Hansfield Developments and Others v Irish Asphalt Ltd and Others

• Jurisdiction: Ireland
• Judge: Gilligan J.
• Judgment Date: 10 March 2010
• Neutral Citation: [2010] IEHC 330
• Court: High Court
• Date: 10 March 2010

[2010] IEHC 330

THE HIGH COURT

[Record No. 4691 P/2007]

Hansfield Developments & Ors v Irish Asphalt Ltd & Ors

COMMERCIAL

BETWEEN

HANSFIELD DEVELOPMENTS, VIKING CONSTRUCTION, MENOLLY PROPERTIES AND MENOLLY HOMES

PLAINTIFFS

AND

IRISH ASPHALT LIMITED, LAGAN HOLDINGS LIMITED, LAGAN CONSTRUCTION LIMITED, LAGAN CEMENT GROUP LIMITED (FORMERLY KNOWN AS LAGAN HOLDINGS LIMITED) AND LINDSTOCK LIMITED

DEFENDANTS

COMPETITION AUTHORITY v O'REGAN & ORS UNREP KEARNS 22.10.2004 2004/9/1848 2004 IEHC 330

LAFFERTY v DONEGAL CO COUNCIL 1946 IR 309

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BLOM-COOPER EXPERTS & ASSESSORS: PAST PRESENT & FUTURE 2002 21 CJQ 341

VAN ORSHOVEN v BELGIUM 1998 26 EHRR 55

KRCMAR & ORS v CZECH REPUBLIC 2001 31 EHRR 41

OWNERS OF THE BOW SPRING v OWNERS OF THE MANZANILLO II 2005 1 WLR 144 2004 4 AER 899 2004 EWCA CIV 1007

RSC O.36 r41

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

COMPETITION AUTHORITY v O'REGAN & ORS 2007 4 IR 737 2007/10/2009 2007 IESC 22

RSC O.63B r23

RSC O.64 r43

RANBAXY LABORATORIES LTD & ORS v WARNER-LAMBERT CO UNREP CLARKE 10.7.2007 2007/53/11270 2007 IEHC 256

COMPETITION AUTHORITY v BEEF INDUSTRY DEVELOPMENT SOCIETY LTD & BARRY BROS (CARRIGMORE) MEATS LTD UNREP MCKECHNIE 2006/11/2088 2006 IEHC 294

THE CITY OF BERLIN, IN RE 1908 P 110

THE KONING WILLEM II, IN RE 1908 P 125

HALSBURYS LAWS OF ENGLAND 4ED VOL 37 PARA 1076

OWNERS OF THE STEAMSHIP GANNET v OWNERS OF THE STEAMSHIP ALGOA 1900 AC 234

OWNERS OF THE SS MELANIE v OWNERS OF THE SS SAN ONOFRE 1927 AC 162

O'BRIEN v JUSTICE MORIARTY 2006 2 IR 474 2005/45/9517 2005 IEHC 457

PRACTICE AND PROCEDURE

Expert witness

Assessors to court - Independent professional expert - Increased length of hearing - Whether attendance of assessor could be limited to evidence relevant to expertise - Scope of relevant evidence - Whether unfairness if attendance limited - Whether opportunity for submissions if difference opinion of court and assessors - Whether opportunity undermined by absence of assessor - Advice of assessor - Whether trial could proceed - Organic nature cross-examination - Monitoring transcripts - Video link - Medical evidence - Competition Authority v O'Regan, [2004] IEHC 330 (Unrep, Kearns J, 22/11/2004) followed; Kiely v Minister for Social Welfare [1977] IR 267, Lafferty v Donegal County Council [1946] IR 309, Van Orshoven v Belgium (1999) 26 EHHR 55, Kremar v Czech Republic (2001) 31 EHHR 41, Owners Bow Spring v Owners of Manzanillo II [2004] EWCA Civ 1007 [2005] 1 WLR 144, Ranbaxy Laboratories Ltd v Warner-Lamber Co, [2007] IEHC 256 (Unrep, Clarke J, 10/07/2007), Competition Authority v Beef Industry Development Society Ltd [2006] IEHC 294 (Unrep, McKechnie J, 27/07/2006), City of Berlin [1908] P 110, Gannet (Owners of the Steamship) v Algoa (Owners of the Steamship) [1900] AC 234, Melanie (SS) v San Onofre (No.1)(SS) [1927] AC 162 and O'Brien v Moriarty (No 3) [2006] 2 IR 474 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 36, r 41; O 26, r 41; Os 63, 64 - European Convention on Human Rights Act 2003 ( No 20) - Trial continued - (2007/4691P - Gilligan J - 10/03/2010) [2010] IEHC 330

Hansfield Developments v Irish Asphalt Ltd

1 RULING made the 10th day of March. 2010 by Gilligan J.

2 1. On the 23 ^rd February, 2009, being the first day of the hearing of the within proceedings, Dr. Philip Nixon and Mr. Dermot Rooney were formally appointed as assessors to the court and each took an oath to the effect that they would well and truly assist the court to the best of their independent professional expertise without fear or favour or ill will to any person or party involved in these proceedings, and that they would not convey or discuss any aspect of their discussions with the trial judge with any person or corporate entity either pending or subsequent to the termination of the within proceedings. The format of the oath was agreed to by the solicitors for the parties.

3 2. Evidence has been adduced in relation to the issues in the case over some 50 days and in addition, a further 38 days of submissions were entertained in respect of cross motions arising from the failure of the parties to initially make full and proper discovery.

4 3. The two assessors have now been in attendance for some 90 days. The trial is due to re-commence today, the 10 ^th March, 2010, and it is anticipated without any certainty that the taking of evidence will endure for a further twelve months, thereby bringing the duration of the hearing of the action to probably a period of time well in excess of two years.

5 4. As far back as the 31 ^st July, 2008, during the course of case management the issue arose as to the retention of two assessors in respect of different areas of expertise and these were specifically referred to as being in the fields of geology and engineering.

6 5. Dr. Philip Nixon was identified as a potential assessor in the field of geology and this is confirmed in a letter of the 7 ^th October, 2008, from the plaintiffs' solicitors to the defendants' solicitors wherein the CV of Dr. Philip Nixon, Geologist, was forwarded with an indication that the plaintiffs solicitors would be recommending him to the court. On Thursday the 30 ^th October, 2008, the respective solicitors to the parties held a telephone conference with Dr. Nixon during the course of which Mr. Peter Lennon's solicitors specifically raised the issue of Dr. Nixon's qualifications for the position as assessor, and specifically asked Dr. Nixon if it was fair to describe him as a chemist geologist to which Dr. Nixon replied that he was a Chemist, that his professional career had obviously had a lot to do with geological issues and that he had picked up quite a lot of knowledge in this regard, but did not have a professional qualification in geology.

7 6. The next day, the 31 ^st October, 2008, Mr. Lennon wrote to the plaintiffs solicitors indicating that the first and fifth named defendants solicitors considered that Dr. Nixon was a suitably qualified person to sit if chosen by the judge as an assessor to deal with the geo-technical aspects of the case if and when they arise during the preliminary outings to the estates and the hearing of the action itself.

8 7. Prior to the commencement of the trial on the 23 ^rd February, 2009, Dr. Philip Nixon was initially advised that the case would commence in December, 2008 and that it was expected that the case would run for twelve weeks. Without notice to him the date for commencement was changed to the 23 ^rd February, 2009, and Dr. Nixon was not informed of any contra indication as regards the length of time the case would take, but with the case starting on the 23 ^rd February, 2009, he was advised that allowing for the specific weeks fixed for law terms that the conclusion of the hearing would take place on the 28 ^th May, 2008, which clearly should have read 2009. Dr. Nixon replied to this information that he had already made commitments for a period of the 6 ^th to the 12 ^th June, 2009, in Scotland and then expected to stay on in Scotland, and indicated that when he made these arrangements it seemed comfortably beyond any likely conclusion date for the case and that now it was only just within the remit. Subsequently in May, 2009 Dr. Nixon was advised by the solicitors for the plaintiffs that it was likely that the case would go on until November, 2009 and as previously outlined herein, the up to date situation is that the case is now expected to run into the year 2011.

9 8. A difficulty has arisen for Dr. Nixon and the court advised the parties on the 25 ^th February, 2010, that:-

10 Dr. Philip Nixon of St. Albans, London, was appointed to assist the court both during the hearing and prior to judgment being handed down in properly understanding and clarifying where necessary the geological evidence so as to enable the court to discharge his obligations to give a reasoned judgment."

11 Dr. Nixon has requested that for family reasons, (bearing in mind that when he was asked to take up the position of court appointed assessor, he was advised by both parties that the case would last a number of months and at the time it was clearly envisaged the case would finish by the end of July, 2009) that his role can be revised to only necessitating his attendance during the course of the evidence relating to the geological aspects of the case when this evidence is taken between October and December, 2010.

12 9. To put this aspect in context, the case at hearing has effectively divided itself into modules relating to the geological evidence and the construction evidence, and at this point in time the plaintiffs are about to embark on their construction evidence having completed the geological evidence. Allowing for a reasonable period of time, it is anticipated that the plaintiffs construction evidence will take until the end of July, 2010 and that the ongoing hearing in the Michaelmas term in October, 2010 would recommence with the recall of Dr. Maher and certain other relevant geological witnesses who have already given evidence on behalf of the plaintiffs but whose recall is necessary arising out of failures with discovery of documents, and then it is anticipated that the defendants will call their geological evidence and it is reasonably anticipated that that evidence should be completed by December, 2010 and hence the reference by Dr. Nixon to attending at the hearing between October and December, 2010.

13 10. The court asked the parties legal representatives for their views on the situation that has arisen.

14 11. Mr. O' Moore on the plaintiffs' behalf takes the view that they are understanding of Dr. Nixon's position and would be anxious obviously that he can contribute in...