The Inishowen company at the centre of the defective concrete crisis has been ordered to pay costs at the High Court for its prolonged delay in complying with the discovery process.
Cassidy Bros Ltd had been directed to turn over all relevant documents to the plaintiffs in the ‘class action’ case by May of last year but has only now agreed to begin to do so – ten months late.
It is understood that the discovery order relates to hundreds of thousands of documents stretching back two decades.
The Buncrana company has missed umpteen deadlines in the case, which Coleman Legal is taking on behalf of Defective Blocks Ireland, representing approximately 2,000 affected homeowners.
A High Court Commercial sitting in Dublin on March 3 heard how Cassidys had been “in breach of their obligations” over the past ten months and how the plaintiffs’ legal representatives had had to go to court “on 16 or 17 occasions” before ultimately bringing a motion to strike out the defence in January.
“We believe that if we hadn’t done what we did, we still wouldn’t have the discovery today,” said Mr John Gordon SC, instructed by plaintiffs Coleman Legal.
Mr Gordon brought a motion for costs against Cassidys for the multiple discovery hold-ups.
“I believe that costs should follow in the ordinary way and I believe the costs should be in relation to the issues surrounding discovery.”
Earlier during Monday’s court hearing there had been some dispute over the potential use of an electronic monitoring system and a ‘Virtual Data Room’ to track the movement of the discovery documents and who they might be shared with.
However, after a recess, both sides came to agreement on the matter.
Mr Gordon said he was “very pleased” that progress was finally being made in the long-running case.
“We can hopefully move on with the litigation now,” he said.
Solicitor Eamonn Dillon, representing Cassidy Brothers Concrete Products Ltd, “formally resisted” the motion for costs against his clients, citing “unique circumstances”.
Mr Dillon told Mr Justice Mark Sanfey that he had underestimated the “immense work” involved in the discovery process.
“If the fault lies anywhere, Judge, it lies with me and my counsel. When we agreed the 18 weeks at the time, we didn’t have a full appreciation of the sheer volume of documentation that was required to be reviewed from 2002 to 2020.”
“Judge, I personally spent something like eleven weeks, 12 to 14-hour days, in Donegal just literally with a team reviewing paperwork. The documentation was immense. The scale of work required was immense.”
“I appreciate we’re tardy. We have complied and, Judge, fulsomely complied. I’d say the documents that we reviewed ran into well over a million pages.”
Mr Justice Sanfey said he appreciated that Mr Dillon had to “deal with a very, very difficult situation” which was exacerbated by his physical distance from his clients. The defence solicitor is based with Edmond J Dillon
Solicitors in Listowel, Co Kerry, a distance of 270 miles from Buncrana.
However, the High Court judge pointed out how the defendants could have easily applied for more time to complete discovery but did not do so at any stage in proceedings.
“It can sometimes happen that a far greater, far longer period is required for discovery than was originally envisaged and I think what parties need to do then is bring that matter back before the Court and say ‘We’ve underestimated the amount of time, in fact it’s much bigger than we thought and we need the order amended.’ But that wasn’t done in this case,” Mr Justice Sanfey said.
“The matter was repeatedly brought back before the Court and I think Mr Gordon is right when he says that if this application [to strike out the defence] hadn’t been brought and pursued by the plaintiffs, that it’s difficult to see that discovery would ever have been made in this case.”
Mr Justice Sanfey awarded costs against Cassidys in the matter, but with a ‘stay’ on his order.
“I’ll award the costs to the plaintiff, but I do think it’s appropriate in this case to put a stay on the costs order until the termination of the proceedings.”
Representing the homeowners, Mr Gordon expressed some concern about the ‘stay’ on the costs order.
“It would be a very unfortunate situation if it turned out that because there was a stay on the payment of the costs, that this company went into liquidation and we couldn’t recover them. It seems at the moment the company does have funds, because it has the funds to complete the discovery, etc, and I don’t believe that we should be put at a potential disadvantage.”
In response, Mr Dillon said two of the Cassidy companies are not trading whilst a third is “just ticking over”. He said the Buncrana firm has “very limited” resources and has been stretched to the limit by the court action.
“The resources, Judge, that went into discovery were the directors’, their wives’, their husbands’, their brothers’, their sisters’, some family friends’; some of my colleagues assisted in the matter. Our resources are very limited. There is a small amount of money left in the company. Judge, I’d ask you to leave it at a stay.”
Justice Sanfey said he would leave the stay on costs in place as the “execution of a costs order now might well capsize the companies in any event.”
“I’m not sure there is any utility to permitting execution of a costs order now and I’m minded to leave the stay in place until the termination,” he ruled.
Mr Gordon asked whether the plaintiffs might now register a judgment with a stay “so at least we’re in line” to recover costs.
Justice Sanfey agreed that they could that.
“What I’m ordering is a stay on execution pending the termination of the proceedings. But I don’t think that should prevent you getting a judgment.”
The case was adjourned until Monday, March 24. Co-defendants are Donegal County Council and the National Standards Authority.