Clarion Quay Management Company Ltd by Guarantee v Dublin City Council, Pierce Contracting Unlimited Company, John McCormack, Brian McCormack, Niall McCormack, Alan McCormack and Patrick Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 811
• Court: High Court
• Docket Number: [2018 No. 5619 P.]

Between

Clarion Quay Management Company Limited by Guarantee

Plaintiff

and

Dublin City Council, Pierce Contracting Unlimited Company, John McCormack, Brian McCormack, Niall McCormack, Alan McCormack and Patrick Kelly

Defendants

[2021] IEHC 811

[2018 No. 5619 P.]

[2018 No. 172 COM.]

THE HIGH COURT

COMMERCIAL

Development – Liability – Issues to be tried – High Court directing issues to be tried in advance of the trial of the action – Whether the plaintiff was entitled to rely on the Multi-Unit Developments Act 2011 in the proceedings

Facts: The plaintiff, Clarion Quay Management Company Limited by Guarantee (Clarion), commenced proceedings against the first defendant, Dublin City Council (DCC), in June, 2018. The second to seventh defendants who were sued as members of a partnership called the “Campshire Partnership” (Campshire) were joined as defendants on the application of the plaintiff on 12th October, 2018. Clarion was the owners’ management company in respect of a mixed-use development called Clarion Quay which was located north of the River Liffey in Dublin 1. DCC was sued as the statutory successor in title of the Dublin Docklands Development Authority (DDDA) and was the registered owner of the lands on which the Clarion Quay development had been constructed. DDDA entered into a joint venture agreement dated 21st March, 2000 (the JVA) with Campshire for the development of Clarion Quay. Clarion and DDDA (and another entity) entered into a Management Company Agreement dated 13th July, 2001 (the MCA) in respect of Clarion Quay. DCC succeeded to the rights and obligations of the DDDA under that agreement. Clarion Quay was constructed under the JVA. Clarion contended that there were multiple defects in Clarion Quay for which it contended that DCC and Campshire were liable. On the consent of the parties, the High Court (Quinn J) made an order on 4th July, 2019 directing the following issues to be tried in advance of the trial of the action: (1) whether DCC (and its predecessor) was bound by the provisions of general condition 36(d) of the Law Society General Conditions of Sale (1995 ed); (2) whether the terms pleaded at para. 20 of the statement of claim were implied terms of the MCA; (3) whether the plaintiff was entitled to rely on the Multi-Unit Developments Act 2011 in the proceedings; and if so, whether the defendants, as developers within the meaning of the 2011 Act, were obliged to complete the development of the common areas of Clarion Quay in accordance with, inter alia, the Building Regulations, and to indemnify the plaintiff in respect of all claims made against the plaintiff of whatever nature or kind in respect of acts or omissions by the defendants in the course of works connected with the Clarion Quay development.

Held by Barniville J that DCC was bound by the provisions of general condition 36(d) of the Law Society General Conditions of Sale (1995 ed). He held that the terms at para. 20 of the statement of claim were not implied terms of the MCA. He held that the plaintiff was not entitled to rely on the 2011 Act in the proceedings as the Circuit Court had exclusive jurisdiction under s. 26 of that Act in respect of those parts of the plaintiff’s case which relied on or referred to that Act. He held that the plaintiff was not precluded from maintaining other causes of action, not based on the 2011 Act, in the proceedings or in the Circuit Court, in the circumstances.

Barniville J held that the provisions of the 2011 Act on which the plaintiff relied in respect of the issues referred to in issue (4) did not have retrospective effect. Further, he held that insofar as the plaintiff sought to rely on those provisions of the Act, and in the event that the defendants were “developers” within the meaning of the Act, the defendants were not obliged, pursuant to those provisions of the Act, (a) to complete the development of the common areas in accordance with, inter alia, the Building Regulations and (b) to indemnify the plaintiff in respect of all claims made against it of whatever nature or kind in respect of acts or omissions by the defendants in the course of works connected with the Clarion Quay development. However, he held that this conclusion was expressed solely by reference to the plaintiff’s case that the defendants were subject to those obligations under the 2011 Act and not otherwise.

Determination of issues directed to be tried.

JUDGMENT of Mr. Justice David Barniville delivered on the 21 ^st day of December, 2021

Index

A. Introduction	2
B. Issues Directed to be Tried	2
C. Facts Agreed by the Parties for the Purposes of the Trial of the Preliminary Issues Only	3
D. Agreed Contractual Documents	6
E. The Pleaded Case	13
F. Trial of Preliminary Issues	19
G. Structure for Determination of the Issues	19
H. Issues (1) and (2): The Contractual Issues	20
I: Issues (3) and (4): Issues Concerning the MUDs Act	57
J: Conclusions	97

A. Introduction

1 . This is my judgment on a number of issues which were directed to be tried pursuant to O. 25, r. 1 RSC by order of the High Court (Quinn J.) made on 4 ^th July, 2019 in these proceedings. The proceedings were commenced by the plaintiff, Clarion Quay Management Company Limited by Guarantee (referred to in this judgment as “Clarion” or the plaintiff), against Dublin City Council (“DCC”) in June, 2018. The remaining defendants, the second to seventh defendants who are sued as members of a partnership called the “Campshire Partnership” (referred to as “Campshire”) were joined as defendants on the application of the plaintiff on 12 ^th October, 2018. Clarion is the owners' management company in respect of a mixed-use development (apartments and retail) called Clarion Quay which is located north of the River Liffey in Dublin 1. DCC is sued as the statutory successor in title of the Dublin Docklands Development Authority (“DDDA”) and is the registered owner of the lands on which the Clarion Quay development has been constructed. DDDA entered into a joint venture agreement dated 21 ^st March, 2000 (the “JVA”) with Campshire for the development of Clarion Quay. Clarion and DDDA (and another entity to which reference will be made later) entered into a Management Company Agreement dated 13 ^th July, 2001 (the “MCA”) in respect of Clarion Quay. DCC has succeeded to the rights and obligations of the DDDA under that agreement. Clarion Quay was constructed under the JVA. In the proceedings, Clarion contends that there are multiple defects in Clarion Quay for which it contends that DCC and Campshire are liable.

B. Issues Directed to be Tried

2 . On the consent of the parties, the High Court (Quinn J.) made an order on 4 ^th July, 2019 (the “Order”) directing the following issues to be tried in advance of the trial of the action:-

• (1) Whether DCC (and its predecessor) is bound by the provisions of general condition 36(d) of the Law Society General Conditions of Sale (1995 ed.);

• (2) Whether the terms pleaded at para. 20 of the statement of claim are implied terms of the MCA;

• (3) Whether the plaintiff is entitled to rely on the Multi-Unit Developments Act, 2011 (the “MUDs Act”) in these proceedings; and

• (4) If so, whether the defendants, as developers within the meaning of the MUDs Act, are obliged to complete the development of the common areas of Clarion Quay in accordance with, ( inter alia), the Building Regulations, and to indemnify the plaintiff in respect of all claims made against the plaintiff of whatever nature or kind in respect of acts or omissions by the defendants in the course of works connected with the Clarion Quay development.

3 . The Order further provided that those issues were to be determined on the pleadings already delivered, including the documents appended to the plaintiff's replies to particulars dated 15 ^th January, 2019 (which were listed in schedule 1 to the Order) and on the basis of the facts pleaded in the statement of claim which was delivered on 17 ^th October, 2018. The Order further noted that the defendants were fully reserving their position as to the facts alleged in the statement of claim and that those alleged facts were being accepted only for the purposes of the trial of the preliminary issues.

4 . The parties exchanged detailed and helpful written submissions in advance of the hearing of these issues. However, I found it difficult to follow precisely what facts were being accepted by the defendants for the purposes of the trial of these preliminary issues. Consequently, I directed that the parties agree a statement of facts. The parties did agree a statement of facts which was provided to me following the conclusion of the hearing on the issues directed to be tried. I set out below the facts set out in that statement. However, the facts set out in that statement are not the only relevant facts for the purposes of the trial of these issues. It was apparent to me that there are other relevant facts which must be taken either to have been agreed by the parties for the purposes of the trial of the preliminary issues or, alternatively, which could not be disputed, such as the existence of other relevant proceedings. I will refer to those other facts after I set out the facts expressly agreed by the parties in the statement of agreed facts.

C. Facts Agreed by the Parties for the Purposes of the Trial of the Preliminary Issues Only

5 . The following facts were agreed by the parties for the purposes of the trial of the preliminary issues the subject of this judgment.

6 . The plaintiff, Clarion, is the owners management company (“OMC”) with respect to the Clarion Quay development in Dublin 1 (the “development”). The development is a mixed-use development comprising 184 apartments and twelve retail units spread over twelve blocks together with car...