High Court allows Profi Welders' payment claim against R&R Mechanical Limited for personnel services rendered.

[2019] IEHC 36

THE HIGH COURT

2017 No. 203 S

Between:

PROFI WELDERS s.r.o.

Plaintiff

– and –

R&R MECHANICAL LIMITED

Defendants

JUDGMENT of Mr Justice Max Barrett delivered on 29th January, 2019.

1. Profi Welders supplies personnel for construction projects throughout Europe. R&R fabricates piping systems in Ireland. Profi

provided personnel to R&R to assist in the construction/installation of piping systems needed at a power plant (the ‘Project’). There is

no written contract between the parties governing the personnel supply arrangement. After ascertaining the availability of personnel,

R&R would simply request a named individual and confirm the hourly pay-rate due to Profi for same. Profi seeks to recover payments it

claims are owing in respect of personnel provided. By counterclaim, R&R claims that (1)(i) it was an express &/o implied term of the

contract with Profi, &/o (ii) Profi represented &/o warranted, &/o (iii) Profi owed R&R a duty of care, to ensure that personnel supplied

were competent to do the tasks demanded, and (2) Profi was in breach of contract and/or negligent by providing what R&R claims

were substandard, incompetent staff.

2. Over two days the court heard evidence from Mr M Pavlik and Ms Z Solopova (respectively a director and employee of Profi) and

Messrs P Cassidy and L Daciuk (both senior employees of R&R). Arising from their evidence and such other evidence as is before the

court, the following has been established:

(1) Profi undertook and sought to ensure that all personnel supplied were technically qualified for the work demanded of

them; it gave no warranty beyond that.

(2) it has not been established that Profi supplied staff who were not technically qualified for the work demanded of them.

(3) Profi did not undertake to complete the construction project in which R&R was engaged.

(4) R&R was solely responsible for the adoption of work systems and quality assurance and other procedures for the said

construction project.

(5) R&R was solely responsible for managing and supervising, and did manage and supervise, the Profi personnel in Ireland.

(6) it was R&R’s responsibility to carry out and manage such skills tests as were appropriate in the context of the

construction project undertaken.

(7) though there were some concerns raised with Profi by R&R about the performance of certain Profi personnel, (a) from

the commencement of the personnel supply arrangement in spring 2016 until the time when it became clear that R&R was

not going to pay the still-outstanding payments, the supply arrangement generally worked well, (b) although it was open

to it so to do, R&R never asked that any individuals supplied by Profi be replaced, (c) it is clear from the evidence of Ms

Solopova (who attended in Ireland for a time to see what could be done to resolve such issues as had arisen) that the

issues presenting as regards the quality of welding work done represented a small fraction of the welding work done and

were eminently capable of timely resolution.

(8) the termination of R&R’s contract with the main contractor is a matter to which Profi is in truth a stranger; however,

it appears from the documentation before the court that the termination was done not for cause but for convenience, i.e.

simply because it was desired that R&R remove itself from the construction site (perhaps because of an on-site

contretemps which involved the Gardaí being called after entry by non-R&R staff onto R&R’s on-site premises).

(9) Mr Pavlik’s efforts to assist R&R if and when he was contacted were but the to-be-expected efforts of a competent

and professional businessman engaged in the supply of personnel. His actions did not involve an assumption of any liability

by Profi for the doing/completion of the construction project in which R&R was engaged; nor do they in any way affect

any of the conclusions reached herein.

(10) it does not appear that Ms Solapova’s work was provided, as contended, on a complimentary basis; the repeated

efforts by Mr Pavlik to agree a discounted basis for Ms Solapova’s work suggests to the court that, on the balance of

probabilities, her work in Ireland was chargeable to R&R’s account.

(11) the claim made out by Profi is effectively undisputed; by contrast, R&R’s counterclaim is vague and unsubstantiated.

3. As a consequence of the above findings, the court concludes that Profi Welders has established the liability of R&R, as a matter of

contract law, for the sums claimed in the summons of 08.02.2017; by contrast, R&R has failed to bring any aspect of its counterclaim

home. The court will therefore grant the reliefs sought by Profi in its summons. All reliefs sought by R&R are respectfully refused.

4. The court notes that there was some late-discovery of documentation on both sides. Though this is to be regretted, discovery is

inherently subject to human error and not every failure to make discovery necessarily involves wrongdoing; nor does the court see

any wrongdoing to present here. The court notes that in reaching its conclusions it has done so by reference, inter alia, to all the

documentation placed before it, including the belatedly discovered documentation.