School building that had serious structural and fire safety defects built in just 20 weeks when usual time was 60, court hears

By Tim Healy for

A school building which suffered from serious structural and fire safety defects was built in just 20 weeks when the usual time to do so is 60 weeks, the High Court has heard.

Co Tyrone builders, Western Building Systems Ltd, achieved the “record” 20 week construction time through a combination of hard work and driving subcontractors to ensure they completed Ardgillan Community College in Balbriggan, Co Dublin, in time for the opening-of-term deadline in 2009 as required by the Education Minister, the company’s counsel John Trainor SC told the court.

The Minister for Education and Skills is suing Western over defects in Ardgillan some of which have been agreed between experts and others which are in dispute.

Western, which was set up in 1991 in Coaisland by Martin McCloskey (68), a joiner by trade who got into the prefabricated timber building business, denies the claims.

Having to deliver such a project at “breakneck speed” created the risk of shoddy works by contractors and subcontractors and it was in those circumstances the minister’s architects and structural engineers overseeing the project had a clear duty to monitor the work which Western understood would be the case, Mr Trainor said.

Counsel said as a result of that failure to monitor and inspect the work in process by design team members pre-qualified by the minister, KSM Architects, Oppermann Associates engineers and Teague and Sally Architects, the minister is morally responsible for the cost of remediation works to the school. Certification of completion was provided to the minister to state the work was according to standard, he said.

The minister says the remediation cost is €11.5m while Western says the works could have cost as little as €1.2m if they had been carried out expeditiously. It says the minister’s claim is vastly exaggerated.

Western also argues 50pc contributory negligence because the minister knew site inspections were going to be a guarantee of quality.

A number of third party subcontractors and other companies brought into the case on the basis of seeking a contribution or indemnity against them are no longer in the case and those matters have been settled, the court heard.

David McGrath SC, opening the case for the minister, said Western built some 42 schools under a build and design scheme introduced in 2007 and in circumstances where there was an urgent need for school places in the era of the Celtic Tiger and expanding populations which could not be accommodated in existing schools.

When the external wall of a school in Edinburgh, built under the rapid build scheme, collapsed because of inadequate ties to an internal wall, it led to inspections in Irish schools where a number of defects, including fire safety defects, were discovered.

Ardgillen, alone among the schools, had to be closed and students relocated and others accommodated in temporary accommodation.

While remedial works on the other schools, which are the subject of separate proceedings, were carried out with students in situ, a significant number of works still need to be carried out at Ardgillan, Mr McGrath said.

Counsel said a baffling feature of Western’s defence was it denied there was an express implied term that the schools would be structurally safe.

The idea that a company would take on the job of building 42 schools and not think it was responsible for making them structurally safe was “staggering”, counsel said.

Mr Trainor, for Western, said the terms of the contract did not mention the words structurally safe but obviously that was an implied term within the specifications for the schools that they would comply with all requirements.

It was wrong for the minister to plead this in a general, vague and nonspecific way it has been pleaded, he said.

Earlier Mr Trainor also said that if one was to take what Mr McGrath said one could be forgiven for thinking Western was not just “another shoddy cowboy builder”, but one that was consciously or recklessly a company which built with complete indifference to proper standards.

Western’s position is that it acted “exactly as it was expected” under the design and build contract put in place by the minister.

While it had legal liability for the defects, Western says the moral responsibility and liability lay with the minister and particularly with others, namely the minister’s own design team members and advisers, he said.

The case resumes on Wednesday before Mr Justice Brian O’Moore.

Judge fixes hearing for preliminary issue in personal injuries guidelines challenge

Issue raised is whether a judge who took part in guidelines vote should recuse themselves from lead case, court hears

By Aodhan O’Faolain for Irish Times

The High Court has fixed a date next month for the hearing of an important preliminary issue raised in the lead challenge against new guidelines for personal injury awards.

Mr Justice Charles Meenan said a fundamental issue raised is whether a judge who took part in last year’s vote by the Irish judiciary to adopt the guidelines should recuse themselves from hearing the lead case.

That action, brought on behalf of Bridget Delaney from Co Waterford, is one of several proceedings against the State, and the Personal Injuries Assessment Board (PIAB), the State body that makes personal injury awards, aimed at setting aside guidelines regarding awards for personal injuries claims.

In March 2021 the Judicial Council, the body made up of all the State’s judges, voted to adopt the new guidelines.

Both PIAB and the State oppose the challenges.

The State claims that the challenges are causing “real difficulties” regarding how personal injuries claims are dealt with by PIAB and the courts, and wants the proceedings heard as soon as possible,

Previously the judge said the action by Ms Delaney of Cruachan, Knockateemore, Dungarvan, Co Waterford should be the lead case.

In order to save on court time and legal costs, the judge said that some or all of the core issues raised should be determined in that action.

When the various cases were mentioned before the judge on Wednesday, he deemed that the preliminary issue on whether the lead challenge should be heard and determined by a judge who took part in the vote to adopt the new guidelines should be heard first.

Mrs Delaney represented by Feichin McDonagh SC, has brought several preliminary motions in her case, where she seeks to amend certain parts of her claim, discovery of certain material from the respondents, and seeks the recusal of any judge who voted on the guidelines from hearing the case.

The State, represented by Catherine Donnelly SC, said that her client will oppose the motion.

Counsel also raised the State’s concerns about the Delaney case being the lead action.

It would take some time before all the preliminary issues,as well as the full action itself are determined by the Court.

Counsel suggested that another of the challenges, which also raise many of the points raised in the Delaney action and is a much more advanced stage of readiness, take over as the lead action.

Lawyers involved in some of the other challenges submitted that their actions, which in several respects were different to the Delaney case, could be heard much sooner.

However Mr Justice Meenan said that the motion seeking the recusal of any judge who took part in the vote from hearing the case is a fundamental issue that needs to be determined first in time.

He fixed a hearing date for the recusal motion for two days starting on the 9th February.

Mr Justice Meenan adjourned all the other preliminary issues in Ms Delaney’s case and the other challenges to February 16th next.

In her judicial review proceedings against PIAB, the Judicial Council, Ireland and the Attorney General, Ms Delaney seeks orders quashing the assessment PIAB made in respect of her claim, and the Judicial Council’s decision to adopt the new guidelines.

She also seeks a range of declarations including that PIAB acted outside its powers, breached her rights to natural and constitutional justice, and that the Judicial Council acted outside of its powers in adopting the personal injuries guidelines.

She claims she fractured a bone in her right ankle, after she tripped and fell at a public footpath at Pinewood Estate Dungarvan Co Waterford on April 12th, 2019.

She required medical treatment and alleges she suffered her injuries due to the negligence of Waterford City and Council.

In June 2019 she submitted a claim to PIAB, seeking damages.

At the time she claims PIAB was required to have regard to the general guidelines as to the amounts that may be awarded or assessed in personal Injury claims, contained in the Book of Quantum, when assessing her application and making an award.

She claims that the appropriate awards for the injury she sustained ranged from between €18,000 and €34,000.

In May PIAB said in its assessment of her claim that she was entitled to €3,000 in general damages.

She rejects this assessment, says it is insufficient, and does not compensate her for the injuries she sustained.

She claims the assessment amounted to an error in law by PIAB and was in breach of fair procedures.

She also claims her assessment was delayed because PIAB was awaiting the coming into force of new Personal Injuries Guidelines and the assessment of her claim was wrongly made under the new guidelines.

She also claims that the requirement in the 2019 Judicial Council Act that members of the judiciary vote on the new guidelines is inconsistent with the independence of the judiciary and amount to an impermissible delegation to the administration of justice to the council.

She also claims that the adoption of the guidelines has violated Ms Delaney’s constitutional right to access to the courts.

The claims are denied.

Motorcyclist who hit crowd control barrier in place for community festival settles case

57-year-old fractured elbow when he came off bike on his way to work at Dublin airport

A motorcyclist who was injured when his bike hit a crowd-control barrier allegedly left on a roadway for a community festival has settled his High Court action.

Des Kearns (57), of Wooddale Road, Rush, Co Dublin, sued Fingal Co Council, event managers ALA Markets and Events Ltd, of Glasnevin, Dublin, and by order of the court, CFTB Rush Harbour Festival, the local organisers of the event.

The defendants denied negligence and claimed contributory negligence on the part of Mr Kearns for travelling too fast and failing to keep a proper lookout.

Following talks, the court was told on Thursday by Mr Kearns’s counsel, Declan Doyle SC, the case had been settled.

Counsel asked the court to make orders on consent for Mr Kearns’s costs against the Rush Harbour Festival defendant, to be adjudicated in default of agreement. The case could be struck out with no order against the council or ALA Markets and Events.

Ms Justice Mary Rose Gearty welcomed the settlement and passed on her best wishes to Mr Kearns

The court heard Mr Kearns, who had been a baggage handler at Dublin Airport at the time of the accident, fractured his elbow when he came off his bike after hitting the three-foot-high barrier at around 5am on July 31st, 2016, while on his way to work.

He claims the barrier had been left at an oblique angle at the mouth of Kilbush Lane in Rush town where the Harbour Festival was on for the bank holiday weekend.

He eventually had to give up his job as a baggage handler because it was physically too difficult, counsel said. He had not gone back on the motorbike as a result of the psychological effect and physical difficulty in using the clutch on the bike.

He denied, under cross-examination, he had failed to keep a proper lookout or was travelling at speed.