The High Court has refused discovery applications by James McMahon Limited and found that Cork Builders Providers Limited and Timber Marketing Services Limited, trading as Wood Concepts, are entitled to discovery in the third party claims arising from alleged plywood defects at a house in Glanmire, County Cork.
In a ruling delivered on 26 March 2021, Mr Justice Allen considered five contested discovery applications. The underlying action was brought by Michael O’Doherty (Fermoy) Limited, a builder, against James McMahon Limited, a builders provider. The house had been built for Ken and Shirley O’Neill in 2007. The plaintiff alleged that plywood used in its construction was defective and had been supplied by James McMahon. The defendant disputed that account, including whether it was the sole supplier and whether the defects arose from the plywood rather than design, construction or ventilation.
The plaintiff and defendant settled their action in November 2014. The defendant later sought to recover the money it had paid from the third parties. The ruling addressed discovery in those third party claims; it did not determine who supplied the relevant plywood, what caused the defects, or whether any party was liable.
James McMahon sought three broad categories of documents from each third party, including records of material supply, sourcing and certification, and testing or conformity records covering a wider period. The judge refused those requests. He found that the defendant had not shown the requested documents were necessary for fair disposal of the claims. He said the defendant was best placed to have records of what it ordered and received, and found that the sourcing and general conformity paperwork sought was not shown to be relevant or necessary to deciding the contractual dispute.
The first and third named third parties sought seven categories of documents from James McMahon. The judge found each category relevant and necessary and ordered discovery. The categories included records of plywood supplied to the plaintiff for the development, documents about the alleged defects and their cause, the plaintiff’s claimed loss and settlement, workmanship and roof design, and related correspondence.
The judge said the third parties could examine the claim that James McMahon had incurred liability to the plaintiff, including the amount and basis of the settlement. He noted that the remedial works bill of quantities was €159,845 including VAT, while the later settlement payment was about €27,000 higher than that figure.
The court directed that the motions be listed for mention on the first day of the next term. That hearing was to allow James McMahon to identify the person who would make its discovery, address the time allowed for discovery, and deal with costs.