The High Court set aside third-party proceedings brought by consulting engineers against a timber-frame subcontractor in a dispute over damage to a social housing development in Ballymun. The court found that the engineers had not served the third-party notice as soon as reasonably possible, as required by the Civil Liability Act 1961.
Ms Justice Murphy delivered the judgment on 30 June 2015. The underlying case concerns allegations of professional negligence and contractual breach relating to the Emerald Project on Sillogue Road. Clúid Housing Association alleges that Brettstapel timber slabs used in Block A absorbed moisture and expanded, damaging the floor, frame, windows and external cladding. The source of the moisture, described in the judgment as atmospheric humidity and/or rain ingress, remains disputed in the underlying proceedings. Those allegations were not decided in this application.
Remco Limited, trading as Malone O’Regan Consulting Engineers, sought to join DTE Manufacturing Limited, trading as Dempsey Timber Engineering, as a third party. DTE had been subcontracted to design, manufacture and install the timber structure, and to install the Brettstapel slabs. Remco argued that it reasonably waited for replies to particulars, a site inspection and expert reports before seeking to join DTE. The reports were said to attribute at least part of the responsibility for moisture ingress to DTE, but their contents were claimed to be privileged.
DTE argued that Remco had known about the damage and its possible causes since 2010, and had sufficient detail from the statement of claim delivered in November 2012. The court agreed that Remco’s involvement in the project, its engineering expertise and the detailed allegations in that pleading gave it enough information to decide whether to join DTE. It found no evidence that replies to particulars or independent expert advice were necessary to that decision. The third-party notice was therefore not served as soon as reasonably possible.
The court also rejected Remco’s argument that DTE had waited too long to challenge the notice. DTE entered an appearance, requested the third-party statement of claim and, after receiving it on 8 August 2014, applied to set aside the proceedings six and a half weeks later. The judge held that requesting the pleading did not prevent DTE from challenging the notice, and that the time taken to consider the claim and make inquiries was reasonable.
The court set aside the third-party proceedings. It did not determine the merits of Clúid’s underlying claims, Remco’s counterclaim for unpaid fees, or the ultimate responsibility for the alleged damage.