McLoughlin v Ballymore Residential Ltd, Flannery v Roadstone Dublin Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Eagar |
| Judgment Date | 23 November 2020 |
| Neutral Citation | [2020] IEHC 627 |
| Date | 23 November 2020 |
| Court | High Court |
| Docket Number | [2012 No. 5484 P.] |
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[2020] IEHC 627
Robert Eagar
[2012 No. 5484 P.]
[2017 No. 1284 P.]
THE HIGH COURT
This is a judgment in respect of the third party notice of motion dated the 21st August, 2020. The court proposes to set out the history of the proceedings in this matter before dealing with the issues arising in the notice of motion.
The court's judgment will deal with the Emmett McLoughlin case and the effect of this will also cover the issues in the Mary Flannery case.
Pyrite is found in many types of rock and is known to be responsible for swelling in some cases. The mineral can react with other minerals to form a new substance. This newly formed substance occupies a much greater volume than Pyrite and is the cause of extreme swelling which can lead to structural problems in buildings.
Allegedly, a number of housing developments had in-fill material supplied by the defendants in these cases which contained a high level of the mineral pyrite which as a matter of probability caused the floors of the buildings to heave upwards causing severe structural damage.
Initially, individuals whose homes and commercial properties had been damaged as a result of the presence of the mineral Pyrite had to take proceedings. Subsequently, Premier Guarantee, the insurance brokers in respect of the buildings, took over the actions and acted on behalf of the individual plaintiffs.
At an early stage in the proceedings, there were over 600 actions in relation to the existence of pyrite in houses owned by individuals who had purchased them in twelve different developments.
In September 2010, the Ballymore Group was notified by the owner of a house in the Drumnigh Wood Estate of structural deterioration of his property which included inter alia doors sticking and floors cracking. An examination of the property was undertaken on foot of the complaint made by the homeowner. The result showed that there were raised levels of pyrite in the stone infill used in the construction of the house. A number of other homeowners subsequently raised similar issues in connection with their properties. There were multiple subrogated proceedings issued in the names of various homeowners against Ballymore, Cross Winds, Roadstone, Murphy Concrete and CRH between 2012 and 2014. These proceedings were initiated at the direction of the underwriters of insurance policies arranged by Ballymore for the benefit of the houses in the Drumnigh Wood Estate through the Premier Guarantee Scheme for Ireland.
The proceedings were commenced by plenary summons which was issued on the 5th June 2012. On the 11th September 2012, an appearance was entered for Ballymore and Cross Winds and on the 9th November 2012, an appearance was entered on behalf of Murphy Concrete. On the 5th April 2013, a statement of claim was delivered and on the 22nd July 2013, a notice for particulars was delivered on behalf of Ballymore and Cross Winds. On the 11th October 2013, an amended statement of claim was delivered and on the 15th October 2013, replies to notice for particulars of Ballymore and Cross Winds were delivered. On the 13th December 2013, a motion was issued on behalf of the plaintiff seeking case management and other reliefs. On the 8th January 2014, a notice for particulars arising from the amended statement of claim was delivered on behalf of Ballymore and Cross Winds. On the 18th March 2014, a motion seeking to compel the delivery of replies was issued on behalf of Ballymore and Cross Winds and on the 1st October 2014, a notice of discontinuance of the action against Ballymore and Cross Winds was served. At that time, Ballymore and Cross Winds were no longer involved in the proceedings.
However, on the 20th April 2016, a motion was issued on behalf of Murphy Concrete in the proceedings herein whereby Murphy Concrete sought an order granting liberty to issue and serve a third party notice on Ballymore and Cross Winds in these proceedings and thirteen related proceedings. On the 30th May 2016, Moriarty J. made an order granting liberty to Murphy Concrete to issue and serve third party notices on Ballymore and on Cross Winds in all of the fourteen sets of proceedings.
On the 23rd June 2017, this Judge was appointed to case manage these proceedings. The court made various directions in connection with the delivery of pleadings in a number of lead cases.
On or about the 16th March 2018, Murphy Concrete delivered a third party statement of claim to the third parties. On 17th July 2018, Ballymore and Cross Winds were granted liberty to issue and serve fourth party proceedings against Roadstone and CRH.
The following are the relevant dates in relation to the Subrogated proceedings and the third party proceedings.
(1) 21st June 2016, third party notice was served by Murphy Concrete on Ballymore;
(2) 1st July 2016, appearance entered by Byrne Wallace on behalf of Ballymore in the third party action;
(3) 16th March 2018, Murphy Concrete delivered third party statement of claim against Ballymore;
(4) 17th July 2018, an order granting liberty to Ballymore to issue and serve fourth party notices on Roadstone and CRH;
(5) 11th October 2018, Ballymore delivered notice for particulars to Murphy Concrete in the third party action;
(6) 20th November 2018, there were replies of Murphy Concrete to notice for particulars of Ballymore in third party action;
(7) 4th February 2019, Ballymore issued deliverance of defence of Ballymore to the third party statement of claim in the third party action;
(8) 11th February 2019, Ballymore delivered notice for further and better particulars to Murphy Concrete in the third party action;
(9) 1st April 2019, the replies of Murphy Concrete to Ballymore's notice for further and better particulars in the third party action;
(10) 3rd April 2019, there was a reply of Murphy Concrete to the defence of Ballymore in the third party action;
(11) 16th December 2019, an order was made by this Court striking out the proceedings of the plaintiff against Murphy Concrete;
(12) 20th January 2020, an order was made striking out the proceedings of the plaintiff against Roadstone and CRH.
When these proceedings were settled, the only matters outstanding out of all of the litigation were the third party actions against Ballymore and Cross Winds and the fourth party action between Ballymore and Cross Winds against Roadstone and CRH Property Management Company. The relevant estate is Drumnigh Wood Estate.
There are two further sets of proceedings which are being case managed by Murphy J. in this Court: -
(a) The Homeowner Proceedings (since late 2015): 41 sets of High Court proceedings have issued and been served by other homeowners of properties in the Drumnigh Estate on Ballymore and/or Cross Winds. Six of the homeowner proceedings have been discontinued. In the homeowner proceedings, the homeowners are claiming damages and ancillary relief in respect of alleged negligence and/or breach of contract on the part of Ballymore and/or Cross Winds in the construction of the properties and/or the materials used.
(b) The Stone Suppliers’ proceedings. In December 2015 plenary proceedings entitled “ Ballymore Contracting Ltd., Ballymore Residential Ltd. and Cross Winds Cottage Ltd. v. Roadstone Ltd., CRH Public Ltd. Company, Murphy Concrete Manufacturing Ltd. and William Miley Ltd.” were issued.
The Stone Supplier's proceedings seek to establish the principle that Ballymore is entitled to contribution, amounting to a full indemnity from the suppliers of stone to the Drumnigh Wood development – namely Roadstone, Murphy and William Miley in respect of any damages due to homeowners.
The court will mentions those sets of proceedings as they arise in the opposition by Murphy Concrete to the notice of motions in these cases.
On the 21st August 2020, Ballymore Residential Ltd. and Cross Winds Cottage Ltd. being third parties to the proceedings, applied by way of notice of motion for: -
(i) An order pursuant to O. 19, r. 7 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Court compelling Murphy Concrete (Manufacturing) Ltd. to provide full and proper particulars in response to the requests at paras. 1(a), 1(b), 2(d), 3(a), 3(b), 3(c), 4(a), 5(a), 5(b), 5(c), 6(a), 6(b), 7(a) and 7(b) of the notice for further and better particulars dated the 7th April 2020.
(ii) An order pursuant to O. 19, r. 7 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Court directing that in default of the said particulars being provided by such date as the court may direct the pleas in the third party's statement of claim shall be struck out as and from the said date and the costs of and incidental to the proceedings should be awarded to the third parties.
(iii) Such further or other consequential and directions as this honourable Court shall deem fit and proper.
The application was grounded on the affidavit of Helen Gibbons, solicitor, of the firm Byrne Wallace Solicitors who were the solicitors on record for Ballymore Residential...
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