Building supplier to seek mistrial over new evidence

A LEADING building materials company accused of causing defects in hundreds of north Dublin homes is to ask the Commercial Court to declare a mistrial after new evidence emerged in the case.

The Lagan Group, which is accused of supplying defective infill which caused the problems, says new documents raise questions about the building practices of the developer, Menolly Homes and other companies owned by developer Séamus Ross.

Brian OMoore SC, for the Menolly companies, yesterday told the court his clients apologised unreservedly for the production of almost 50,000 new documents so late in the trial. He expressed his genuine regret to the court, the defendants and the owners of the affected homes.

Mr Justice Paul Gilligan agreed to hear the application from Lagan’s lawyers for proceedings to be struck out and the declaration of a mistrial in October. He also adjourned the hearing of evidence in the long-running case until after this motion is heard.

The resulting delays are likely to add greatly to the legal costs in the case, as well as causing further delays for householders wishing to take their own legal action over the defects. Yesterday was the 55th day of the trial, which is taking place in Clonskeagh.

In the case, four companies controlled by Mr Ross say the problems in three north Dublin estates were caused by defective infill supplied by three companies in the Lagan group of companies. They claim cracking in houses was caused by the presence of pyrite in the infill supplied by a Lagan subsidiary.

Hugh O’Neill SC, for the Lagan Group, told the court that in his 35 years of legal practice, he had never seen documents produced in this manner, particularly with so many of real relevance. In the light of these extraordinary developments, it was entirely unrealistic and quite unfair for the case to proceed.

However, Mr O’Moore accused the defendants of using the discovery of fresh documents in an unscrupulous effort to subvert the case. The Lagan Group was engaged in an opportunistic attempt to use Menolly’s failure to produce documents to elongate or possibly abort the trial and to leave the case “fossilised” until the strike-out motion is heard, he claimed.

Mr O’Neill said the new material included documents which are extremely critical of Menolly’s building practice. He referred to snag lists which, he said, showed uneven floors, as well as hundreds of invoices for concrete deliveries showing that water was added to the concrete.

The defendants needed another two months to examine the documents properly, he said, adding that further evidence should not be taken in the interim.

Mr Justice Gilligan described the situation as entirely disappointing and said he was somewhat taken aback that the defendants needed two months to review the new documents. However, he eventually acceded to the request to defer the hearing of further technical evidence.

Mr O’Neill said the twists and turns of the case, which started in February, had been extraordinary. On June 25th, the defendants had been presented with 90 boxes of new material, amounting to 110,000 pages. Reviewing this documentation was a time-consuming exercise. The examination of a similar number of documents before the start of the trial took up to seven months, he pointed out.

Menolly’s lawyers have previously told the court the documents were not produced earlier because inadequate search terms were used when scanning the company’s databases, but Mr O’Neill said that it was extremely difficult to see how they had escaped attention.

His legal team had taken on six additional juniors who had worked on the case before to go through the material, but he wasn’t prepared to expose his client to significant risks by using people who had no prior knowledge of the case. He denied his clients were trying to subvert the trial.

Mr O’Moore accused the defendants of raising “phantom concerns” about the documents and queried why they needed so much time to examine them. His side had employed 25 junior counsel to prepare its initial discovery, he pointed out.

However, he said of the 48,965 new documents discovered, many belonged to new categories of discovery or were subject to legal privilege. That left 15,052 documents which required analysis and consideration by both sides.

Mr O’Moore admitted this was a “regrettably significant” number of documents and “in a different league” to the 400 documents he originally expected to come from Menolly. Clearly, there would be consequences from this matter, but this would be an issue for the court to decide.

Mr Justice Gilligan set the date for hearing the strike-out motion for October 6th.