The High Court has ruled that two homeowners may pursue losses set out in updated particulars in their case over a house beside the River Shannon that flooded in 2009. Mr Justice Micheál O’Higgins’s ruling concerned whether those losses were already covered by the pleadings, not whether the claims would succeed at trial.
Rebeka Kahn and Kieran Tarbett bought a newly built house at No. 28 Tarmon Harbour, Tarmonbarry, Co. Roscommon. They allege its finished floor level was lower than the level in the planning permission and that it was consequently unsafe from flooding. The property flooded on 22 November 2009.
The proceedings name the builder, Crosmac Limited; the architectural firm Michael McNamara Architectural Partnership; engineering firm Clifton Scannell Emerson Associates Limited; and Kilroe Developments Limited, which is in voluntary liquidation. The plaintiffs allege reliance on certificates concerning compliance with building regulations and planning permission. The defendants dispute that the updated loss claims were covered by the existing case.
In August 2023, the plaintiffs set out losses including a €40,000 deposit, a mortgage balance of €301,557.61 as of 28 March 2023, mortgage payments of €43,375.39, and an €8,513.90 judgment for management company fees. They also said a receiver sold the property in 2022 for €215,000 and claimed they had expected rental income of between €64,000 and €158,500. Those figures and claims are particulars advanced by the plaintiffs, not findings made in this ruling.
The second and third defendants argued that the updated particulars introduced a new “no transaction” case and came too late, causing prejudice. The second defendant also disputed a causal link between the flood and the mortgage losses, pointing to information that the plaintiffs had stopped mortgage payments in May 2009, before the November flood.
Justice O’Higgins held that the existing statement of claim, read alongside the replies to particulars, gave the defendants fair notice that the plaintiffs said they relied on the certificates and would not have proceeded with the purchase without the matters complained of. He found that the other disputed items concerned how losses were calculated and could be addressed through further particulars and, if necessary, discovery.
The court therefore ordered that the plaintiffs may maintain their claim for the losses in the August 2023 particulars. The judge did not assess the strength of those claims or decide whether the defendants were liable. He said those matters are for the trial judge, and left any further case management or trial-readiness issues to the judge in charge of the non-jury list.
The judge also indicated that, if necessary, he would have favoured allowing amendments to the pleadings. But because he found the existing pleadings sufficient for this motion, he did not need to decide the amendment application.