purpose that inspection is necessary.
The application to compel replies to particulars prior to the delivery of the defendants” respective defences, was the subject of a decision given by this court on 29th January, 2018. In essence the court held that while the particulars sought by the first and third defendants might well be necessary for the purposes of the hearing of the case, they were not necessary for the pleading of the case. Accordingly, the court adjourned the motions for particulars and directed that the defendants each file its defence within three weeks of 29th January, 2018.
The first and second defendants delivered their defence on 19th February, 2018. Having raised three preliminary objections, the substantive defence clearly puts the plaintiffs on full proof that Roadstone supplied stone to the Drumnigh Wood Estate; the volume of stone supplied; the use of the defendant's stone in the construction of houses; the use of the defendant's stone in the subfloor infill of the houses that are the subject of the proceedings; the defectiveness of the stone; and the fact of damage and/or potential damage to the houses as a consequence of such defects.
On 26th February, 2018, the plaintiff's solicitors wrote to the first and second defendants” solicitors highlighting those pleas which in effect, put the plaintiff on full proof of its claim. The plaintiffs” solicitors identified 18 specific pleas which put the plaintiffs on the fullest proof of their claim. While paras. 32(h) and 40 of the defence delivered leave open the plea that any damage which may have been caused to affected houses, resulted from a misuse by the plaintiff of the defendant's product, it is clear on the basis of the totality of those pleas, that the plaintiff is in fact, on full proof that the first defendant's product was used as subfloor infill in each relevant house; that same contained reactive framboidal pyrite; that the reactive framboidal pyrite has resulted in pyritic heave, with consequential damage to the fabric of the houses.
In light of the defence pleaded and the earlier judgment delivered by this court on 28th July, 2017, the plaintiffs requested confirmation that the first defendant would now agree to provide inspection and sampling facilities at its Huntstown, Belgard and Feltrim quarries. The court is satisfied that such an inspection is ‘ necessary… for the purpose of obtaining full information or evidence’ within the meaning of O. 50, r. 4, in light of the defence delivered on behalf of the first and second defendants.
The request for inspection facilities led to the generation of 18 further affidavits to be added to the 31 affidavits already filed in the earlier inspection motion. The first defendant filed four affidavits on 6th March, 2018. Two of those affidavits challenged and criticised the nature and method of the plaintiff's inspection of the third-named defendant's quarry at Hollywood in Co. Wicklow. In addition, there was an affidavit from Mr. Michael Buckley, Operations Director of Roadstone, in which he raises essentially the same objections that were raised on the initial inspection application in 2017: namely, health and safety risks associated with quarry faces; the alleged unsafe protocol for sampling material; the alleged non-representative nature of material sampled from quarry faces; and finally, he sets out the minimum steps which he says are required to protect Roadstone's property rights in the event that an inspection is ordered.
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