James Elliott Construction Ltd v Lagan and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 19 October 2015
• Neutral Citation: [2015] IEHC 631
• Court: High Court
• Date: 19 October 2015

[2015] IEHC 631

THE HIGH COURT

[No. 2229 P./2014]

James Elliott Construction Ltd v Lagan & Ors

COMMERCIAL

No Redaction Needed

Approved Judgment

BETWEEN

JAMES ELLIOTT CONSTRUCTION LIMITED

PLAINTIFF

AND

KEVIN LAGAN, TERRY LAGAN, JOHN GALLAGHER, IRISH ASPHALT LIMITED AND LAGAN CEMENT GROUP LIMITED

DEFENDANTS

Practice & Procedures – O. 50, r. 4 of the Rules of Superior Courts – Inspection of mines – Damage – Deceit

Facts: The plaintiff sought an order pursuant to O. 50, r. 4 of the Rules of Superior Courts directing the fourth named defendant to permit the plaintiff to inspect the rock at the fourth named defendant's quarry. The plaintiff alleged deceit against the fourth named defendant as the use of the product from the fourth named defendant's quarry caused fundamental damage to the developments of the plaintiff. The main issue of contention between the parties pertained to the number of samples which were to be taken by the plaintiff as the plaintiff wished to take six boreholes samples and one bulk sample while the defendants wanted the plaintiff to drill 53 boreholes as it would be representative of the entire quarry.

Ms. Justice Costello granted an order that the plaintiff might inspect the relevant lands for the purpose of drilling six boreholes and taking one large bulk sample from the quarry but adjourned the case for a meaningful drafting of the said order pending the supply of the requisite information with respect to identification, possession and expert information by the fourth named defendant. The Court opined that before making an order under O. 50, r. 4 of the Rules of Superior Courts, the Court should assess whether the concerned inspection was necessary and expedient for the purpose of obtaining full information and protected the interests of the opposing party. The Court found that the plaintiff had established that the inspection of samples was necessary for the fair disposal of the case and no serious prejudice would likely be caused to the defendants. The Court held that the fourth named defendant on its own could carry out inspection of more samples and present an expert report to rebut the contentions advanced by the plaintiff.

1 1. The plaintiff seeks an order pursuant to O. 50, r. 4 of the Rules of Superior Courts directing the fourth named defendant to permit the plaintiff, its servants or agents, to inspect the rock at the fourth named defendant's quarry at Bay Lane, Kilshane, Finglas, Dublin 11, to take and remove samples of such rock and permission to drill to obtain such samples. In the proceedings the plaintiff alleges deceit against the fourth named defendant, Irish Asphalt Limited ("IAL"), and the other defendants on foot of what the plaintiff says was a decision to sell aggregate produced at Bay Lane as Clause 804 and 3 inch down, either knowing that it could not conform to the ordinary characteristics of those products or recklessly as to whether or not it could so conform. The plaintiff alleges that the product it purchased from IAL was not either Clause 804 and/or 3 inch down and that when the plaintiff used the product in a variety of developments, the product failed due to the fact, inter alia, that it was not Clause 804 and/or 3 inch down. The plaintiff says that the failure caused fundamental damage to the developments and the plaintiff seeks damages and an indemnity from IAL and the other defendants as a result.

2 2. Order 50, r. 4 provides as follows:-

"[t]he Court, upon the application of any party to a cause or matter, and upon such terms as may be just, may make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid may authorise any person to enter upon or into any land or building in the possession of any party to such cause or matter and for all or any of the purposes aforesaid may authorise any samples to be taken or any observations to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence."

3 3. In this case the defendants agree that it is appropriate and necessary that the plaintiff inspects the quarry and that samples should be taken. The dispute between the parties relates to the samples which should or ought to be taken. The plaintiff wishes to drill six boreholes 102 mm wide up to a depth of 60 metres at locations to be finalised following an initial inspection of the site. It also wishes to take one bulk sample from the quarry face in the south west of the quarry. Unusually, the defendants do not object to the drilling of boreholes but wish the plaintiff to drill 53 boreholes and not to confine itself to six. They say that six boreholes will not be representative of the quarry and will therefore not give evidence which is representative of the rock in the quarry, whereas the extensive grid of boreholes which they propose will give a truer representative picture of the quarry as a whole. They very strongly oppose the taking of a bulk sample. They argue that the case is a claim in deceit and it relates fundamentally to the knowledge of the defendants of the quality of the rock at Bay Lane. They say this is established by taking cores by means of boreholes. The taking of a bulk sample is not the appropriate way to establish the quality of the rock, which should be established by means of cores extracted from boreholes.

4 4. They further object to the fact that the plaintiff intends to use the bulk sample to try and so far as is possible to replicate the production process employed by IAL when the quarry was in production in order to determine whether or not quarried rock was capable of producing Clause 804 or 3 inch down. For a variety of reasons they say that this is not possible and that permitting the taking of a bulk sample with a view to carrying out a trial production is not necessary within the meaning of the rule.

5 5. In order to determine the issues between the parties it is necessary to consider the scope of the Court's power to order inspection of lands and the taking of samples and the principles upon which such power ought to be exercised.

6 6. Order 50, r. 4 permits the Court to authorise any samples to be taken " which maybe necessary or expedient for the purpose of obtaining full information or evidence." In Hearne v. Marathon Petroleum Ireland Ltd. [1998] 4 I.R. 186, Morris P. was asked to consider an application to inspect the defendant's oil drilling rig. He considered the two decisions of Murphy J. in Wymes v. Crowley (Unreported, High Court, Murphy J., 27 ^th February, 1987) and Bula Ltd. v. Tara Mines Ltd. (No. J) [1987] I.R. 85 and held at p. 189:-

"[t]his then is, in my view, a clear indication of the principles which should guide a court in considering applications of this sort. It must in the first instance ensure that circumstances are created in which the plaintiff will have facilities for presenting his case to the court so as to enable the court to have the benefit of all the advices and information which the plaintiff may wish to make available to the court. On the other hand the defendant's rights as a property owner must be protected during this inspection so as to ensure that the inconvenience of the inspection is not injurious to his rights as a property owner."

7 7. It is thus clear that the plaintiff is to have facilities in order to present the case it wishes to advance. It is given the assistance afforded by a court order made pursuant to the Rules in order that the court will have the benefit of all the advices and information which the plaintiff may wish to make available to the court.

8 8. In Bula Ltd. v. Tara Mines Ltd. (No. 1), Murphy J. was asked to make an order permitting the plaintiff to inspect the mine of the defendant in order to ascertain whether or not there had been a trespass onto the first name plaintiff's lands and whether or not there had been unlawful extraction of any mineral ore from under the first named plaintiff's lands and whether or not pillars required for the safety purposes between the two mines had been maintained or compromised. Murphy J. commenced his judgment by observing that the claims made on behalf of the plaintiffs were extremely serious and would appear to be extremely improbable. At p. 92, he stated that:-

"[i]t seems to me (hat the rights of litigants to seek and the power of the courts to grant relief or assistance of a procedural nature must be viewed in the context of litigation and the administration of justice as a whole."

In the circumstances of the case where the plaintiffs could not have access to the Bula ore body or the ground under the Bula lands, he held (at p. 93):-

"[i]n these circumstances it seems to me that it would be impossible to vindicate the plaintiffs' right to litigate if they were not afforded an appropriate opportunity of inspection to attempt to substantiate the claim which they have made."

9 9. It is clear therefore that the exercise of the power under 0. 50, r. 4 must be viewed in the light of vindicating a plaintiff's right to litigate (or a defendant's right to defend a...