The Court of Appeal has dismissed an appeal by Roadstone Limited and three other defendants seeking to strike out Ballymore Residential Limited and Crosswinds Cottage Limited’s indemnity proceedings. The court affirmed the High Court order, leaving those proceedings to continue. It did not finally determine the disputed interpretation of section 27(1)(b) of the Civil Liability Act 1961.
The appeal concerned how claims for indemnity and contribution arising from homeowner cases should be managed. Ballymore brought separate proceedings against Roadstone Limited, CRH Public Limited Company, Murphy Concrete (Manufacturing) Limited and William Miley Limited. Roadstone argued that Ballymore had to pursue its claims through third-party proceedings in the homeowner cases, rather than in the separate action.
The dispute arose in litigation concerning alleged pyritic heave in houses in the Drimnigh Estate. The judgment records 32 surviving homeowner actions, with third-party notices served in three of them. Ballymore said it served those notices to protect its position, not to pursue parallel claims. The High Court had directed that the indemnity and contribution issues be determined in the separate proceedings, considering a house-by-house process in the homeowner cases wasteful of resources.
Writing in agreement with Faherty J, Mr Justice Maurice Collins said Roadstone had actively participated in the indemnity proceedings for nearly two years before applying to have them struck out. The court held that Roadstone was precluded by its conduct from bringing the application, without needing to settle whether the basis was estoppel, acquiescence or waiver.
The court also rejected the strike-out arguments on their merits. It said Order 19, Rule 28 did not apply because Roadstone did not claim that the amended pleading was frivolous or vexatious on its face. The court found Roadstone had not shown that the proceedings, or even the statutory contribution claim, were bound to fail. It also considered that removing the contribution claim would likely require it to be pleaded afresh and increase delay and costs.
The judges did not give a definitive ruling on the full scope of section 27(1)(b), or conclusively decide whether that provision bars contribution claims in the circumstances. They said those issues were not suitable for resolution in this strike-out application. The judgment noted that section 27 allows a contribution claim to be brought by separate action, while giving the court discretion to refuse contribution; the High Court had decided the claims should proceed in the separate action, and Roadstone had not established a basis to overturn that case-management decision.
The court also agreed that Ballymore’s cross-appeal was effectively moot after Roadstone’s appeal failed. The appeal was dismissed and the High Court order affirmed. The judgment states a provisional view on appeal costs but does not specify a final costs order in the supplied text.