The High Court has rejected a specialist subcontractor’s claim that companies and individuals involved in the McDonagh Junction development in Kilkenny conspired to deprive it of about €1.6 million due for a glass roof.
Mero-Schmidlin (UK) PLC was subcontracted to provide a glazed roof over a courtyard in the major retail and residential development. The overall project cost about €115 million, while Mero’s subcontract was worth roughly €3 million plus VAT. It had received about €1.4 million and claimed a further €1.6 million plus VAT.
The dispute arose after glass installed in 2007 showed visible bands caused by differences in the dot pattern applied to reduce sunlight. The glass was rejected. Mero argued that later negotiations and payment arrangements showed a conspiracy among the developer, main contractor, project manager and individual employees to keep money owed to it.
Mr Justice Charleton considered the case at the close of Mero’s evidence. Because all defendants said they would call evidence if necessary, the question was whether Mero had produced enough evidence to establish a prima facie case of conspiracy.
The judge found it had not.
He held that the subcontract placed responsibility for the appearance and quality of the glass on Mero. The contractual specification required coatings and patterns to be uniform and prohibited noticeable differences between glazing units.
The court also rejected Mero’s interpretation of a June 2008 final-account meeting and subsequent correspondence. The documents instead showed continuing efforts to resolve the defective-glass issue and to determine an appropriate deduction or replacement cost. They did not show an agreement to divert or retain Mero’s money.
Charleton J. concluded that there was no conspiracy to interfere unlawfully with contractual arrangements or deprive Mero of money due to it.
Each defendant was awarded its costs against Mero, subject to a four-month stay. Mero was awarded the costs of an earlier unsuccessful security-for-costs motion brought by three defendants.