The High Court awarded James Elliott Construction Limited €2,659,114.05 in damages over damage to the Ballymun Central Youth Facility, and ruled that the company was entitled to its full costs. The court then granted Irish Asphalt Limited a conditional stay on the damages and costs orders pending an appeal.
In a judgment delivered on 14 July 2011, Mr Justice Charleton said the parties’ quantity surveyors had agreed the measure of the rehabilitation costs, so a planned four-day damages hearing was not needed. The €2.66m figure included €359,114.05 relating to a payment to Ballymun Regeneration Limited, the employer under the building contract.
The damages decision followed an earlier ruling on liability, pronounced on 25 May 2011. The court had found that pyrite heave caused the building’s condition and that Irish Asphalt breached its contract by supplying stone infill that expanded. The plaintiff had carried out rehabilitation work in 2008 and 2009. The judge noted that it had also incurred substantial expert and litigation expenses; the final amount of costs remained subject to agreement or assessment by the Taxing Master.
Irish Asphalt argued that the liability judgment contained serious errors and sought a stay while appealing. The judge reviewed the appeal grounds raised in oral argument, including issues about sulphur standards, analysis and testing of the stone, expert evidence, statutory terms on merchantability and fitness for purpose, and an exclusion clause. He concluded that only the contract issues showed a reasonable prospect of a contrary argument succeeding, a threshold he said required more than a bare possibility but less than a probability.
On costs, the judge applied principles for complex litigation that allow costs to reflect the outcome of separate issues. He said the plaintiff had lost on one narrow issue concerning alleged sulphuric-acid damage to concrete foundations, but that the issue had occupied less than a day and had not materially increased the overall costs. He therefore awarded the plaintiff the entirety of its costs.
The stay was conditional. Irish Asphalt was ordered to pay €1m in damages on account and contribute €500,000 towards costs by close of business on 28 October 2011. The stay on the remaining damages and costs orders was granted on the defendant’s undertaking to raise the case’s public interest before the Supreme Court and seek the earliest possible expedited appeal in its commercial list.