The High Court has allowed a motion by Lowry Piling Limited to strike out separate proceedings brought by Andrews Construction Limited, finding that the developer unreasonably failed to join the piling contractor in earlier claims brought by homeowners.
The dispute concerned structural problems at two houses in Petitswood Manor, a development in Mullingar, County Westmeath. Lowry Piling carried out piling works there in August 2000. Cracking later appeared in the rear walls of houses numbered 119 and 120.
A June 2003 report by Andrews Construction’s consulting engineers, DBFL, said the most likely cause was failure or partial failure of a pile beneath a wall junction. It recommended remedial underpinning piles and suggested asking Lowry Piling to propose remedial work. Lowry Piling disputed liability. Its insurers later said the evidence did not establish negligence by the contractor and pointed to other possible causes.
The homeowners brought separate proceedings against Andrews Construction in 2003 and 2004. Andrews settled those claims in December 2004, agreeing to provide alternative houses and pay damages and legal expenses. The judgment records the total settlement as €448,792.68. Lowry Piling did not participate in the homeowners’ proceedings. Andrews issued its separate claim for an indemnity or contribution in September 2006.
Lowry Piling sought to have that claim struck out, arguing that Andrews had delayed and should have served a third-party notice in the homeowners’ cases. Andrews submitted that the cause of the damage had not been fully established before settlement and that Lowry Piling had not been prejudiced.
The court considered section 27(1)(b) of the Civil Liability Act 1961, which requires a third-party notice to be served as soon as reasonably possible and gives the court discretion to refuse a later contribution claim. The judge found Andrews’ own June 2003 report showed it knew there was a serious issue with the piling and that Lowry Piling was likely to be directly involved. No good or sufficient reason had been given for not joining the contractor, the judge said.
The judge also found that Lowry Piling had been deprived of an opportunity to participate in the defence and settlement of the homeowners’ claims. Having reached that conclusion, the court said it was unnecessary to determine prejudice as a separate issue, though it noted the delay itself had caused prejudice. The motion was allowed, and the court declined to permit Andrews to proceed with its separate claim. The ruling concerned that procedural claim; it did not determine responsibility for the defects in the houses.