The High Court set aside third-party notices served by Liffey Developments (Dublin) Ltd. on Tracey Enterprises (Dundrum) Ltd. and Keegan Quarries Ltd. in two Ongar pyrite-related cases, finding that Liffey had not shown the notices were served as soon as reasonably possible.
Mr Justice Robert Eagar delivered the judgment on 29 July 2019. The motions concerned Rory Power’s 2012 proceedings and Margaret Rooney’s 2015 proceedings. Both plaintiffs allege damage to their homes from aggregate infill used in construction that contained pyrite. Those allegations were not decided in these motions.
Liffey sought contribution or indemnity from the suppliers, alleging that they supplied material used in the development and that their conduct caused or contributed to the claimed damage. Tracey Enterprises and Keegan applied to set aside the notices under Order 16, rule 8(3) of the Rules of the Superior Courts, arguing that Liffey delayed too long.
The court said the burden rested on Liffey to explain the delay with evidence and assessed whether, in the circumstances, the notices had been served as soon as reasonably possible. It noted that Liffey had written to Tracey Enterprises in November 2011, putting it on notice of a potential claim and seeking an immediate indemnity. In July 2014, the plaintiffs’ solicitors confirmed that they did not intend to join the suppliers as co-defendants, while noting that Liffey could seek to join them as third parties.
In the Power case, the court also considered a January 2015 order staying further steps pending a European court reference, which expressly allowed joinder of parties. Liffey did not seek leave to join the suppliers until July 2018 and issued the notices the following month. The judge was not satisfied that the European proceedings had a direct bearing on the claims against the suppliers, or that the issues required the delay. He described the delay as a gross excess of time.
The court granted the applications to set aside both third-party notices in the Power proceedings. In Rooney, it found that Liffey had also failed to establish timely service and set aside its notice against Tracey Enterprises. The court struck out the third-party proceedings against Keegan in Rooney, noting they had become compromised. The judgment did not determine whether the suppliers were liable for the alleged property damage.