Hansfield Developments Ltd & Ors -v- Irish Asphalt Ltd & Ors [Part 1 & Associated Schedules], [2010] IEHC 32 (2010)

Parts:Hansfield Developments Ltd & Ors, Irish Asphalt Ltd & Ors [Part 1 & Associated Schedules]
Reporting Judge:Gilligan J.
Docket Number:2007 4691 P
 
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THE HIGH COURT

COMMERCIAL2007 4691 PBETWEENHANSFIELD DEVELOPMENTS, VIKING CONSTRUCTION, MENOLLY PROPERTIES AND MENOLLY HOMESPLAINTIFFSAND

IRISH ASPHALT LIMITED, LAGAN HOLDINGS LIMITED, LAGAN CONSTRUCTION LIMITED

AND

BY ORDER

LAGAN CEMENT GROUP LIMITED (FORMERLY LAGAN HOLDINGS LIMITED)

AND

BY ORDER

LINSTOCK LIMITEDDEFENDANTS

JUDGMENT of Mr. Justice Gilligan delivered on the 12th day of February, 2010 PART I1. This is an application brought by way of a notice of motion on the defendants' behalf to dismiss the plaintiffs claim for failure to make discovery or in the alternative for an order that the court doth declare a mistrial.

2. The court is conscious that some 400 homeowners from the Drynam, Myrtle and Beaupark estates in North County Dublin have instituted legal proceedings against the plaintiffs in respect of alleged defects in houses which they purchased from the plaintiffs, and that the plaintiffs in turn have joined the defendants in these proceedings as third parties in the homeowners' proceedings.

3. Accordingly, having regard to the position of the home owners and bearing in mind the reliance placed by Mr. O'Neill on the first and fifth named defendants behalf in moving this motion on the written submissions as submitted to the court, I propose to attach to this judgment by way of a schedule a review of the extensive affidavits that have been filed by both parties in respect of this motion, the first and fifth named defendants written submissions and the written submissions as filed on the plaintiffs behalf in reply to the first and fifth named defendants written submissions. The second, third and fourth named defendants did not file written submissions and I have separately in the judgment referred to the oral submissions of Mr. MacCann, on their behalf.

4. The factual background to the present motion is set out in the outline written submissions filed on behalf of the first and fifth named defendants, and the following is a review of that information.

These proceedings were commenced by a plenary summons issued on 22nd June 2007, pursuant to which the plaintiffs sought, inter alia, a declaration that the defendants were obliged to indemnify the plaintiffs in respect of costs, expenses, losses, liabilities and claims, arising from the construction of residential units within the Drynam, Myrtle and Beaupark estates constructed using aggregate infill susceptible to swelling and allegedly containing unacceptable excessive levels of pyrite, damages for breach of contract and damages for negligence.

The Statement of Claim alleged that the infill supplied by the first named defendant from its Bay Lane quarry was causing heaving within and through the floors of the residential units in the three estates. It was alleged that "this pressure result[ed] in the bulging and cracking of floors and/or the cracking of partition walls and door frames as a consequence of upward pressure from the floors on which the said walls and door frames are constructed" (paragraph 17 of the Statement of Claim)The proceedings were entered into the Commercial List in November 2007 and were subject to extensive case management up to the trial of the action.

The plaintiffs alleged that the fill material supplied by the first named defendant had been used under the ground floor units throughout the three estates and contained pyrite which had undergone a chemical process resulting in the production of gypsum and the expansion of the fill material, which in turn was causing heave with resulting damage to the properties in the three estates.

In their Defence, delivered on 31st January 2008, the defendants denied the contention that the damage which was manifesting in these estates (where it existed) could be attributed to pyritic induced heave and, in fact, was caused by a number of contributing factors, including, inter alia, defective design and construction, poor workmanship, inadequate ground conditions and deficient quality control during the construction of the three estates.

In particular, it was pleaded by the defendants that pyritic swelling was not occurring in the manner alleged, that no expansion of the infill resulting in heave was taking place underneath the ground floor slabs in the units in the three estates, and that the damage which was manifesting (where it did manifest) was largely insignificant, was not of a structural nature and was attributable to relatively common defective construction practices. Furthermore, where the defects in question were more significant, the damage was more isolated in nature and was explainable by specific problems in the construction of the property in question.

The defendants maintain that they have been at a distinct disadvantage from the outset in that they were not involved in the construction of these three estates and, therefore, had no access to contemporaneous information or knowledge relating to what actually occurred between 2003 and 2007 (the time during which the three estates were built). On this basis a large scale information gathering exercise had to be implemented.

A Notice for Particulars was delivered on behalf of the defendants (through their previous solicitors) on 10th December 2007. This notice sought extensive particulars relating to a huge range of issues concerning construction and, in particular, the extent to which and the locations in which it was alleged the plaintiffs used the defendants' infill during the construction of the properties in the estates.

Replies to these Particulars were furnished on 10th January 2008, following which the defendants delivered their Defence on 31st January 2008. A Reply to the Defence was delivered on the 14th February 2008. The defendants sought voluntary discovery by way of a letter dated 10th March 2008. There followed an exchange of correspondence between the solicitors for the plaintiffs and the defendants relating to that letter, which ultimately culminated in an agreement by the plaintiffs to discover 102 categories of discovery, covering a very broad range of issues relating to both the construction of the estates and the development of the allegation of pyritic induced heave since the estates were constructed and the homes sold.

Ultimately, the plaintiffs made discovery in an affidavit sworn by Mr. Brendan O'Byrne on 30th June 2008. There followed a supplemental affidavit sworn by him on 15th July 2008. Pursuant to these affidavits the plaintiffs discovered 56,070 non-privileged documents and 20,990 documents in respect of which privilege was asserted. A review of these documents was conducted between July and September 2008 and following this review a letter was sent by the defendants' solicitors to the plaintiffs' solicitors on 6th October 2008 in which a range of queries were raised. Ultimately, and on foot of directions issued by this Court, these queries led to an application to dismiss or strike out the plaintiffs' case for failing to make proper discovery, or, in the alternative, for an order for further and better discovery. An exchange of affidavits took place, following which the motion was compromised. Pursuant to that compromise, a Supplemental affidavit of Discovery was sworn by Mr. O'Byrne on 23rd December 2008.

Throughout the period during which these exchanges relating to the plaintiffs' discovery took place, the proceedings were under regular case management by this Court. In particular, in addition to the discovery issues, this Court had suggested with the agreement of the parties, that a selection of houses be chosen which would be representative of the issues arising in the trial. Ultimately, after intense negotiation between the parties the selection or "basket" of houses, was chosen and it culminated in a "Case Management Agreement".

Thereafter, directions were given whereby the plaintiffs were to furnish their witness statements on or by 22nd December 2008 and the defendants to furnish their witness statements on or by 2nd February 2009. A trial date was also set for 23rd February 2009.

The plaintiffs furnished their witness statements on the 22/23nd December 2008, encompassing well over 1,000 documents. In response the defendants furnished their witness statements on the 2/3rd February 2009. The plaintiffs also served a re-amended Statement of Claim prior to Christmas 2008 and a second re-amended Statement of Claim on 30th January 2009.

Further motions relating to discovery and a challenge to privilege arose following on from the affidavit of Brendan O'Byrne dated 23rd December 2008. The trial commenced on 23rd February 2009 and ran for 52 days of hearing.

Evidence relating to the nature and process of pyritic induced heave has been heard during the course of the trial. In that regard the following persons have given evidence on behalf of the plaintiffs. These are Michael Maher, Alan Bromley, Fred Shrimer, Alain Blanchette, Robert Donnelly, Brian Hawkins, Kieran Butterly, Gareth Healy, Peter Strogen, Robbie Goodhue, Marc-Andre Berube and Trevor Orr. In addition to the foregoing there has been a number of site visits during the course of the trial at which Paul Forde (on behalf of the plaintiffs) and Pearse Sutton (on behalf of the defendants) have given evidence.

A vast amount of issues have been examined, canvassed and heard in evidence in the trial to date. In addition to this, a huge volume of reports and documentation have been prepared for the trial.

Most of the queries which arose out of the discovery review between July and September 2008 pointed to the absence of specific categories of documents some of which have since been disclosed in the new discovery furnished in late June and August 2009. As has been made clear in the affidavits of Peter Lennon grounding this motion, the queries themselves demonstrated that the plaintiffs knew of the defendants' concerns with respect to the absence of documentation at least 8 months prior to the new discovery being furnished in late June and August 2009.

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