The High Court has set aside third-party proceedings brought by Markland Holdings Limited against structural engineers N. McElroy Associates Limited, trading as McElroy Associates Consulting Engineers, in a dispute over damage to a Dublin home during nearby construction.
Miss Justice Laffoy ruled on 10 August 2007 that Markland had not served its third-party notice “as soon as reasonably possible”, as required by law. The order removes McElroy from the contribution and indemnity proceedings in this case. The court did not decide whether Markland could bring a separate substantive action against McElroy, or whether a contribution order should be refused in any such action.
The underlying claim was brought by Denis Murnaghan, who sought damages for loss caused by damage to his residence at 5 Pembroke Place, Dublin 2, during construction at the adjoining site, 70 Leeson Close. Markland owned and developed that site; Cantier Construction Limited was its building contractor, and McElroy was retained as structural engineers.
The plaintiff alleged, among other things, that an agreed gap between the buildings had not been maintained and that negligence, breach of duty, trespass and nuisance caused damage. In a December 2004 judgment on the plaintiff’s claim, the court found that Markland had failed to observe good building practice when installing the foundations and had breached its duty of care to the adjoining owner. It also found that the agreement to maintain a gap had not been implemented. The plaintiff was awarded €238,909.90. That damages award was not appealed by Markland; a separate costs judgment was appealed.
In deciding McElroy’s application, the court said the lack of a separation joint at foundation level had been known from September 2003. Given the plaintiff’s claim and McElroy’s role in the structural work, Markland should then have investigated whether it had a potential contribution claim and whether to seek leave to join McElroy. The evidence indicated that the necessary professional judgment could reasonably have been made by the end of 2003.
The court rejected Markland’s explanations for waiting until after the plaintiff’s claim had been tried and for further delay while seeking particulars from Cantier. The trigger for acting, the judge said, was the plaintiff’s damages claim against the defendants, not the later pleading of claims between the defendants. Leaving those issues until after the main trial had contributed to multiple trials rather than avoiding them.
The ruling concerned the timing and validity of the third-party proceedings. Whether a later contribution claim should succeed, or whether the court should refuse contribution because of the delay, was left for another day.