A High Court judge has ruled that a quantity surveyor’s valuation report did not bind solicitor James O’Mahony and builder Patrick O’Connor in their dispute over building work at Garryhankard House, County Cork.
The ruling concerned a preliminary issue in proceedings over a 1999 contract for works at Mr O’Mahony’s residence. The parties had appointed quantity surveyor Patrick Devlin to value the work after they could not agree on the balance due. The judgment, delivered by Mr Justice Clarke on 22 July 2005, addresses whether Devlin’s report could bind the parties; it does not determine their underlying entitlements under the building contract.
The judge found that the parties originally intended a complete process covering the value of the work, disputes about who carried out particular work, and allegations of defective work. Devlin’s January 2002 letters set out a valuation process, including measurement, consultation with the parties and recommendations on the final account. The judge found the letters did not clearly remove the broader issues from the original agreement.
Devlin valued the work he found at the house but did not decide disputed questions about defects, remedial work or who had carried out particular items. After issuing an interim report in May 2002, he sought consultation with the parties. The judge found that O’Mahony and his quantity surveyor failed to engage with those attempts, while finding that O’Connor was not trying to avoid a meeting.
In November 2002, Devlin wrote that the report should be regarded as final. The judge found that, despite O’Mahony’s failure to cooperate, Devlin had not first given the parties notice that the report would become final if they did not comply with consultation requirements by a specified deadline.
The court concluded that the valuation could not be separated from the other parts of the agreed process to make the work completed by Devlin binding on its own. It also held that the report could not validly be treated as final without the required notice. For those two reasons, the report was not binding on any of the matters it contained.
The judge left open what evidential weight, if any, the report might carry when the substantive issues in the building-contract dispute are heard. The ruling did not decide the claims over payment, defects or remedial costs.