The High Court has refused an application by Trench Control Limited to set aside third-party proceedings in a dispute concerning alleged damage to an apartment block during the Waterford Flood Relief Scheme.
Mr Justice Dignam delivered judgment on 6 September 2023. The application concerned a third-party notice issued by Niall Barry & Company Ltd, the third-named defendant. The court refused the relief sought; it did not decide the underlying allegations of property damage.
Riverview Administration Owners Management Company Ltd, which owns a block of 24 apartments known as De Bruin Court in Poleberry, alleges that works for the scheme caused subsidence, sewer and drain collapses, settlement and cracking. It claims the damage resulted from piling works and negligence. The judgment notes that Trench Control is alleged to have carried out the piling. The judge expressly said the background was not a finding on disputed facts in the substantive case.
The third-party argued that Niall Barry had not served the notice as soon as reasonably possible, because it knew from the July 2020 statement of claim that piling was alleged to have caused the damage and knew Trench Control had carried out that work. Niall Barry said it investigated the claim through loss adjusters and claims specialists, received a preliminary report dated 20 September 2020, and then instructed counsel to prepare the application. The motion seeking leave to issue and serve the notice was issued on 11 December 2020.
The judge found that the investigation had progressed sufficiently within about seven weeks of delivery of the statement of claim for the decision to join Trench Control to be made. He concluded that the time taken to investigate, obtain advice and issue the motion was not unreasonable. He also found no additional unreasonable delay in serving the notice: it was sent to the Central Office three days after the order granting leave was perfected, issued on 19 April 2021 and sent by registered DX on 23 April.
The court separately considered Trench Control’s delay in seeking to set the notice aside. The notice was served in April 2021, but Trench Control entered an appearance in May 2022 and brought its application in August 2022. The judge held that time ran from service, not from entry of appearance, and that Trench Control had provided no real explanation for the roughly 16-month delay. That failure alone was enough to refuse the application.
The ruling concerns only whether the third-party proceedings should be set aside. The substantive dispute over the alleged damage and responsibility for it remains unresolved in this judgment.