The High Court has ordered Covestro B.V. to provide further discovery in proceedings over alleged defects in floor insulation used at the Elder Heath housing development in Tallaght. The ruling concerns disputes between defendants about discovery; it does not decide whether the insulation was defective or who is liable.
Kelland Homes Limited, the developer, claims that some ground-floor slabs sank after insulation panels shrank and voids formed beneath them. At the start of the proceedings, the issue had been identified in 58 homes. Kelland says remediation included replacing insulation and slabs, temporarily rehousing residents and compensating homeowners. It estimated those costs at about €2.2 million when proceedings began in November 2017. The defendants deny liability.
Ballytherm Limited, the insulation manufacturer, alleges that defects in a chemical supplied by Covestro, including a change from PIR3003 to PIR3009, caused the problem. Covestro disputes that account. The judgment records the parties’ allegations and the discovery applications, not findings on the underlying product claims.
Mr Justice Quinn rejected Covestro’s preliminary objection that Ballytherm’s request for supplemental discovery should be ruled out because it came after the initial discovery order and exchange. He said the court had to balance delay and proportionality against the need for relevant material to be available at trial.
On the application about compliance with the existing discovery order, the judge did not make a general order for further and better discovery or strike out Covestro’s defence. He directed Covestro’s managing director, Frank Schaefer, to swear a second affidavit addressing document preservation and retention, deleted emails and efforts to retrieve them, handwritten notes and other hard-copy records, a reported incident involving missing stabiliser, complaints including any involving Swisspor, and the data subjects searched. Ballytherm and the other defendants were to provide a list of search terms they said had been omitted; if the parties could not agree, the issue could return to court. The judge also directed that specified price redactions be reversed and that attachments to one identified document be disclosed or further explained.
On Ballytherm’s supplemental-discovery motion, the court ordered discovery in four areas: contractual records and technical assistance from when the proposed change to PIR3009 began; quality control of raw materials used in PIR3009; records of testing and information supplied for BBA approval; and Covestro’s sample-retention policy and records concerning retention or destruction of PIR3009 samples. The judge refused requests concerning representations about Covestro’s expertise and product suitability, Covestro’s knowledge or suspicion of defects, and documents about the cause and nature of the defects. He considered that some matters could be addressed through interrogatories or were sufficiently covered by the original discovery categories.
The judgment set directions for further discovery. It did not determine the product-liability claims or make findings on whether documents had been improperly destroyed. The source gives a judgment date of 31 January 2019; it also contains an inconsistent reference to the trial beginning in April 2018, so the trial date is not stated here.