The High Court has refused an application by Murphy Concrete (Manufacturing) Limited for security for costs in a dispute over stone allegedly containing pyrite, finding that the company had not demonstrated a prima facie defence on the evidence presented at this stage.
Marchbury Properties Limited claims the supplier negligently or in breach of contract supplied stone, including material described as “Clause 804”, which allegedly contained pyrite and was used in developments at New Haven, Balbriggan, County Dublin. The company alleges that some houses were affected by pyrite in construction materials and seeks an indemnity and damages. Those claims remain allegations; the court was dealing only with the security-for-costs application.
Marchbury admitted it would be unable to pay the defendant’s costs if the defendant successfully defended the proceedings. The remaining issue was whether Murphy Concrete had shown a prima facie defence, as required for the application to succeed.
The supplier denied liability in affidavits and raised several grounds, including that it made no representations or warranties, exercised reasonable care and skill, and that the claim was misconceived, statute-barred in whole or in part, or failed to identify the loss claimed. The court did not determine the merits of those defences. It applied the test that a defendant must objectively demonstrate admissible evidence and relevant arguable legal submissions which, if accepted at trial, would provide a defence. The court said it was not required at this interlocutory stage to assess whether the defence was likely to succeed at the full hearing.
The judge found the affidavit evidence from Marchbury’s Thomas Durkan more compelling than the two affidavits from Seamus Murphy for the supplier. Marchbury relied on tests relating to No. 51, Newhaven Bay, while the supplier had not inspected any of the properties. No remedial works had been carried out. The judge concluded that the supplier’s assertions were not objectively supported by evidence establishing a prima facie defence, and said an inspection involving relevant experts would be needed to give credence to those assertions, if they were correct.
The court was therefore not satisfied that a prima facie defence had been set out. It refused the security-for-costs application. The judgment did not decide whether the stone contained pyrite or whether either party was liable in the underlying proceedings.