The High Court found that James Elliott Construction Limited had not adequately answered several requests for particulars in its deceit claim concerning aggregate supplied by Irish Asphalt Limited from Bay Lane Quarry. The court did not strike out the proceedings or make a final order on the motions. It said it would hear submissions on the appropriate order and on whether the plaintiff should amend its claim to include an allegation about falsified test results.
The judgment, delivered by Ms Justice Costello on 14 July 2015, considered defendants’ motions arising from the plaintiff’s replies to particulars ordered in December 2014. The plaintiff seeks damages for deceit and an indemnity for potential losses connected with construction projects where the products were used. The defendants said the replies were inadequate and initially sought compliance with the existing orders, with time to assess any further replies.
For the first, second, third and fifth defendants, the court found inadequate replies on four matters: how the rock failed applicable standards; why the plaintiff said specified tests had failed; details of losses claimed to date; and which test results the individual defendants allegedly knew about. The court also held that the plaintiff had introduced a new allegation that test results used in other litigation were falsified. It said that allegation was serious and could be pursued if properly pleaded, but should not be introduced through a reply to particulars.
The fourth defendant, Irish Asphalt, challenged seven replies. The court found four inadequate: particulars of how the aggregate failed industry tests, details of tests it allegedly failed, the testing or quality control system said to be required during quarry operations, and results of independent customer testing. On the last issue, the plaintiff acknowledged that it did not have the test results and accepted that it had not replied at that stage.
The court accepted other replies as sufficient, including information about the standards said to define Clause 804 and the plaintiff’s reference to test evidence discussed in separate Menolly proceedings. It also accepted that, before discovery, the plaintiff could plead in the alternative that tests were either not carried out or their results were disregarded, with further particulars to follow after discovery.
The defendants agreed the plaintiff should have more time to respond to the inadequate particulars. The court therefore reserved the appropriate order for further submissions. It also invited submissions on whether the Statement of Claim needed amendment concerning the alleged falsification of test results. No ruling on liability, damages, or the truth of the underlying deceit allegations was made in this judgment.