The High Court has ruled that James Elliott Construction Limited may inspect Irish Asphalt Limited’s Bay Lane quarry and take six borehole cores and one bulk rock sample as part of its deceit case over aggregate supplied for construction projects. The court adjourned the motion, however, because the proposed inspection protocol was not detailed enough for a final order.
The company alleges that Irish Asphalt and other defendants sold aggregate from the quarry as Clause 804 and “3 inch down”, knowing or recklessly disregarding whether it met the ordinary characteristics of those products. It says material used in various developments was not either product and failed, causing fundamental damage. It seeks damages and an indemnity. Those allegations have not been determined in this motion.
The defendants agreed that an inspection and sampling were appropriate, but disputed what sampling should be done. The company sought six boreholes, each 102mm wide and up to 60 metres deep, with locations to be finalised after an initial inspection, as well as one bulk sample from the south-west quarry face. The defendants proposed 53 boreholes and opposed the bulk sample, arguing it would not be representative and that replicating the quarry’s production process was irrelevant to a deceit claim and impractical. They also raised planning concerns, saying the quarry had stopped production in February 2008 and was in a restoration phase.
Justice Costello said the court’s sampling power must give parties a fair opportunity to present their cases while protecting property owners’ interests. She rejected the objections to six boreholes, noting that the defendants had not opposed drilling on the basis of damage to the quarry. She also held that one bulk sample was necessary for the company to obtain information it wished to present. The court was not deciding whether the proposed samples would give a representative picture of the quarry or whether the production trial would ultimately be relevant at trial.
The judge rejected the planning objection, noting that permission for the quarry ran until June 2017 and that taking one bulk sample would not amount to reopening it. She said disputes over how information from the samples might be used at trial did not justify preventing the company from obtaining it at this stage.
The court was not yet able to make the final order. It required further details about the initial inspection, proposed sampling sites, site possession and the experts who would carry out or attend the work. Irish Asphalt was also to provide information about the production-phase protocol involving air traffic control at Dublin Airport and any other parties involved before blasting. The judge said satisfactory insurance and bonds covering the inspection and sampling costs would be needed. The motion was adjourned for further submissions on those matters.