Gunning v Permagreen Insulation (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 17 October 2018
• Neutral Citation: [2018] IEHC 573
• Docket Number: [2015 No. 8412 P.]
• Court: High Court
• Date: 17 October 2018

[2018] IEHC 573

THE HIGH COURT

Barr J.

[2015 No. 8412 P.]

BETWEEN

MICHAEL GUNNING

AND

SILVIA GUNNING

PLAINTIFFS

AND

PERMAGREEN INSULATION (IRELAND) LIMITED

DEFENDANT

Liberty to amend defence – Negligence – Breach of contract – Defendant seeking liberty to amend its defence – Whether the amendment would unfairly prejudice the plaintiffs

Facts: The plaintiffs, Mr and Ms Gunning, were the owners of a house in Co. Westmeath. They commenced building their house in 2009. In 2011, they retained the defendant, Permagreen Insulation (Ireland) Ltd, to provide insulation in the building, during the course of its construction. They alleged that as a result of negligence on the part of the defendant, its servants or agents, extensive damage had been caused to the property, to such an extent that it would be necessary to demolish the structure and rebuild it. The plaintiffs alleged that as a result of this state of affairs, they had suffered much loss and damage. In a defence filed on 14th April, 2016, the defendant admitted that due to its breach of contract and negligence, “certain damage” was caused to the plaintiffs’ house. By notice of motion dated 3rd July, 2018, which came before the High Court on 15th October, 2018, the defendant sought liberty to amend its defence pursuant to the provisions of O. 28, r. 1 of the Rules of the Superior Courts, so as to effectively plead that while it was responsible for some damage to the plaintiffs’ house, other damage was due to defects in the design and/or construction of the property, for which the defendant was not responsible. In addition, it was alleged that, due to the fact that the plaintiffs had failed to carry out remedial works to the property in the intervening years, further damage had been caused thereto. The plaintiffs opposed the application to amend the defence, primarily on the basis that it would cause extensive prejudice to them if such amendment were allowed. The plaintiffs submitted that as the defendant had initially accepted liability for damage to the plaintiffs’ property, it would be unfair to allow the defendant to amend its defence so as to place the blame for such damage on other parties, who were as yet unidentified; the plaintiffs would be put in a particularly prejudicial position, because they would be out of time to institute any proceedings as against such third parties.

Held by Barr J that if he thought that the initial defence filed on behalf of the defendant conceded that it was liable for all the damage in the plaintiffs’ property, then he would not allow the amendment; however, that defence was carefully drafted and merely conceded that “certain damage” had been caused by its wrongdoing. In those circumstances, Barr J held that the onus of proving what actual damage was caused by the wrongdoing of the defendant remained on the plaintiffs. He was satisfied that the amendment to the pleadings merely put the plaintiffs on formal notice of the case which the defendant would make in relation to the extent of damage which it alleged was due by other parties, who were not parties to the proceedings. In the circumstances, Barr J was satisfied that the amendment would not unfairly prejudice the plaintiffs; the amendment sought would clarify the issues which would have to be determined at the trial of the action.

Barr J held that he would permit the defendant to amend its defence in the manner sought in its notice of motion.

Application granted.

JUDGMENT of Mr. Justice Barr delivered on the 17th day of October, 2018

Introduction

1 This application concerns a motion brought by the defendant seeking liberty to amend its defence pursuant to the provisions of O. 28, r. 1 of the Rules of the Superior Courts.

2 To state the issues in a nutshell, the plaintiffs are the owners of a house in Co. Westmeath. They commenced building their house in 2009. In 2011, they retained the defendant to provide insulation in the building, during the course of its construction. They allege that as a result of negligence on the part of the defendant, its servants or agents, extensive damage has been caused to the property, to such an extent that it will be necessary to demolish the structure and rebuild it. The plaintiffs allege that as a result of this state of affairs, they have suffered much loss and damage.

3 In a defence filed on 14th April, 2016, the defendant admitted that due to its breach of contract and negligence, ‘ certain damage’ was caused to the plaintiffs” house. By notice of motion dated 3rd July, 2018, which came before the High Court on 15th October, 2018, the defendant seeks liberty to amend its defence, so as to effectively plead that while it was responsible for some damage to the plaintiffs” house, other damage was due to defects in the design and/or construction of the property, for which the defendant is not responsible. In addition, it is alleged that, due to the fact that the plaintiffs have failed to carry out remedial works to the property in the intervening years, further damage has been caused thereto.

4 The plaintiffs oppose this application to amend the defence, primarily on the basis that it would cause extensive prejudice to them, if such amendment were allowed; in particular, as the defendant had initially accepted liability for damage to the plaintiffs” property, it would be unfair to allow the defendant to amend its defence so as to place the blame for such damage on other parties, who are as yet unidentified. The plaintiff would be put in a particularly prejudicial position, because they would be out of time to institute any proceedings as against such third parties.

Background

5 As already noted, the plaintiffs commenced construction of their dwelling house in 2009. It is pleaded that in 2011, they retained the defendant to provide cavity insulation in the property, which was still under construction. It is pleaded that the defendant installed the insulation on 10th October, 2011, and subsequent days. The plaintiffs state that thereafter, significant cracking became apparent. Upon investigation, it transpired that this was due to the negligent manner in which the insulation product had been installed in the premises. It is pleaded that by letter dated 13th September, 2012, the defendant's insurance company, Zurich Insurance plc, confirmed that it was not disputing liability.

6 Proceedings were commenced by issuance of a plenary summons on 19th October, 2015. A statement of claim was delivered on 2nd December, 2015. After an exchange of a notice for particulars and replies thereto, a defence was filed on behalf of the defendant on 14th April, 2016. While certain matters were put in issue between the parties, it was admitted that on 10th October, 2011, the defendant commenced installation of the insulation product in the plaintiffs” house. The defence went on to contain the following significant admission at para. 8:-

‘8. Whilst it is not admitted that the defendant did not install the product correctly in a workman like manner, in accordance with best practice or with the manufacturers approved practice, the defendant admits that certain damage was caused to the plaintiffs” house by the installation of the product, and the plaintiffs are not required to prove liability in these proceedings, which was conceded in correspondence to the plaintiffs by the defendant's insurers on 13th September, 2012.’

7 At para. 21 of the defence, it was denied that the statement of claim had set out an accurate account of the findings made by an engineering company, which had examined the premises on behalf of the defendant, it went on to state as follows: ‘ it is admitted that on or about 13th September, 2012, the defendant's insurance company, Zurich Insurance plc, confirmed that it was not disputing liability’.

8 The defence denied that the plaintiffs had suffered the alleged or any loss or damage, inconvenience or expense. It went on to specifically deny that the only remedial solution was to demolish the property and rebuild it.

9 Subsequently, the defendant changed its solicitor and a further notice for particulars was raised in relation to the plaintiffs” claim. That was responded to on 7th July, 2017. A further notice for particulars was raised by the defendant's solicitor on 7th December, 2017. I have not been furnished with any replies thereto. A notice of trial was served by the plaintiffs” solicitor on 8th December, 2017.

10 On 16th May, 2018, the defendant purported to furnish replies to a notice seeking particulars which had been sent by the plaintiff on 9th June, 2016. In those Replies, the defendant set out its contention that some of the damage to the plaintiffs” property was due to failures in design and/or construction of the property, for which the defendant was not responsible or liable. The defendant set out particulars of the matters which it alleged constituted failures to design and/or construct the property properly.

11 By notice of motion issued on 3rd July, 2018, the defendant seeks to amend its defence and in particular, para. 8 thereof in the following way:-

‘8. Whilst it is not admitted that the defendant did not install the product correctly in a workman like manner, in accordance with best practice or with the manufacturers...