Legal battle between Government and builders over school to be landmark case

A high stakes legal battle between Minister for Education Norma Foley and a building firm over liability for repairs to a Co Dublin school is due to open on Tuesday before the Commercial Court.

The action concerning Ardgillan Community College in Balbriggan, which was constructed by Co Tyrone-based Western Building Systems Ltd (WBS), has potential implications concerning liability for repair works to more than 40 other schools built by the same firm.

The Ardgillan school was built in two phases in 2009 and 2015. When alleged defects were discovered in 2018, the older building was closed and pupils were relocated or told to stay at home while repair works were carried out.

The total costs of building Ardgillan and the 40 other schools between 2003 and 2018 is estimated at some €160 million but sources believe the bill for the repair works could well exceed that.

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Ms Foley has sued WBS alleging negligence in the building of the Ardgillan school. Listed to open on Tuesday, the case is the first of 34 similar actions against WBS over the schools.

Among a detailed series of claims, the Minister alleges Ardgillan Community College did not comply with the relevant fire certificate and/or building regulations, and with the department’s build requirements. A fire safety audit in 2016 identified a number of issues, it is claimed.

Other claims include that, during remedial works in 2018, serious structural issues, including a lack of wall ties, were identified in the school building.

While it is accepted by WBS that there are some defects in the school, there is a dispute over the extent of and liability for those.

There is also a dispute whether the firm is liable for remediation works carried out to current standards when the school was built, for €3.52 million, in line with the standards then applicable.

The Minister accepts, if the firm is found liable, it would be entitled to a discount concerning remediation works being carried out to modern standards.

Contributory negligence

WBS denies negligence and also pleads the losses claimed by the Minister were caused in whole or in part by contributory negligence on the part of the Minister, her servants or agents in failing, among other things, to ensure the works were properly reviewed and/or supervised during the detailed design and construction phase.

Other pleas include that the Department of Education retained its own expert advisers throughout the design and construction process and had a general supervisory role with regard to the carrying out of the works.

It is pleaded the school was one of many built to a modular design on foot of a “rapid build” process initiated by the department from 2007 onwards.

WBS claims the procurement and construction process was “fundamentally flawed” by the model chosen by the department. It pleads the “unduly accelerated” programme for the works and the department’s desire to minimise costs was such the department is solely responsible for any loss resulting from the defects which have been the source of complaints.

Several third parties, including architects, engineers, consultants and construction firms, were previously joined to the case by WBS.

The third parties still involved are Oppermann Associates Ltd and Stephen Oppermann; Teague and Sally Ltd; and Martin and Dermott Brunton, trading as Classic Timber Frames.

During a case management hearing last week, Mr Justice Brian O’Moore heard there were 77 witnesses in the case, listed for a 14-week hearing.