Court dismisses plaintiff's claim that neighbour's construction caused dampness due to lack of DPM. Plaintiff failed to prove substandard building practice or causation.

Record No: 2021/ 05308

Neutral Citation: [2024] IECC 21

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF

RITA CONSIDINE

Plaintiff

and

MICHAEL FLANAGAN, ANNE FLANAGAN AND SINEAD FLANAGAN

Defendants

Judgment of Her Honour Judge Jennifer O’Brien delivered this 12th Day of December 2024

1. Background: This case comes before the Court by way of equity civil bill issued on 19th November 2021. The plaintiff resides at an address in Dublin and is the joint owner and joint occupier of the premises (the “property” or “xx”) together with her husband. The first and second named defendants are a retired couple, and they are the legal owners of the property adjacent to the plaintiff's property at an address in Dublin (the “neighbours’ property” or “yy”). The third named defendant is the daughter of the first and second named defendants and is the beneficial owner of the said neighbouring property. She is also the person in law entitled to be registered as owner of the said neighbouring property.

2. The plaintiff and the first and second named defendants are next door neighbours to each other. The plaintiff claims that she entered into an agreement in 2019 with the first, second and third named defendants who were represented in the negotiations by their agent, namely Mr. John Connolly who is the husband of the third named defendant. It is claimed that under the terms of the agreement, the plaintiff agreed not to object to the planning permission being sought by the first and second named defendants for works at their property, but it was understood that she the plaintiff would make observations in relation to her concerns arising in connection with the proposed planning permission. In consideration of the plaintiff not objecting, it is claimed that the following was agreed by the defendants:

i. There was to be no trespass onto the property of the plaintiff. ii. The works would be conducted entirely within the curtilage of the property of the first and second named defendants. iii. The mature evergreen hedge on the property of the plaintiff would not be interfered with or damaged. iv. The windows on the southeastern roof space would be moved to the other side of the apex so as not to overlook the property of the plaintiff (and other minor issues)

and there would be no ingress or overhanging onto the property of the plaintiff as a result of the said development.

3. It is claimed that in or about the month of August 2019, the first and second named defendants were granted planning permission to construct an extension to their property and to make certain alterations. The reference from the planning permission granted by Dublin City Council is XX.

4. The demolition and excavation work for the premises of the first, second and third named defendants commenced in or about the month of June 2021. It is alleged that the construction work is in breach of the planning permission, in that the works are not within the curtilage of the property of the defendants and as such the defendants are trespassing into the property of the plaintiff in breach of planning permission.

5. In addition, in or about the week ending 9 July 2021 the plaintiff noticed that damage had been caused to her boundary wall. The wall had been cracked, damaged and pushed onto the property and it is alleged this was caused by the defendants, their servants, and/ or agents. In a meeting on 15 July 2021, between

Martin Ryan (on behalf of the plaintiff) and Josh Maguire (on behalf of the first, second and third named defendants) it is alleged the said damage was acknowledged. The defendants were called upon to refrain from diminishing and interfering with the plaintiff’s property rights. It was subsequently agreed between the parties that the damage to the property would be repaired and reinstated by the defendants and/ or each of them, their respective servants and or agents and that agreement is evidenced in writing.

6. It is alleged that in breach of the said agreement the defendants and each of them and their respective servants and or agents have failed, neglected and /or refused to repair and reinstate the property of the plaintiff. Instead, the defendants, their servants and/ or agents have removed in its entirety the boundary and garden wall and it’s foundations and have excavated under the concrete path at the property of the plaintiff to within approximately 6 inches of the gable wall to the plaintiff’s property. It is further alleged that they have damaged the said concrete path and have left it in a dangerous and hazardous condition and it is alleged they have damaged the patio of the plaintiff.

7. Further, it is alleged that there is water ingress into the plaintiff’s property as a consequence of demolition of the party wall between the property and the neighbours’ property. In addition, it is alleged that the defendants constructed a joint foundation onto the property in conjunction with the neighbours’ property, in further breach of the said agreement. In addition, it is alleged that the defendants had maintained a hoarding on the property preventing access to the passageway and side entrance to the property. It is alleged that by doing so the defendants, their servants and/or agents have trespassed upon the property. In addition, it is alleged that the defendants, their servants and/ or agents have damaged the mature Leylandii evergreen hedge on the property by causing damage to the hedge and disturbance to the root network causing the hedge to die, in express breach of the agreement between the parties.

8. The plaintiff claims that they have called upon the defendants and each of them, their respective servants and/ or agents to provide the necessary access to their property to enable the plaintiff’s builders and other experts to assess the damage to her property and to repair the damage and to reinstate the plaintiff’s property including the boundary wall and the damaged hedge and the undermined garden path. It is alleged that the defendants and each of their respective servants and/ or agents have trespassed and continued to trespass on the property of the plaintiff up to and until the 12th day of November 2021. It is claimed that despite demands, the defendants and each of them have refused, failed and neglected to comply with the wishes of the plaintiff. As a result, the plaintiff alleges that she has suffered loss, damage and inconvenience. It is claimed that the said loss, damage, inconvenience and expense are as a direct result of the negligence, breach of duty and breach of planning permission and trespass on the part of the defendants and each of them and their respective servants and/ or agents. Further, or in the alternative, it is claimed that the defendants, their servants and/ or agents have created and maintained a nuisance or hazard at the said location. The plaintiff claims that she's entitled to the quiet, peaceful use and enjoyment of her property but is unable to use the said property as foresaid as a result of the negligence, nuisance, trespass and breach of duty and breach of planning permission on the part of the defendants, and each of them and their respective servants and/ or agents. Despite demands, the defendants, it is alleged have refused, failed and neglected to comply with the wishes of the plaintiff. It is alleged that the defendants threaten and intend, unless restrained by the court to continue to trespass upon the aforementioned lands of the plaintiff and to repeat and continue the wrongful acts above complained of.

9. A full defence was lodged to the proceedings on 11 March 2022. In particular it is denied that the defendants entered into the agreement set out at paragraph five of the plaintiff’s indorsement of claim. It is denied that the evergreen hedge is the property of the plaintiff. The defence sets out that the plaintiff was at all material times aware of the planning application which was made and that she lodged a submission to the said application. The plaintiff was notified of the decision of the planning authority to grant permission and did not object to what had been permitted. In addition, the plaintiff took no steps to either appeal the decision or to take proceedings in respect of any such decision and proceeded to allow the defendants to commence the development, in the full knowledge of the nature and extent of the development.

10. It is denied that there is any ingress into the plaintiff’s property in the manner alleged or at all. It is submitted that there is an express acknowledgement by the plaintiff that the wall which was demolished was a party wall and that was proposed and permitted in the planning permission granted. It is submitted that the plaintiff was aware of this proposal and the plaintiff’s advisor expressly sought that the party wall be demolished and reconstructed. As such, it is claimed that the plaintiff is estopped from seeking to raise these issues in these proceedings in these circumstances. It is denied that the defendants constructed joint foundations onto the plaintiff’s property in the manner alleged at paragraph ten or at all. It is claimed that a joint foundation was cast across the boundary line of the two properties, having been expressly sought by the plaintiff’s advisor to do so. A hoarding was erected by the defendants to protect the plaintiff’s property, with her agreement having been expressly sought by the plaintiff’s advisor. It is expressly denied that the plaintiff was prevented from gaining access to the passageway and side entrance of the plaintiff's property, whether as alleged or at all.

11. It is denied that the defendants, their servants and or agents, have trespassed upon the property of the plaintiff, and any entry onto the plaintiff’s property was done in the full knowledge of the plaintiff and with the consent of the owner/ owners of the property. It is further denied that the defendants have caused the alleged or any damage to the Leylandii evergreen hedge. It is claimed that any works in the vicinity of the hedge were carried out exclusively within the defendant’s property.

It is claimed that the defendants were entitled to and required by their planning permission to confine their works within their own property and to carry out the works in accordance with the terms and conditions of the planning permission granted. It is claimed that the defendants have complied in full with their obligations in that regard.

12. It is denied that the defendants have prevented access on the part of the plaintiff to the property in the manner set out in the indorsement of claim. It is further denied that the defendants have trespassed or continue to trespass on the property of the plaintiff. It is denied that the defendants have any obligation to comply with the wishes of the plaintiff as pleaded. It is denied that the plaintiff has suffered the alleged or any loss, damage or inconvenience. Further, it is denied that there has been any negligence or breach of duty or breach of planning permission or trespass as alleged or at all.

13. It is further denied that the defendants have created or maintained the alleged or any nuisance and /or hazard at the said location.

14. It is admitted that the plaintiff is entitled to the quiet peaceful enjoyment of the property. With that said, that right is not absolute, and the defendants must be entitled to carry out the development for the works specified in their planning permission and in respect of which planning permission has been granted.

15. Further, the plaintiff has failed to plead any particulars in respect of the claim of nuisance and/or negligence and/or breach of duty and/or the particulars of the breaches of the planning permission as alleged. The plaintiff’s claim for damages is denied.

16. The parties exchanged notice for particulars and replies, and further and better particulars of loss and damage set out the damage to the hedge and also set out a further allegation with regard to the damp proof membrane at the new extension.

It is stated therein that on inspection of the defendant’s property, it was discovered that the level of the new finished floor in the defendant’s property was 475 millimetres above the level of the internal passageway and garage floor level in the plaintiff’s property. It is claimed that this leads to the conclusion that the concrete floor slab in the defendant’s property was not poured on a damp proof membrane.

It is alleged that the consequences of the damp proof membrane being laid on top of the concrete slab, instead of under it, is that the concrete slab is exposed to and absorbs damp from the ground. It is alleged that as the concrete slab rises to approximately 285-290 millimetres above the level of the damp proof course in the party wall, this section of the party wall above the floor level in the internal pathway and garage is now exposed to continual dampness. It is claimed that this is negligent building practice. The only way to restore the party wall to it’s prior dry state is to remove and replace a narrow strip of the new floor for it’s full length and depth in the defendant’s property where it meets the party wall to the plaintiff’s property. As the concrete strip is replaced, the new concrete slab should be poured on top of the damp proof membrane that laps and is sealed to the damp proof course in the party wall and which rises up the party wall for the full depth of the new floor. The insulation can then be laid directly on top of the concrete slab before the screed and finishes are provided as at present.

17. The further and better particulars of water damage also provide that the plaintiff’s property was further inspected in September 2022, October 2022 and November 2022 by experts engaged by the plaintiff. Those inspections concurred with the findings of the previous inspection, such that the dampness on the said party wall was found to exist, with paint flaking and efflorescence of the blockwork allegedly caused by the works undertaken to the adjoining property by the defendants. It was confirmed that the moisture levels are above certain levels in the masonry wall which will lead to mould formation on the face of the wall and over time, degeneration of the fabric and finish of the wall. Mould and mould spores can give rise to respiratory problems, allergies and asthma. The plaintiff also sets out particulars of special damages.

18. The court heard evidence over a number of days, nine in total, commencing in late 2023 and concluding at the end of term in 2024. The court has also had the benefit of expert evidence from a witness for the defendants and further from a court appointed expert who attended the property for the purpose of ascertaining the position with regard to the damp proof coursing in the wall of the plaintiff’s property and the location of the damp proof membrane contained in the new floor construction of the defendant’s property. The court appointed expert also took readings as to the current level of moisture at different points of the garage wall, in the plaintiff’s property.

19. The plaintiff gave evidence that she and her husband moved into the property in October 2003. Her neighbours were Michael and Anne Flanagan, together with their daughter Sinead Flanagan who was living with them. She said that she had no difficulty with the defendants prior to this work being carried out. She said the wall in her passageway to her garage was not damp. It contained a dummy manhole cover, however there was no drain at that location. She said there was little prior discussion with the first defendant Michael Flanagan other than he said that they were applying for planning permission. Michael Flanagan had said that his son-inlaw was dealing with the matter and that he would come in some evening to discuss their plans with the plaintiff and her husband. She said that when the son-in-law, Mr. Connolly attended at her property they went to the back garden and discussed the fact that the extension would affect the light enjoyed by the plaintiff’s property. They discussed the hedge which she didn't want interfered with and also there was some discussion about the wall between the two properties and the two skylights and any impact on privacy. She gave evidence that these discussions took place in July of 2019 at which point she says it was agreed that she and her husband would not object to the application for planning permission, provided their concerns were addressed. She referred to a series of email exchanges and conversations which took place with the defendant’s architect. She was of the belief that most of their concerns would be addressed. She gave evidence that she lodged an observation to the planning permission in that she understood that she had agreement with the defendants that the Local Authority consider these matters in the context of the application for planning permission.

20. The plaintiff gave evidence that in August 2019 the planning permission was granted and that in June 2021 she met Mr. Flanagan in the driveway. He informed her that work was about to start and that he would give the plaintiff’s husband’s number to the builder, if any contact was required. She gave evidence that in July 2021 she came home from work one day to find that the garden wall to the rear of the property had been damaged, that a crack had appeared in the plaster work and while the wall had not collapsed it was badly damaged. She said that on that Monday morning she waited for the builders and pointed out the damage to the wall and requested that no further damage would occur. She said she was very disappointed as she had thought their concerns had been taken on board by her neighbours and their builder. She said at this point she decided to get her own expert involved, Mr. Martin Ryan. It was suggested that Mr. Ryan and the expert for the defendants might meet each other to discuss taking down the damaged wall and putting up a new wall. They also needed to put hoarding up on the path. It was agreed the demolition and rebuilding of the wall would take place within two or three days. The hoarding was to remain in place just while they demolished the wall. This hoarding was to be adjacent to the door to the plaintiff's garage at their side passage.

21. The plaintiff gave evidence that the hoarding went up on 20 July 2021 and remained in place until November 2021. She gave evidence that the hoarding was not placed where it was meant to go. She said the defendant’s builder took down the wall and excavated underneath her side path, laying a foundation underneath their path and excavating under the path on her side. She said there was also work carried out under the hedge and that the roots were damaged and sticking up and that the path had become broken at the bottom. She said that she didn't give permission for any of this work. She said that her path was completely unusable as a result of this work. She referred to a photograph at page 18 of the book of photographs which depicted the garden path, undermined by the garden wall being removed. She said she couldn't go out her back door as a consequence of these works. She gave evidence that in November 2021, the defendants eventually removed the new foundations that they had placed on her land. She said that at that point they took down the hoarding and built a wall in a day. She said that they built a much higher wall which went to the hedge.

22. She was asked whether there were any other incidents of trespass between July and November 2021. She gave evidence that in August 2021 the defendants trespassed on her property and damaged same. She said that she had taken the hoarding down and she had asked the defendants not to come near her property and their builder came into the garden and picked up the hoarding and put it back in place.

23. She gave evidence that prior to December 2021, herself and her husband used the garage as a home gym and a utility room and that it also provided a passage to their back garden if they were doing work there. She said that after the works began at her neighbour’s property, she noticed a powdery substance on the wall of the garage. She asked her expert Mr. Martin Ryan to investigate. Negotiations took place between July and October 2021. The Flanagan’s and Mr. Ryan agreed with Mr. Maguire a plan for reinstatement of the garden wall.

24. She said that in March 2022 the situation regarding the dampness had been notified to the defendants following Mr. Ryan's visit in January. Mr. Ryan had prepared a report and he was anxious that the defendants would be notified of the position.

She said that while the defendants made offers with regards to the proceedings which have now issued, that none of their offers contained any proposals with regard to the damp wall.

25. The plaintiff gave evidence that this was affecting the condition of the house from the garage at the front to the back door and that there was a line of dampness and that the paint had started to flake off the wall. There was difficulty opening the back door as it was becoming caught on the ground. There was also a patch of dampness above the back door and that further, she couldn't use the side passageway given that the path had been undermined and it was likely to collapse. She also gave evidence that the side of the house and the patio had been splattered with plaster from the defendants’ building works.

26. She also gave evidence that the cost of repairing the path, the patio and the garden wall would be approximately €15,000 together with Mr. Ryan's fee of approximately €20,000 at this stage and a further fee of €1,900 to Mr. Goodman.

27. She gave evidence that her enjoyment of the property had been seriously curtailed since July 2021 and that this had caused significant upset to her and her family. She said that the security of her own home had been taken away and that she could no longer enjoy returning to her home after a long day's work. She said that the defendants and their agents had treated her house as part of the building site and that she couldn't be in the house when the work was being done. She said there was dust everywhere during this period. All of the work was carried out with total disregard for the plaintiff and that things had gone from bad to worse and that the defendants had started calling her names and staring at her while she was in her driveway.

28. The plaintiff was cross examined with regard to the fact that her husband had acted for the Flanagan’s at the time of the transfer of the property to their daughter.

29. The plaintiff said she had no desire to litigate, and she didn't wish to come to court.

There had been negotiations between Mr. Maguire and Mr. Ryan. The plaintiff was brought through the booklet of emails commencing at page 9. Counsel referred to the email from Martin Ryan to Josh Maguire dated 19 July 2021 which is set out below in full:

Subject: Re party line between xx (plaintiff’s property)-yy(defendant’s property), XXX Dublin, DXX.

Dear Josh,

I reply to your points below as follow:

Based on your e-mail, and our phone conversation this morning, it is my understanding that your clients are requesting that the existing 1,860mm long section of 225mm blockwork party wall immediately behind the original garages between the houses be demolished and rebuilt as two separate leaves, with a 100mm blockwork leaf on the number xx(plaintiff’s) side.

Correct.

In addition, it is our understanding that your clients wish to have the second, 2,900 mm long, section of 100mm blockwork (which has become destabilized) demolished and rebuilt as, with 100mm blockwork.

Correct.

It is also our understanding that your clients wish to have the third, 1,960 mm long, section of 100mm blockwork retained as it is, or if necessary for practical purposes, rebuilt as it is with 100mm blockwork.

Correct.

All three sections of wall of 100mm blockwork to be finished at the height of the existing shed/ toilet wall (approximately 2,100 mm above FFL) to achieve a straight alignment.

Correct and for clarification FFL is taken to mean finished ground floor level.

All 100mm block wall facing the passageway of number xx to be finished with sand/ cement render and flashed with lead flashing from the side wall of the extension at yy. Existing finished passageway width of 820 millimetres to be maintained on the xx side.

Correct. Again, for clarification the new garden wall to be finished on top with the concrete capping similar to the existing. The lead flashing would be applied later when the extension is being built.

It is our understanding that your client is happy to afford immediate access to their property to facilitate execution of these works. It is noted that the demolition works involved would mean that the side access would be unavailable for use, on safety grounds, for 2-3 days, while the works were being carried out.

Correct. Please confirm when the demolition works are likely to take place and the duration of the construction of the new garden wall which is expected to take place immediately after the demolition of these walls.

If you have any further queries, please do not hesitate to let me know.

With kind regards,

Yours sincerely,

Martin Ryan,

Southern View, Carrickbrack Road, Baily, Howth, County Dublin, D13W667

Telephone: (01) 832 2253

(The above email is a response by Mr. Ryan to Mr. Maguire’s email of 19 July 2021.)

30. In the course of her evidence the plaintiff acknowledged that there had been substantial engagement by the experts and that agreement had been reached with regard to management of the party wall to the rear of her property.

31. Counsel referred to pages one and two of the book of inter-party correspondence and in particular to the first letter of 3 August 2021 (which is undated) sent by Thorpe & Taaffe Solicitors to Ms. Sinead Flanagan and marked urgent. For the sake of clarity that letter is set out in full below:

Our client: - Rita Considine

Damage, trespass, nuisance, statutory nuisance to the premises at xx, Dublin X.

Dear Madam,

We have been instructed by Rita Considine of xx, Dublin X with regard to the above matter.

We understand, that in the month of July 2021, that you, your servants and or agents carried out certain works to your property and that during the course of such works, damaged our client’s boundary wall and foundations, path and foundations, rear garage door and surrounds and caused water ingress and also damaged our client’s kitchen extension having excavated within 6 inches of the gable wall of the said kitchen extension.

You, your servants and or agents have damaged the Leylandii evergreen hedge separating our client’s property and your adjoining property. You have unlawfully removed the foundations to our client’s garden wall and unlawfully excavated under our client’s pathway and removed it’s foundations. In addition, you, your servants and or agents have unlawfully trespassed upon our client’s property. It is clear to our client that you are in breach of the planning permission granted to you by Dublin City County and bearing reference xx and that you have caused extensive damage to our client’s said property, causing nuisance, including statutory nuisance, trespass and damage, to our client.

The trespass to our client’s property and the damage caused thereto is continuing.

Our client was shocked to discover the extent of the damage caused to her property and the unlawful trespass upon same. The temporary hoarding erected by you, your servants and or agents completely blocked access to our client’s concrete path and site of the path and works carried out at the party line were deliberately obscured by you, your servants and or agents. Our client is greatly upset and distressed by this unlawful action by you, your servants and or agents and by the damage caused to her property.

From our instructions and investigations, it is quite clear that the incidents complained of by our client were caused by the negligence, breach of duty, including breach of statutory duty of you, your servants and or agents, and the trespass by you and your servants and or agents.

In addition, having initially caused damage to our client’s boundary wall and having entered into an agreement to repair and replace the same (which agreement is evidenced in writing), you have breached that agreement.

The purpose of this letter is to call upon you to admit full liability and, agree to compensate our client, for all loss, damage, including future loss, economic loss and suffering. This letter is to call upon you to immediately cease the trespass onto our client’s said property. This letter is to call upon you to immediately and forthwith cease and desist from any further works to your property at yy (defendant’s property), Dublin X, until such time as the damage caused to our client’s property has been fully repaired and the property reinstated to its original condition.

Finally, this letter is to call upon you to conduct the works to your property in accordance with the planning permission granted and to do so entirely within the curtilage of your own property to include all overhangs, finishes and services at ground floor, first floor and roof level including no extract emissions into or over our client’s property. Should we not hear from you to this effect, forthwith and before lunchtime on Tuesday 3 August 2021, we have been instructed to institute proceedings against you forthwith and, without any further notice thereafter. In addition, our client will immediately and without further notice to you, seek an injunction in order to protect her property, reinstate the same and prevent further damage and to prevent the further trespass.

This may involve you incurring the legal costs.

Please note, that unless the matters referred to above are remedied immediately and unless liability is admitted by you and or Sinead Flanagan and or DAC & Company Limited, proceedings will be instituted against all of you and this letter will be used to tax the unsuccessful defendant with the costs of the successful defendant, if any.

May we respectfully advise that you pass this letter on to your solicitors and your insurance company, and we would ask you to please kindly furnish us with the name of your insurers and your policy number, so we can correspond directly with them.

Please confirm to us in writing and by return as to whether it was you that instructed DAC & Company Limited to trespass upon our client’s property and cause the extensive damage thereto as detailed above?

Under no circumstances are you to contact our client in connection with this matter and all communication must be addressed to this office.

We look forward to hearing from you in writing and by return.

Yours faithfully,

David Thorpe,

Thorpe & Taaffe Solicitors.

32. Counsel put it to the plaintiff that as of the 3rd of August 2021 she was fully intent on litigating. The plaintiff responded that this letter was written by her solicitor following her discovery of the act of trespass on the part of the defendant. The plaintiff outlined that she did not issue proceedings until November 2021 as she had been left with no other option.

33. Counsel referred to the letter on page 7 addressed to Mr. Thorpe, that is a letter of

4 August 2021 which contains an open offer for the purpose of resolving matters and which included extensive proposals. The said letter is set out below:

Re: xx and yy X, Dublin DXX

Dear David,

Further to your recent letters and telephone conversation with Omar, with regard to the above matter he has asked me to respond to your most recent letter whilst he is out of the country on annual leave.

It appears from your correspondence to date as if proceedings are imminent and your client is keen to pursue same; However, at the same time it is clear that our client’s respective architects (Martin Ryan and Josh Maguire) have been engaged in ongoing discussions as regards a solution and it appears that the following ten-point plan has been agreed:

1. Work is to cease on the site at yy on that portion adjacent to xx until such time as the damage to the property at xx is fully repaired and reinstated.

2. Saw cut the existing new foundation in the centre of the party line with a 610 millimetre/ 24-inch blade so that the blade cuts through the mesh reinforcement. It is essential that the reinforcement is cut through to facilitate future removal as independent structures. Martin Ryan to be notified and present to agree when the (party) line is established, and the saw cutting is carried out. The (party) line must be agreed with Martin Ryan immediately prior to the cutting of the foundation.

Martin Ryan to oversee this work and should any issues arise the contractor is to follow the instruction and direction of Martin Ryan.

3. Construct new rising wall on xx (plaintiff’s) side of party line with 440X215X100mm solid concrete block work laid on flat up to the underside of the existing concrete path level, backfilling the full volume of the void behind (under the concrete path) with a lean concrete mix. Martin Ryan to be notified and present to oversee when the rising wall is under construction and backfilled and should any issue arise the contractor is to follow the instruction and direction of Martin Ryan.

4. The existing hoarding on side of xx (plaintiff’s side) to be removed upon completion of rising wall to the concrete path level. Thereafter, the hoarding will be erected solely within the site at yy (defendant’s side).

5. Existing concrete path to xx (plaintiff’s side) to be reviewed by Martin Ryan when hoarding and covering is removed and to be immediately repaired and/ or removed and replaced as directed by Martin Ryan prior to the garden wall being reconstructed.

6. Reconstruct garden wall on xx (plaintiff’s) side of party line with 100mm solid concrete fair faced block work from above rising wall level to a minimum height of 2,100mm above the existing concrete path level. The top of the wall to be in a horizontal plane for its full length with the concrete capping on top. This new garden wall will require to be flashed from the side wall of the new extension when this side wall of the extension is constructed, and my client will grant access solely for the installation of this flashing on a date to be agreed in advance between the contractor and Martin Ryan. Martin Ryan to be notified and present to oversee the construction of the garden wall, the capping and the flashing and should any issues arise the contractor is to follow the instruction and direction of Martin Ryan.

7. Timeline for 1-6 above is 10 days to completion with commencement within two days of signed legal agreements.

8. When two above is completed the rising wall in the area of the exposed hedge root ball to be immediately constructed to the height of ground level in xx (plaintiff’s side) so that topsoil can be backfilled and compacted under, around and over the root ball to ground level in xx (plaintiff’s side). Martin Ryan to be notified and present to oversee the backfilling and compaction of topsoil to the root ball (i.e., where such backfilling and compaction is on my client’s side of the party line).

Should any issues arise the contractor is to follow the instruction and direction of Martin Ryan.

9. When two above is completed the render repair above the rear garage door to take place to stop the recent rainwater penetration through the wall and the garage door frame straps to be refixed to the existing rear wall.

10. The contractor to facilitate access for Martin Ryan to inspect the works at any stage, subject to reasonable notice and during normal working hours.

In circumstances where our client’s respective architects have reached a provisional agreement, any litigation is redundant and all that needs to be done is to finalise the agreement in writing for the sake of clarity on the part of all parties and move on with allowing the works to be carried out.

It strikes me that whilst finalising this agreement could be carried out in correspondence between our respective offices, if there are any issues arising, it might speed up the process if the parties, clients, lawyers and architects, attend a joint meeting.

I trust this sensible and swift approach is agreeable to you and I look forward to hearing from you shortly.

Yours sincerely,

Derek Hampson,

Hennessy & Perrozzi Solicitors

34. The cross-examination continued such that counsel put various items of correspondence to the witness. It was put to Ms. Considine that ongoing attempts on the part of the defendants to resolve matters were met with threats of litigation.

The witness responded that given the damage to her property and her building that of course she was going to take steps to protect her position. While the defendants eventually changed their position this was a month later and in the meantime the property had been damaged. The witness said that on the 5th of August it was acknowledged that the foundation was on her property and that she just wanted her property put back and that she wanted her builder to do it. There was reference to the letter of 09 August, the witness said that Mr. Maguire was suggesting something had been agreed which was never agreed and at that point the witness spoke to her solicitor. Counsel referred to the letter of 10 August and the suggestion that a mediator from the Royal Institute of Architects would be appointed. The witness said that two days into the ten-point plan, the defendants wanted to do something else.

35. Counsel referred to the letter of 27 August 2021 and the proposal regarding a meeting as illustrating an ongoing willingness to engage on the part of the defendants. The plaintiff acknowledged that a meeting took place. She said that proposals were made which were never accepted. Counsel referred to the letter of

16 September 2021 which contains an acknowledgment that the footpath is unsafe due to the excavation. Reference was also made to the letter of 23 September which contains a very extensive proposal. The response to that letter is set out in the plaintiff’s solicitors’ letter of 29 September 2021 which reiterates the proposal made on behalf of the plaintiff in earlier correspondence. That is the proposals set out in the letter of 04 August which reads as follows:

“Our client: Rita Considine Your client: Sinead Flanagan In the matter of Michael and Anne Flanagan, Sinead Flanagan and John Connolly; Damage, trespass, nuisance and statutory nuisance to the premises at xx, Dublin X Dear Sirs, We acknowledge receipt of your letter 04 August 2021, the contents of which we note with some considerable surprise and to which we would reply as follows:

1. What is abundantly clear, and which is recorded in your aforementioned letter, you either have no instructions or very little instruction, as to whether or not you are in a position to deal with this matter is a matter entirely between you and your client. Your letter is less than helpful, particularly in a situation where your client, her servants and or agents have trespassed upon our client’s property and have caused extensive damage thereto. Your comments our client has set “an unreasonable time frame” are not understood and we say that as your client, her servants and or agents are aware of the trespass and damage caused by them to our client’s property since 9 July 2021. It would be far better if you had familiarised yourself with the actual facts and “sequence” of events before you wrote your aforementioned letter as it is clear that you are not so familiar with the circumstances and actual facts. Matters that were agreed are clearly recorded in the e-mail correspondence between our client’s architect, Mr.

Martin Ryan and your client’s architect, Mr. Josh Maguire. That correspondence is explicit, and your client is in breach of the agreement contained in that correspondence. Contrary to your incorrect assertion, there is clear negligence, breach of duty, breach of statutory duty, trespass and breach of the said agreement by your client, her servants and or agents.

2. There clearly has been a “misinterpretation” and “misunderstanding” on the part of your client, her servants and or agents in respect of the explicit and straightforward terms of the agreement. This was admitted and confirmed to Mr. Ryan by your client’s contractor, Mr. Dave Cashin, during the course of a site meeting yesterday. Mr. Ryan will be available to give evidence to the court in respect of all of these matters, should it become necessary.

3. Contrary to your further incorrect assertion the only matters that have “changed from the agreed position”, is your client’s breach of agreement and that of her servants and or agents by their trespass upon our client’s property (which continues) and the damage caused thereto by them. Your client, her servants and/or agents are fully aware as to what must now be done without further delay in order to remedy their breaches as aforementioned.

4. Your contradictory comments regarding your “instructions” are not understood particularly as it is apparent that you have little or no instructions as is confirmed in your aforementioned letter. However, what is clear is that your client is NOT acting “in accordance with planning permission register reference ” for the reasons detailed above and as confirmed by your client’s servants and or agents to our client’s retained expert. We would reiterate that your client, her servants and or agents did not and does not have our client’s permission and consent to trespass upon her property and cause extensive damage thereto.

5. In relation to the third last paragraph of your aforementioned correspondence, you are obviously missing the point as our client will bring proceedings for the purposes of protecting her property from continued trespass and damage and for the reinstatement and repair of her property by your client, her servants and or agents. Our client will also seek her legal costs and all ancillary costs, including Mr. Ryan's fees. Compensation will be a matter for the trial judge.

6. Does your firm have authority to accept service of proceedings?

7. We do not intend to litigate this matter with you through correspondence and we would ask you to limit your response as to whether or not you have authority to accept service of proceedings.

8. Your client has been afforded every opportunity to remedy this situation and to date, it is clear that she has failed to grasp that opportunity. Our client would afford your client one final opportunity to remedy the aforementioned measures, details of which said measures have been provided to your client’s appointed architect, Mr. Josh Maguire.

9. Finally, please note that if measures are not resolved fully and to our client’s satisfaction on or before close of business this evening, our firm instructions are to seek immediate intervention of the court to protect our client’s position and her property. This will be done without any further notice.

10. Please note our client’s position.

11. We look forward to hearing from you as aforementioned. Yours faithfully, David Thorpe Thorpe & Taaffe Solicitors”

36. Counsel referred to further correspondence from the plaintiff’s solicitor dated 29 September 2021 which contains a requirement regarding the cessation of work at the neighbour’s property. The plaintiff gave evidence that the defendants had agreed to cessation of the work until such time as her property was fully repaired and reinstated to her satisfaction.

37. Counsel referred to the letter of 19 October 2021 to the plaintiff’s solicitors which contains a proposal to commence works to remove the foundation on the 22nd of October. Under this proposal, the hoarding would be moved back to within the plaintiff’s property. Permission was sought by the defendant’s builders to access the plaintiff’s property to remove the foundation and hoarding. That letter also contains the following paragraph:

“You might also confirm that your client acknowledges and understands that once the hoarding is removed, the footpath and the adjacent excavation is unsafe and represents a clear hazard until such time as the construction works within number yy is complete.”

38. The plaintiff gave evidence that herself and her husband had negotiated all summer and that the defendants were just doing what they wanted. They were blaming her because they weren't able to move into their property, but she said that was a matter for themselves to find accommodation elsewhere.

39. Counsel referred to the letter of 20 October 2021 and the threat therein to apply for injunctive relief and asked the witness whether such relief had been sought. The plaintiff confirmed that no such relief had been sought as the parties were engaged in further negotiations.

40. Counsel referred to the letter of 03 November 2021 which contained a financial proposal for full and final settlement of all matters arising from the construction of the extension. The witness gave evidence that she and her husband were worn out at that stage as the defendants had moved off the original proposal and their attitude was that they were going ahead with the building work and not wanting to pay her builder.

41. The plaintiff gave evidence that the defendants did not reinstate her property as before and simply built a wall on their side having cut the foundation at an agreed point.

42. Counsel referred to page 157 of the booklet of correspondence and the letter dated

15 May 2023 to the plaintiff’s solicitors which includes a request that the defendants be permitted “to complete the works, to include reinstatement of the pathway, as originally agreed and envisaged, including, specifically, in correspondence prior to the initiation of the plaintiff’s proceedings.” Counsel referred to the ten-point plan and the witness responded that their client kept changing the goalpost. It was put to the witness that she had failed to take any steps for the purpose of mitigating the alleged damage. The witness responded that her husband had been unwell and that she had been distracted with other matters over the previous two years. Counsel put it to her that it was clearly not a priority that she’d taken no steps to fix the path and wall in the two years since these matters had occurred.

43. The plaintiff gave further evidence with regard to the damage caused to the boundary wall. When asked whether she made a complaint to the local planning authority, she said that her agents were dealing with the matter and that there was a foundation on her property and her requirement was to reinstate her property. It was put to the witness that the planning enforcement file was closed, and that the authority didn't follow up on the matter. The witness responded that that was because the foundation and the hoarding were removed in November 2021.

44. With regard to the issue of dampness, the plaintiff gave evidence that there was no history of dampness at the property. It was put to the witness that there are no baseline figures or records as there were no tests carried out at any earlier point prior to the building works commencing. The plaintiff gave evidence that she’d lived in the house for twenty years and she had some photos and that she was satisfied that there was no issue with dampness at any earlier point in time. It was put to the witness that prior to the trial commencing no figure had been put on what she was seeking under this heading with which the witness agreed.

45. The witness was brought through the pictures of the damaged hedge in the garden.

She was also brought through pictures of the garage. There was flaking on the paint work and there was some paint missing. Counsel referred to the gap under the garage door and that it was an unheated garage and referred to the efflorescence on the wall. Counsel put it to the witness that the opportunity to mediate had been refused and that a motion before the court seeking mediation had been opposed by the plaintiff. It was put to the witness that she was hell bent on driving the matter to trial, to which the plaintiff responded that she has had a very difficult experience and that it has been one step forward and two steps back when dealing with the defendants.

46. The witness was cross-examined regarding the manner of instruction of the experts, engagement in the mediation process and also with regard to difficulties encountered in setting up a meeting between the experts. The witness was also brought through a redirect examination by her own counsel. The court has had an opportunity to listen to this evidence again on the DAR.

47. Mr. Christie, the plaintiff’s husband and co-owner of the property was called to give evidence. He recounted that having purchased their home, both he and the plaintiff redecorated the property from top to bottom. He gave evidence that he suffers from chronic asthma and that he's allergic to everything and as such the dampness in the walls causes him extreme difficulties. He also recounted that Mr.

Cashin & Company had put up hoarding and blocked their access to and from the back of the house and that such matters had been agreed for a two or three-day period only between Mr. Maguire and Mr. Ryan. He said the damp goes all the way along the wall in the garage. In reference to photograph number eleven which was taken on the 23rd of November 2021 at 4:35pm he gave evidence that no damp proof membrane was visible in the construction of the defendant’s property. He said that the damp proof membrane was not visible underneath the metalwork at the adjacent property. He said that there should be blinding and sand and then membrane and while there was a damp proof coursing in the wall, there was no membrane in the new floor construction.

48. He gave evidence that photograph number ten illustrated the wall which had been pushed into their back garden and that he had never noticed such damage to the wall previously. He also gave evidence that the hedge had been uprooted.

49. He gave evidence that photos nineteen and twenty illustrated that the path had been undermined and that they had put the foundation onto his and the plaintiff’s land.

Planning permission stated that there should be no entering onto the neighbouring property without consent. He said that they agreed to saw out the foundation and remove it. The plaintiff complained to Dublin City Council in relation to trespass onto their property which occurred until the foundation was removed in November 2021. He said that they had breached the agreement between the parties by the manner in which they had conducted the work. There was a photo taken by the builder the day before the floor was poured and that there was no damp-proof membrane evident from same. He also gave evidence of further photographs which illustrated the dampness on the full length of the garage wall and that there would have never been such efflorescence prior to the construction works being carried out by the defendants. He gave evidence that further photographs illustrated the way their property has been left regarding the water ingress. He referred to the difficulties opening the door and the splashes of mortar on the exterior wall and the extent of the mess.

50. He said that on account of his serious asthmatic illness he cannot be exposed to damp, mould or anything like that and that he's on a specialist treatment plan. He said that a number of offers have been made to resolve matters and that the correspondence is huge, however same is just a rehash of the 4th August letter. He said that they wanted their builders to come onto their property. He said he wanted the property to be put back the way it was before their agents came in and damaged same. He said the damage that had been caused was difficult to fix. He confirmed that they'd initially been approached by Mr. Connolly, the spouse of the defendant’s daughter as to what their view was on the proposed building works and that they had agreed to certain matters, such as no encroachment on their property, no overhanging and that the boundary hedge would be maintained. The first problem occurred on 20 July 2021 when the boundary wall was broken and pushed over. He said that relations had broken down very early on account of the situation with the wall and also the noise, dirt and dust and the fact that the alarm kept going off constantly. He said that there has been bullying, harassment, intimidation, watching and besetting and that he had been defamed to his friends and clients at the office. He said they had been allowed to continue with the agreed work which was to occur over two or three days however they had to insist that the works ceased on account of the wanton damage and trespass. The works were unilateral works done by the defendant’s servants and agents in breach of the agreement between Mr. Ryan and Mr. Maguire.

51. He said that he was very unwell at the time as his father was dying and ultimately passed away and that his wife instead took the proceedings in her own name at the time as he was undergoing surgery himself. In August 2021 they asked the defendants to cease all work. They went to their solicitor on the advice of Mr.

Ryan. The defendants were digging under the path, and he said they needed this to stop.

52. During cross examination Mr. Christie was brought to page seventeen of the planning booklet with regard to the condition of the party wall, which provides as follows:

“The applicant’s existing single storey rear extension is to be demolished as part of the overall proposed development. This extension incorporates the previously built projected garden wall shown as retained. The applicant is clearly unaware of the extent of cracks/ defects in this structure, as these cracks are only evident on my client’s side of the boundary line. It would be prudent for the applicant to consider a full reconstruction of these structures, as it may well prove more practical, efficient and cost effective. The exposed finished plaster/ render face of this defective wall defines the boundary line between the two properties, and it has been discussed between my clients and the applicant that “the boundary (wall)” will be rebuilt and the proposed extension constructed inside number yy’s (defendant’s) side of the boundary.”

(These words are an extract from a letter written by Mr. Martin Ryan on behalf of the plaintiff to Dublin City Council planning department on the 17th of July 2019).

53. It was put to the witness that Mr. Ryan was of the view that they should consider rebuilding the wall - as such there was no condition on the planning permission as alleged.

54. The witness responded that the planning permission stated that no work should be carried out on the plaintiff’s side of the boundary.

55. The witness went on to give evidence that email correspondence ensued between Mr. Ryan and Mr. Maguire following the destabilisation of the wall and it was understood and agreed that the wall was to be demolished and that the path was not to be undermined, however the witness stated that this is not what happened.

56. It was put to the witness that had they been allowed to continue with the agreed work it would have taken two or three days, however the plaintiff and the witness had insisted on the work ceasing. The witness responded that this was because of the wanton damage and trespass that had occurred. He said the works were unilateral works done by the defendant’s servants and agents in breach of an agreement between Mr. Ryan and Mr. Maguire.

57. The witness gave evidence that he didn't care what they did as long as they didn't interfere with their property. Counsel referred to the letter sent of 3 August 2021 (undated) and the requirement that the work cease and desist. The witness responded that this was on account of the damage caused. It was put to the witness that this correspondence escalated the situation, to which the witness responded that their property was being damaged and that there was continued damage to their property while work was going on. He said that while they had been neighbours for twenty years, he was struck by the fact that Mr. Flanagan had told him not to contact him in relation to the matters.

58. It was put to the witness that they had adopted a heavy-handed approach going through solicitors from the outset. The witness responded saying that they had come onto their property and caused damage and he didn't think it was heavyhanded to protect their own property. He said that ultimately, they agreed to stop all work adjacent to their site.

59. It was put to the witness that he made this a legal issue from day one rather than a neighbourly issue. The witness said that none of the defendants were there and none of them witnessed the damage that was caused by their agents. He said he was concerned about the damage to the wall, the footpath, the hedge and the damp caused to the garage and that there was render over the door. He said that the position with regard to the damp had been notified to the defendant’s solicitors in February 2022 when the property was still a building site. Reference was made to the book of correspondence at page eighty-five. At this juncture the absence of a damp proof membrane had been raised. It was put to the witness that this issue is disputed by Mr. Josh Maguire and Mr. Cashin, to which he responded that they have made a grave error in relation to the building of the floor.

60. Further evidence was given under cross examination with regard to the content of the photographs. The witness reiterated that there is no lapped-up damp proof membrane contained in the new floor construction. He said that's not where the damp comes from, and the height of the damp will be addressed by the experts and that he had used gym equipment in his garage but that he could no longer do so on account of the damp. He said that the damp had remained in the garage area since August 2021. He gave evidence as to the manner in which the damp could be prevented by further work to the defendant’s floor. He referred to the readings on dampness taken by Mr. Ryan and Mr. Goodwin.

61. The witness was asked whether any steps had been taken to remedy the dampness and he responded that he does not go into that part of the house, that he cannot go in there and in essence the neighbour’s construction work had affected their property. On account of the property damage caused by the defendant they decided to leave it there in the event that it needed to be examined. He said the explanation for not mitigating loss in relation to the dampness was that he wished to deal with the root cause and that if a section of the defendant’s floor was removed that the plaintiff’s property could be put back to that way it was.

62. With regard to the hedgerow the witness gave evidence that same was planted by a predecessor in title. Counsel put to the witness that Mr. Flanagan had planted the hedge. He gave evidence that the root of the hedge had been damaged and that in effect the hedge had been butchered by the defendants or their agents. It was put to the witness that Mr. Cashin offered to put topsoil on the roots on their side however as of 3 August the plaintiffs had objected to anyone coming onto their property.

63. It was put to the witness that himself and the plaintiff had decided to go legal on this from the get-go. It was put to the witness that they'd held off the build from August until December 2021. The witness responded that the defendants were in breach of the agreement, they trespassed, caused damage and undermined their home and that they had never agreed to that. He said he didn't use his own legal experience, that he consulted with a solicitor in relation to the matter and asked for the works to stop and that their clients had ignored that. He said he was shocked that anyone would take the liberty to erect hoarding in this manner and to block his and the plaintiff’s access from the front to the back garden. He said it was also a mechanism for concealing what they were trying to do to the plaintiff’s property.

64. He said that it was no longer in breach of the planning as the foundation had been taken out, however it was in breach when it was placed on their property. Counsel put it to the witness that the file had been closed by Dublin County Council in March 2022.

65. In response to being questioned about entering into the mediation process and an order obtained with regard to attendance at mediation, the witness responded that they did everything to try to resolve this case and that they were left with no choice other than to bring proceedings. He said that Mr. Ryan had attended several meetings on their behalf however there was always something else that was wanted by the defendants.

66. Mr. Sheppard, a chartered surveyor was sworn in on behalf of the plaintiff. Details of his report which contains costings of the reinstatement of the boundary wall, path, door, door frame etc. being a figure of €14,493.83 on this work, were read into Court.

67. Mr. Martin Ryan was sworn in and confirmed that he qualified as an architect in 1980. He said that while he still does some work he is mainly retired at this point.

He recounted that he first went to the house in 2003 when the plaintiff and her husband were purchasing the property. He said he also visited the site of the works in July 2021. In relation to the proposed works by the defendant he advised the plaintiff to submit an observation in case a dispute arose afterwards. In July 2021 he received a call from the plaintiff to say that the garden wall had been pushed in accidentally. He contacted Mr. Maguire and arranged a site meeting where they discussed the situation. Mr. Maguire discussed that he would arrange to have the wall rebuilt.

68. At this juncture there was an intervention from counsel with regard to the question of which architect is the plaintiff’s expert for the purpose of the proceedings, Mr.

Ryan or Mr. Goodwin. Counsel for the defendants submitted that the rules are very clear on experts and that it is only permissible to have one expert from a particular discipline.

69. The court then heard from Mr. Goodwin (who was called as a witness as to fact)

who registered to practice as an architect from 2007. He said that he had visited the property in October 2022 and that he inspected the premises in October and November and also in March 2023. He took damp measurements at intervals of one metre from the front to the back of the garage at four different levels. He referred to the report he had prepared in this regard. He said the percentage of moisture in the wall at that point should be below sixteen percent and levels above that were dangerous to the inhabitants. He said the source of moisture at the lower level is rising damp up to one metre in height, the efflorescent salts will wash out and that this wouldn't occur in an old wall but rather occurs where there is newly setting concrete. He said the new floor and subfloor next door was causing damp between the new concrete and the existing wall. He said that it was usual that the existing damp course would be joined with the new damp membrane underneath the new concrete and that would then continue up wall. The concrete floor is wrapped in plastic, and this he said did not occur here. The floor was not protected from the dampness that washed out through the slab and through the wall and it was his view that if compliance with building regulations had occurred efflorescence would not have appeared on the garage wall. He referred to photograph three and the black mould which had appeared due to the presence of moisture. He said the efflorescence was caused by setting concrete. The salts needed the moisture to carry them through the walls. He said rainwater could cause damage but that would be localised. He said efflorescence would not be caused in old walls other than where there was a presence of newly formed concrete.

70. Under cross examination the witness acknowledged that there was no heat in the garage and that there was a gap under the garage door and a drain to the front of the property. The witness said that the water could be coming in under the garage door. The witness responded that he didn't see any puddling or evidence that water had come under the door. With regard to the damp proof membrane on the construction of the new floor at the neighbour’s property, he said it should be continuous with the damp coursing in the wall. It was put to the witness that one house is higher than the other to which he responded that there hadn't been a damp problem previously.

71. Mr. Ryan was recalled and gave evidence that following the damage to the garden wall that it was agreed to knock same to path level. There was no discussion on anything below the ground. He said that the hoarding went up and the foundation was laid between 24 and 31 July and he said this had not been discussed with him, nor did he give permission. The installation of the foundation was a breach of planning and same was constructed on the neighbouring property. The foundation was wider than the walls and transgressed the boundary line. He said that it also went under the path and that no explanation or apology had been offered. He expected different foundations for the structure as opposed to the garden wall.

Underpinning of rising walls was discussed but not foundations for the party wall.

He referred to Option C in the documentation dated 20 July 2021 as setting out the details of what have been agreed between the parties. He said he met Mr. Cashin on site and they had discussed rebuilding the garden wall. It was afterwards that they demolished the walls and they excavated under his client's property to form a foundation, which had been discovered on the August bank holiday weekend. Mr.

Cashin had said that he was instructed by their engineer to build the foundation under the path at the plaintiff’s property. He referred to the comprehensive letter to Mr. Maguire at page ten of the booklets. The demolition of the wall had been agreed and it was understood that the construction of the new wall would not go beyond the boundary line. He said that the defendants were trying to get more floor space and he wondered what would have happened if his clients had been away.

72. With reference to the correspondence between himself and Mr. Maguire, Mr. Ryan said that he was being told what he wanted to hear, Mr. Maguire had said that the work was carried out in good faith in accordance with our client’s understanding of your client’s requirements. He said that they had said that the foundation was for the two new walls and that they wanted to retain the foundation to which Mr.

Ryan was opposed. The witness was then brought through an email from Mr. Josh Maguire dated 3 August 2021 which set out certain proposals. Mr. Ryan explained the context of the requirement that matters be attended to before “two pm today”.

He said the foundation under xx had been poured and no explanation given with regard to same. While they’d agreed to cut the foundation, this didn’t in fact take place for approximately one month. They were never open about why the new rising wall was never done. He gave evidence that it was very obvious that they were attempting to extend the floor area of their property by placing a foundation on the neighbour’s property. The witness was bought through the various exchanges as contained in the book of reports and exchanges between experts. He said that they're always in denial in claiming that the work has been carried out in accordance with an agreement previously reached on the behalf of their respective clients. He said that there was a loss of goodwill between the parties and that he no longer accepted the position as set out in Mr. Maguire’s correspondence. He never approved of the work which Mr. Cashin was doing. He said that ultimately, they agreed to remove all of the foundation in November of that year at a point marked by himself.

73. Referring to the dampness issue he did not accept that this was caused by water blown under the garage door - it could not have made it to the back of the garage, nor could it have caused efflorescence in the wall. He said that salts only emerged from new construction and not from walls that were over twenty years old. He said that he found some of Mr. Santry’s explanations incredible. He gave evidence that it was not possible to take up the metal and place a damp proof membrane on the sand overnight. Where no damp proof membrane was placed in the floor at the appropriate point, he said that same would not comply with building regulations.

He reiterated that it would be impossible to insert the membrane into the floor within a twenty-four-hour period. The court was then referred to section 3(c)4 of the building regulations with regard to the requirement for damp proof membranes.

After an examination of the photographs the witness said that he could see the damp proof coursing in the wall, but that he could not see a damp proof membrane in the new floor construction. In early 2022 there was a very high level of dampness in the garage wall at the property. The witness also gave evidence with regard to the expense of curing the dampness issue. He said the most probable cause was the absence of damp proof membrane under the concrete floor slab.

74. During cross-examination it was put to Mr. Ryan that he was never on the register of architects, notwithstanding that he had told the court that he was a member in the years 2016-2017. Mr. Ryan responded that he was no longer a member of the RIAI and that he does not use the title qualified architect, as he is not a registered professional. He said he has many years experience and that he is still consulted by many of his clients, albeit that he is almost retired. He was cross examined extensively on this issue. It was further put to Mr. Ryan that he has no baseline figures with regard to the issue of dampness on the garage wall at the property. He said he did know that the walls were dry when the house was purchased but that he doesn't have any data as such in relation to that aspect of the matter. He was cross examined as to the precise nature of his readings and the intervals at which they were taken and the height of same. He confirmed that he had not opened the walls or the floor at the property. He said there was a risk of mould at the property, but this had not yet occurred. The inconsistencies in the figures reported for the damp levels in the wall were put to the witness.

75. Mr. Josh Maguire was called into evidence on behalf of the defendants. He confirmed that he is a fellow of the RIAI for over thirty years and that he's worked on big and small projects for many years having set up his own practice thirteen years ago. He said he primarily works on residential works dealing with structures and boundary issues with neighbours and that he's used to the issues that arise in these situations. He said that he has a good understanding of what to expect regarding usual behaviour and ownership related issues. He said that he's worked in a number of properties such as the property which is the subject matter of these proceedings. He said that where work is being carried out close to boundaries that some dialogue was appropriate and that it was also relevant to an application for planning permission with regard to the design of an extension. He said he encouraged his clients to make sure that their neighbours were aware of plans and that he believes that that had happened here. A planning application had been lodged in July 2019 and he said that he'd been engaged in late 2018 with regard to the design of the property.

76. He said that the houses on this road had been built in the early days in groups by different builders in the garden city style which was new at the time and that the construction was taking place in a relatively hilly area. He said that on account of the hilly nature of the terrain that this can have an impact on the construction of the houses which are at stepped levels and as such the damp proof coursing can be at different levels depending on the location of the house. He said there was a significant difference between the location of the damp proof coursing at the two properties in this case. He said that the detail of these specifications were taken account of in the context of the drawings and also discussed with the contractor in the general arrangement of what is to be built. He said that all of this rests on the building regulations and what is the acceptable normal building practice. He referred to the planning book and the front elevation which was to remain unchanged by the work carried out. With regard to the previous extensions, he said that the previous neighbours would have collaborated when carrying out this work together.

77. He said that it is assumed that the boundary is at the centre of the party wall. This was clearly the case in this instance at the back of the property and that the boundary was marked by railings at the front of the property. Party line boundaries were not matters of planning permission as such. He said that this was particularly the case where two neighbours decide to build on a party line, that party wall issues were not issues within the scope of the planning authority. The exact line of the boundary is open to neighbours to agree. The party walls are in joint ownership and as such, he said, nothing could be done without agreement.

78. He said that the planning application in this instance envisaged an ancillary family accommodation, and that the development plan supported this kind of development. That is creating a house to be used by different generations which was adequate and within their means.

79. He gave evidence that Mr. John Connolly contacted him as he had been liaising with the plaintiff next door. Mr. Connolly had asked for advice. He advised that the options were to remove the wall or leave it as is or rebuild it and that whatever the neighbour wants the neighbour gets. He said that they wanted to rebuild the wall and not change anything with regard to the drawings but that an observation had been made in the planning permission. He gave evidence that it was his understanding that Mr. Connolly had agreed a few things with the neighbour with regard to the hedge and putting the wall back up. He referred to the pre-July 2019 email correspondence in which the plaintiff selected option two, that is that the boundary wall would be rebuilt. He said that no condition was actually inserted into the planning permission. There was no planning permission provision that the construction had to be on site. He said that the parties had already agreed that they would retain the hedge.

80. He said he received an email from Mr. Ryan in or around 11 or 13 July with regard to damage caused to the party wall and that he attended at the site with Mr. Ryan and Mr. Cashin. He said that he was somewhat confused by this meeting because Mr. Ryan was there insisting on the wall being retained and fixed, whereas Mr.

Maguire had understood that it was already agreed that the wall would be rebuilt.

He said that there were no solicitors at that meeting and that Mr. Ryan asked for proposals which Mr. Maguire sent him by email. He put forward options A, B and C and that option A was not acceptable and as such option C was proposed instead.

Option C is set out at page six of the booklet on reports and exchanges. It would involve reconstruction of the damage and replacing the existing 225-millimetre solid concrete block work party wall with a new 100-millimetre concrete block wall with concrete capping to match the height of the damaged wall being removed. Mr. Maguire said his response is set out at page eight of the booklet where he agrees with each of the points raised by Mr. Ryan in his email.

81. The correspondence reads as follows:

“It is our understanding that your client is happy to afford immediate access to their property to facilitate execution of these works. It is noted that the demolition works involved would mean that the side access would be unavailable for use, on safety grounds, for two-three days, while the works were being carried out.

Correct. Please confirm when the demolition works are likely to take place and the duration of the construction of the new garden wall which is expected to take place immediately after the demolition of these walls.”

82. The witness confirmed his understanding that they would have immediate access to the property with the permission of the plaintiff for the purpose of carrying out the agreed works.

83. The witness gave evidence that he believed the deadline set by the first letter from the plaintiff’s solicitor of 3 August 2021 (albeit the letter is undated) set an unreasonable deadline as it required steps to be taken by lunchtime that day i.e., 3

August. He said he didn't know what the issue was albeit that Mr. Ryan seemed to be alleging that they were engaged in some kind of land grab over the bank holiday weekend. Mr. Ryan was claiming that he did not discuss anything below the ground and as such works in relation to the foundations had not been agreed. He said the footpath level as set out in Mr. Ryan's email had not been discussed and that Mr. Ryan was happy for them to build on the existing foundation. He said that he immediately sent an email to Mr. Ryan suggesting that they meet in the coming days. Mr. Ryan raises all pertinent issues in his email of 3 August 2021 and Mr.

Maguire's response is set out at page twenty-seven. The witness said the hoarding was erected for safety reasons and the idea of concealment was an extraordinary concept. He said he met with Mr. Ryan and Mr. Cashin and that the intention was to come to an agreement however the site was frozen and while the bricklayer was on site to build the wall he could not do so on account of the legal correspondence.

He agreed there was a lack of clarity regarding their understanding of what Mr.

Ryan wanted. Mr. Maguire put forward a seven-point plan for completion of the works following that meeting. Reference is made to page eighteen of the book of reports and exchanges and in an email of 3 August 2021 sent at 17:46, he proposed that a saw would be used to cut the new foundation and that the path might need to be repaired. Following on from that there were no instructions to Mr. Ryan on the plaintiff’s side, except through solicitors.

84. The court heard further evidence in relation to the matter, in particular from the court appointed expert Mr. Paul Keenan B. Arch FRIAI Dip ARB, who made two site visits to the property. He confirmed that he'd taken a core drill from the neighbour’s property and that he also took damp readings from the garage at the property. He opened up the wall to establish the location of the damp proof course.

His findings on each of these issues are set out in his report. He confirmed that the damp proof course was 260 millimetres above the garage floor and that is lower than the adjoining property. He talked the court through the construction of the core that he removed from the neighbour’s property as follows:

1. Underneath the layer of tile and adhesive he describes layer one as being 80 millimetres of screed;

2. Layer two separating light visqueen;

3. He describes layer three as 125 millimetres of rigid insulation with foil to top;

4. He describes layer four as a radon barrier;

5. Layer five as 50 millimetres of concrete;

6. Layer six is described as a damp proof membrane (DPM);

7. Layer seven is described as 100 millimetres of concrete.

85. He gave evidence that the radon barrier would also operate as a type of damp proof membrane as would the light separating visqueen. He also read his damp readings into evidence. These are set out at page seven of his report and indicate the levels of damp at 150 millimetres above floor and then at 300 millimetres above floor on the two occasions on which testing was carried out. He confirmed that the salts that are washing out in the wall are generally sourced from new block work. He confirmed that most of the dampness is occurring at the level beneath the damp proof coursing.

86. Mr. Maguire was called back into evidence and gave evidence with regards to the email exchanges between himself and Mr. Ryan over the period of August 2021, the ten-point schedule of requirements from the plaintiff and the call in legal correspondence to resolve matters before two pm today or their client would proceed to court. He said that they never did get a formal agreement and that the exchange of correspondence then transferred to solicitors. He gave evidence that in particular the plaintiff’s agent had made it clear that there would be no other right of access. He reiterated that it was his understanding that initially they'd reached agreement on how the matter would proceed and that once the foundation was poured for the wall everything turned on its head. Following that all works were suspended on the insistence of the plaintiff through their lawyers.

87. When asked about the idea of rebuilding the boundary wall on the existing foundations, Mr. Maguire responded that it was inconceivable to build new walls on old foundations. He said he found Mr. Ryan’s assertion that he did not expect normal practice to be done to be most unusual.

88. He gave further evidence to the effect that they took a belt and braces approach to the construction of the floor to include damp proof membrane and other elements.

89. He said that the position of the damp proof coursing in the party wall is as expected following the confirmation of same by the court appointed expert. He says the assertions made by Mr. Goodwin, Mr. Ryan and by Mr. Christie all relied on an assumption that the damp proof coursing was at the floor level in the garage and the witness confirmed that he had seen it and it was not at the floor level, but it was 260 millimetres higher. He said that below the damp proof course level there would always be damp but above same the wall is dryer.

90. Mr. Maguire gave evidence with regard to the construction of a modern floor and that the core extracted by the court’s witness is as he would expect given the work carried out at the neighbour’s property under his instruction. The key thing was that the damp proof membrane is below the damp proof coursing and not above it.

He said that it could be anywhere between 60 millimetres below and 150 millimetres below. He said that in his drawing, which is contained at page sixtysix of the book of photos and sketches he made an assumption that the damp proof coursing was at a level of 250 millimetres, as it turns out he said it was established to be at a level of 260 millimetres. He said that as such the damp proof membrane is present in the construction of the floor and that the damp proof coursing is located at a higher level, as it is required. He gave further evidence that the damp proof coursing can be seen in various photographs, at number sixteen, seventeen and eighteen.

91. He also commented on the results contained in Mr. Keenan’s report regarding the location of dampness and that same primarily appeared beneath the damp proof coursing line. He was cross examined on these and other issues. It was put to the witness that he had a cavalier regard for the plaintiff’s property and that the path had been undermined and that the new foundation had been placed on the plaintiff’s property. He explained that the walls were party walls and rising walls straddled the two properties. He gave evidence that he was never going to build a new wall on the old foundations and that it was imperative that the old foundations were removed first. After the foundation is poured it must cure and this takes approximately 48 hours and then the block work can commence which takes approximately 2 days. He said that he anticipated 10 or 14 days if they had had unimpeded temporary use of the garden. He said it was not possible to build a new wall with the hoarding placed tightly up against it and that this needed to be moved back in order for the construction to take place. He said that Mr. Ryan had agreed that the hoarding would be moved back to the plaintiff’s wall to protect it from damage, specifically at the request of Mr. Ryan until the work was done.

92. At one point in his evidence, Mr. Maguire referred to a drawing that was made on the wall in the neighbour’s property at a meeting which took place on 20 July 2021 between Mr. Cashin and Mr. Ryan (which is contained at page thirteen of the booklet of photographs and sketches). A copy of this drawing is annexed to this

decision. This drawing shows the garden wall that Mr. Ryan had requested to be built and that the dotted line was the boundary line between the two properties.

That line represented the centre line of the old nine-inch block wall. He said that the confirmed width of the path would be 820 millimetres as requested by Mr.

Ryan. That measurement doesn't change in the course of any construction work. It was on the basis of the agreement reached at that meeting on 20 July 2021 that the nine-inch wall was knocked and that the defendants attempted to carry out the further work. Following the demolition of the nine-inch wall, he said it was planned that the new four-inch wall would be brought all the way through the garden, as requested by Mr. Ryan. He said all of those walls straddled the boundary previously and he said that their intention was to build inside the boundary lines, but he said otherwise that Mr. Ryan wanted a separate wall which is what they were planning to build. During the course of his evidence Mr. Maguire confirmed that the pre-existing foundation straddled the boundary of each property, he said that was their starting point and he referred to an August 2021 photo in this regard.

He said that excavation was carried out with the knowledge of the plaintiff, insofar as these matters had been agreed at meetings with Mr. Ryan. He said you need strong foundations to replace a garden wall and he said they would put a decent foundation under any wall.

93. He acknowledged that following on from pouring the foundation the plaintiff requested that same be removed and ultimately it was removed in November 2021.

He said that Mr. Ryan asked for the foundation to be cut and he referred to photograph number twenty-seven in this regard. He said that permission was requested to backfill under the path however same was never granted. He said as a consequence of what occurred they had to alter construction and proceed in a different way. There are no photos of the garden wall as it was never built as there was no agreement in relation to same. He went on to give further evidence regarding the construction of the neighbour’s property.

94. Mr. Santry was called into evidence and adopted his reports as his evidence in relation to the matter. He confirmed that he has worked as an architect in Ireland, the UK and France and he detailed his involvement with the RIAI. He also referred to his updated report which he carried out on foot of Mr. Keenan’s report. He gave evidence that the houses at the lower end of the street were subject to more water issues than the properties at the higher land levels. He confirmed that he examined both premises and the original drawings prepared by Mr. Maguire and that he had sight of the photographs. He also acknowledged that there was DPM in the floor and DPC in the wall, and that the coursing in the wall was at a level higher than that of the membrane in the floor.

95. He gave evidence that the gaps around the garage door were likely the cause of water ingress into that area. He also gave evidence that it was an unheated garage space. He said that rising damp would occur up to the level of the DPC. He went on to refer to Mr. Keenan’s report. He hadn't seen the previous condition of the garage wall so he couldn't comment on same. He said no remedial works could be carried out on the path given the request to cease work on the property. He said that access was not given to complete the works and as such that the wall has ended up with an unsightly finish. He said it is unfortunate but that he does understand why it's not completed. He said that in his opinion there was always damp up to the level of the DPC since construction of the property. It was put to the witness that the efflorescence was a new situation and that same was caused by a new source of damp. The witness denied that this was the case and in his view the wall would always have been damp up to the level of the damp proof coursing. The wet areas appear at the front and the back of the garage that is adjacent to the open areas.

96. Mr. Maguire was recalled into evidence (under cross-examination) and was brought through the email correspondence with Mr. Ryan. He said that it was his understanding that access to the property had been agreed for the purpose of carrying out the agreed works, as depicted in the drawing which was made on the wall in the neighbour’s property on 20 July 2021 and which is set out at page thirteen of the booklet of photographs and sketches. He said that they had access to the property to facilitate these works and that it is inevitable that there must be a foundation for a wall. An existing foundation would not be an adequate foundation in all the circumstances. He said you must have a foundation under a wall and that the foundation that was there was not adequate. He said it was usual for the foundations to straddle the two properties where same was for a party wall.

Here he said that he did not acknowledge having done damage to the property, instead he had responded “we did not do damage to your property” . He said that works that were done were specifically at Mr Ryan’s request. He said that they were not fixing the property but really accommodating the plaintiff in a neighbourly way which is not a statement as regards to damage.

97. He said that his clients were willing to rebuild the wall irrespective of whether damage was done or not. He said where walls were to be built parallel to each other it was normal that the foundations would be for both walls and that a strip foundation would be put in place. He said they were replacing the original foundation and referred to a photograph in this regard. He said that while the new foundation was deeper it straddled the property in the same way that the old foundation had. He said he did know this information from his own knowledge because he said that he could see the old foundation in the photograph. He said that he failed to understand what Mr. Ryan was looking for and while they agreed to cutting the foundation, in his view Mr. Ryan was looking for an exceptional way of carrying out the work. He said that the new foundation was more or less the same width as the old foundation, it was just deeper.

98. It was put to him under cross-examination that this was not the case based on photographs that were furnished in court. He said that their client was surprised that the original foundation had been removed and yet to his mind it was implicit that there would be a new foundation for the new wall. Mr. Ryan had a different view. In so far as he is concerned there was an agreement to build a wall, so it followed that there was an agreement to build a foundation for a wall. However, the plaintiff changed her mind and as such she wanted the foundation removed.

He said that in his view you would never build a new wall on an old foundation, and he was surprised that Mr. Ryan had suggested this. The witness was then brought through the construction of the floor at the neighbour’s property and Mr.

Keenan's report in this regard.

99. Mr. John Connolly was called into evidence, and he recounted his narrative as to what had occurred in relation to the work carried out at their home. He recounted meeting with the plaintiff prior to the construction work and that while she had some questions, he didn't have all of the answers. He said he had no recollection of being shown the boundary wall at that time. He remembered discussing matters such as the size of the back windows and whether there would be an overhang and the position of the skylight. He was aware of the observations that were lodged with the planning authority. He said construction started late on account of Covid-19. He said Mr. Ryan reached out to Mr. Cashin and that he was surprised it wasn't the plaintiff or her husband and at the time he didn't have any reason to believe that there was anything wrong. The plaintiff hadn’t said that she was going to retain an expert. He didn't get involved although he was aware that there were discussions ongoing with regard to the knocked wall. He expected that it would be resolved and confirmed to Mr. Maguire that his instructions were to resolve matters. He subsequently became aware that relations had become frosty and things did not pan out as he had expected. He was informed by Mr. Maguire that Mr. Ryan and Mr. Cashin had reached an agreement that the garden wall was to be rebuilt. He wasn’t aware that it had been damaged and he agreed to the rebuilding of same. He said that he took it that the work was consensual and that the hoarding was in place for safety reasons, and he was not aware that there could be any trespass involved. He said that there was no complaint with regards to the hoarding initially but that it became an issue later.

100. He said he was in shock when he received the plaintiff’s solicitor’s first letter undated but sent on 3 August 2021. He was surprised that his neighbour had never spoken to him first and he panicked. He didn't tell his wife and he said the correspondence contained a request in bold letters not to contact the plaintiff. He had to retain solicitors and he said his stress levels were through the roof. He said that the matter concerned their two families, and that Sinead is an only child and that they also have children. He said that in addition he had to look after his parents in law.

101. He said there were so many letters and correspondence and that they tried to engage positively with the plaintiff in order to reach a resolution of the matter.

The plaintiff made demands that he could not meet and further she wanted him to admit liability, which he could not do so. The book of inter-party correspondence was handed into court and has been read in full. He referred to the emails between Mr. Maguire and Mr. Ryan. The booklet of these has also been handed into court and read in full. He said he found the threat of court between architects most unusual. He found the deadline of 2pm today to be most unreasonable. He said it created an immediate situation where there was no remaining goodwill between the parties and no further granting of access for the purpose of carrying out work. It was clear that any further access would be viewed as trespass. He said he found that the legal tone was very aggressive, and that the situation went nuclear overnight and blew up in his face. He said the situation was made more difficult by the fact that he was not allowed to approach the plaintiffs and that ultimately proceedings were issued in November 2021. He said that efforts to avoid litigation didn't work and that the matter proceeded to a court case. He instructed his solicitors to bring a motion for the purpose of seeking mediation, this was ordered by the judge notwithstanding the opposition from the plaintiff. He said that when mediation failed that he subsequently made an open offer to resolve matters and that the situation was a nightmare.

102. Counsel for the defendants confirmed that a full defence was delivered. A book containing offers was handed into court and has been read in full. It was noted that the case has been heard for a period of nine days before the court and that a case was made that no damp proof membrane had been installed in the floor and further that the plaintiff did not make dampness an issue until the correspondence dating back to March 2022. Reference is made to page eighty-five of the book of correspondence where the issue of dampness is raised for the firsttime.

103. The witness gave evidence that there were no instructions to his architect to trespass on the property. He said that the works were entirely within the curtilage of their own property. He said that they didn't apply for permission to remove the boundary wall, but this had been agreed between the architects.

104. With regard to the damage to the hedge, he acknowledged there had been a slight bit of damage to the hedge caused by moving soil and that they were willing to address these matters with the plaintiff had she been willing to do so. He said that to close the site for six or seven weeks to try and resolve these issues, there's always a cost to someone when you close the site and in this instance that cost was borne by the witness. He said that they moved in in June 2022 and matters remained unresolved. He said it has been a horrific time for them in terms of covering the mortgage, the rent and the construction works, and the family had to move to Donegal at one stage. He said the matter had been referred to in the newspapers a few times and that in essence it had been an absolute nightmare. He said he was not comfortable in such an environment, and it was sad that it had come to this. He said that he found it impossible to understand what happened.

105. The witness was cross examined with regard to the time for which his parents in law had lived at the property and with regard to the work carried out at the site. It was put to the witness that there was no explicit agreement contained in the correspondence with regards to the work to be carried out on the damaged wall. The witness responded that the correspondence shows all of his efforts were to fix the wall and to attend to the hedge. The witness did not agree that trespass had occurred in the manner alleged by the plaintiff.

106. With regard to the damp issue the witness said that he had limited knowledge although it was his understanding that anything under the damp proof coursing would always be damp. He said that he did not cause the damp and therefore he did not have to fix it.

107. Mr. Santry was recalled for the purpose of redirection. He gave evidence as to why the complaint to the planning authority file was closed. He also gave evidence on foot of the report given by Mr. Keenan.

108. The Court suggested that the plaintiff might wish to recall experts to address the content of Mr. Keenan’s report. Counsel for the plaintiff indicated that this would not be necessary.

109. The Court directed that legal submissions be filed on behalf of the plaintiff before 20 September 2024 and that legal submissions would be filed on behalf of the defendants before 20 October 2024.

SUBMISSIONS ON BEHALF OF THE PLAINTIFF

1. Proceedings

1.1 These proceedings were commenced by Equity Civil Bill issued on the 19th day of November 2021 seeking various interlocutory reliefs and injunctions together with damages for negligence/breach of duty, trespass and nuisance.

1.2 The Plaintiff resides at xx, Dublin X, together with her husband. The First and Second named Defendants are a retired couple and/the legal owners of a property adjacent to the Plaintiffs property, which is situate at yy, Dublin X. The Third named Defendant is the daughter of the First and Second named Defendants and now the legal and beneficial owner of the property situate at yy, Dublin X.

1.3 As set out at paragraph 5 of the Indorsement of Claim, the Plaintiff entered into an agreement in 2019 with the First, Second and Third named Defendants wherein the Plaintiff agreed not to object to planning permission being sought by the First and Second named defendants for works at their property. In consideration for the agreement of the Plaintiff not to object, the Defendants agreed to the following: -

(i) There was to be no trespass onto the property of the Plaintiff;

(ii) The works would be conducted entirely within the curtilage of the property of the First and Second named Defendants;

(iii) The mature evergreen hedge on the property of the Plaintiff would not be interfered with or damaged;

(iv) The windows on the southeastern roof spaced be moved to the other side of the apex so as not to overlook the property of the Plaintiff and other minor issues and that there would be no ingress or overhanging onto the property of the Plaintiff as a result of the development.

1.4 The Plaintiff’s claim relates to demolition and excavation work carried out by and on behalf of the Defendants commencing in June of 2021. The proceedings related to damage to and the removal of the rising wall and foundations of the Plaintiff’s garden wall and the trespass which was carried out by the Defendants on the Plaintiff’s property, together with damage to the render, the back door, pathway to the side of the plaintiff's home and to the pathway and patio area at the rear of the plaintiff's home. It subsequently apparent that there was significant dampness and efflorescence on the part of the Plaintiff’s property which was notified to the Defendants and further particulars of loss and damage were furnished in December 2022 and April 2023. In effect, it was pleaded that the dampness and efflorescence of the Plaintiffs property was caused by the failure of the Defendants to install any or any adequate damp proof course or membrane.

1.5 A full Defence was delivered on behalf of the Defendants on the 11th March 2022 which is in effect a complete traverse of the allegations made in the Plaintiff’s Equity Civil Bill.

PRECIS OF EVIDENCE

2. Evidence of the Plaintiff

2.1 The Plaintiff gave evidence of ownership of the property at xx, Dublin X together with her husband. They occupied the property for many years and had a good relationship with the Defendants prior to the commencement of the building works. The Plaintiff stated that the First named Defendant had made it clear to her husband, David Christie, that if there were any problems with the construction works, the Plaintiff’s husband should contact the Defendants'

builder. She stated the use to which she and her husband had put the garage space prior to the significant dampness and efflorescence that occurred after the Defendants' building works had commenced. The garage was initially a home office and subsequently a fitness room, but the Plaintiff and her husband were now unable to use it as such. The dampness and efflorescence continued along the entire garage wall and into the side passage wall adjacent to the utility room for its full length.

2.2 The Plaintiff stated that she discovered the initial damage to a portion of their garden wall which is situate on the xx side in or about the 9th July 2021 on her return from work. She recalls seeing the wall pushed over and damaged vertically and horizontally above the path. She stated that despite the damage, the builders were not present on the site at yy they had left for the evening. She gave evidence of her efforts made and the efforts of her husband following the initial damage in July 2021 to agree the repair of the garden wall. She stated that she thought that this had been agreed and the reconstruction works were to take two to three days only. She then stated that on the bank holiday weekend being the 31st July 2021, she noticed the extent of the damage to her home, and underneath her garden path by the removal of its entire foundation for its entire length right up to the side of her kitchen extension foundations, the damage to the patio of the rear of her property at xx and the considerable damage to the hedge and its roots and the complete removal of the foundation laid under her pathway together with damage to the render on her kitchen wall and back door of her home. She stated she was extremely upset and shocked by this. She became concerned that the hoarding erected by the Defendants had not been removed as agreed and it was only then upon her investigation that she then discovered the extent of the damage. The Plaintiff and her husband were due to go on holidays that weekend but had to cancel the holiday to deal with the extensive damage to the property as they could not go away and leave their property in such a damaged condition which no doubt would continue in their absence.

2.3 The Plaintiff gave evidence that she spoke to the builder, Tony, on following the Tuesday morning after the bank holiday weekend and told him that she had seen the damage that he and his colleagues had caused to her property and that he was not to trespass on her property any further. Despite this, Tony then returned into her back garden of xx without permission and retrieved part of the hoarding that the Plaintiff's husband had had removed and fixed it back in place.

2.4 The Plaintiff then gave evidence of the efforts made by herself and her husband between August 2021 and November 2021 to resolve the issues caused by the Defendants, but the Defendants kept changing their position (which is clear from the correspondence).

2.5 The Plaintiff gave evidence as to the cost of the repairs required, including the cost of removing and replacing the damaged hedge, which was in the region of €10,000.00 together with the professional fees incurred including legal fees and architect's fees. The Plaintiff then gave evidence of further damage caused to their home by the builders dropping mortar and concrete into xx when they eventually constructed the gable wall of the extension at yy causing further damage to the Plaintiff’s property including the Plaintiff's sidewall to her kitchen extension and the entrance door to her utility room. Staining was caused to the driveway at the front of the Plaintiff's property, on three occasions, which was caused by plaster and cement leaking and escaping from underneath the hoarding to the front of the Defendant's property due to the carelessness of the Defendants' builders. She gave evidence of the damage to their property and boundary hedge, which they had carefully maintained since they purchased their property at xx in 2003.

2.6 The Plaintiff gave evidence of discovering the efflorescence prior to Christmas 2021 which further damage was notified to the Defendants'

Solicitor. She gave evidence of the upset caused by the deterioration of the relationship between the neighbours, which was caused by the First and Third named Defendants' name calling, harassment and intimidation, which commenced when they moved back into the property, which continued. The Third named Defendant's husband also engaged in bullying behaviour and harassment. The Plaintiff confirmed that none of the Defendants or Mr Connolly had contacted her or her husband regarding the damage caused by their builders. The Plaintiff had called for the removal of the hoarding on several occasions however the Defendants refused to do so claiming that it was unsafe to do so because of the unstable nature of the path on her property that their builders had damaged.

2.7 The Plaintiff engaged the services of Mr. Martin Ryan, and he attended as agreed to supervise the remedial works to be carried out.

2.8 The Plaintiff was cross-examined on whether she had damp readings prior to the complaint of damp damage to the walls of the garage and internal passage following the Defendants' works. The Plaintiff confirmed that the property was not damp prior to November/December 2021. She also confirmed that her husband had a severe respiratory condition, and they could not live in a damp house due to his illness. The Plaintiff stated that Mr. Martin Ryan had surveyed the property prior to their purchase and there was absolutely no damp as they would not have purchased a home that was damp. The Plaintiff was extensively cross-examined in particular on the correspondence between the parties' Solicitors after the further damage was caused to xx in August 2021 and prior to the institution of the proceedings in November 2021, when the Defendants refused after initially agreeing to undertake the repairs to her home. The Plaintiff clearly stated that the issue of the proceedings was a last resort for her and that the last place she wanted to be was in Court. The Plaintiff made it clear that it was always her position that she wanted the trespass to stop and the garden wall to be reinstated and the damage repaired to the back door, the render and the patio and the hedge to be remedied and once this was done, the Defendants could do whatever they wanted within the curtilage of their own property. The Plaintiff stated that her position had not changed but the Defendants' position had constantly changed through the correspondence arising from their Solicitors.

2.9 The Plaintiff was also cross-examined regarding the issue of mediation and her reluctance to enter into mediation with the Defendants and she confirmed that mediation did in fact take place. This was following extensive negotiations between the parties prior to the issue of proceedings.

The Plaintiff was asked had she made a complaint to the Planning Authority. She confirmed that she had not but was aware of the complaint.

On cross-examination, the Plaintiffs evidence in chief was not challenged.

3. Evidence of David Christie

3.1 David Christie, the Plaintiff’s husband, then gave evidence. He referred to his contemporaneous photo diary on his mobile telephone in respect of the works being undertaken by the Defendants following the damage caused to their home by the July works. He stated that despite the clear assertion on behalf of the Defendants that the damp proof membrane (DPM) was laid below the floor slab and underneath the steel reinforcement rebar on top of the hardcore, that no such DPM was in place. The Defendants having clearly and categorically advising the Court that the DPM was laid on top of the Hardcore underneath the steel reinforcement bar and under the ground-floor slab. (This was in reference to the Defendants' Senior Counsel categorically confirming to the court when asked by the learning judge, that the DPM was on top of the hardcore and below the steel reinforcement/rebar and below the ground floor slab).

3.2 Mr. Christie gave evidence of his initial interaction with the Defendants'

builder and the attitude of the builder at the time, which continued throughout the building works. He also gave evidence of the upset caused to him by the damage to his home. He gave evidence of the extensive damage caused to their property, including the subsequent damp damage to the garage and internal passageway which ran the entire length of the wall from the front door of the garage to the rear door of his house. He gave evidence of the damage caused to the boundary hedge by the Defendants' builders, including the cutting of the roots and the digging of a drain/trench directly along the hedge and also the Defendants' builder cutting the substance of the hedge prior to further building works in respect of a patio construction at yy.

He gave evidence that the Defendants' builder had placed a mini digger on their pathway when excavating under their pathway and he also gave evidence of the damage caused to their patio at the rear of their home by the displacement and removal of the foundation under the pathway which caused the patio to move at the rear of their home. Mr Christie also stated that he had to engage a builder to erect a hoarding on the x x -side following the removal of the permanence type hoarding corrected on his property causing trespass and the failure of the Defendants to reinstate the hoarding at yy, as had been agreed, in order to protect their home from further damage and for security reasons.

He confirmed that despite the Defendants' agreement to put back the hoarding and install it on yy side, they refused to do so and instead installed a security fence which could easily be removed, and which posed a security risk and privacy issue. Mr. Christie gave evidence that when the issue was raised by himself and Mr. Martin Ryan that the Defendants' builder stated aggressively that he did not take instructions from Mr. Ryan or Mr. Christie. Mr. Christie gave evidence of the conduct of the Defendants and Mr. Connolly following their return to the property at y y Mr.

Christie gave evidence that he was spat at and verbally abused by the First Named Defendant, had a car driven at him at speed by the Third Named Defendant and was regularly subjected to a campaign of verbal abuse, harassment, intimidation and was also subjected to watching and besetting by the First and Third Named Defendants and Mr. John Connolly, the husband of the Third Named Defendant. Mr. Christie gave evidence that he was satisfied that his photographs were correct and that the DPM was not where the Defendants' Architect and Builder claimed that it was.

Mr. Christie gave evidence that he was certain that the DPM was not where it was claimed by the Defendants and their Architect and Builder. Mr. Christie stated that the standard of building was extremely poor, which surprised him as the Builder, Mr. Cashin, claimed that he was a qualified Structural Engineer with over 23 yearsexperience. Mr. Christie said that he was satisfied that Mr. Maguire had certified that the works complied with Building Regulations without having actually seen the work being carried out or having inspected the site. Mr. Christie stated further that Mr.

Maguire, the architect, had made a dreadful mistake of relying on Mr. Cashin's confirmation to him as to where the DPM actually was. Mr. Christie also gave evidence of his severe health issues and the negative and serious consequences the damage caused to his home would have for him and his wife who was also an asthmatic.

3.3 It was put to Mr. Christie in cross-examination by Mr Marray BL that he was a trained litigator with many years-experience and that he simply wanted to issue proceedings and go to court against his neighbours rather than speak to them about it and try to resolve this as neighbours. Mr. Christie stated that the Defendants had moved out of the property and out of the area as they would not put up with the disruption, noise and dirt emanating from their building works. Mr. Christie stated that it was made quite clear to him by the First Named Defendant that if there were any problems in relation to the building works at yy, that Mr. Christie could take matters up directly with the builder and that he would give Mr. Christie's telephone number to the builder. Mr. Christie said that he thought that this was odd and queried the First Named Defendant as to why he would need to speak to his builder as long as the building works were carried out and conducted entirely within the curtilage of yy. Mr. Christie stated that because the defendants had moved out of the property and out of the area and made it clear that if there were any problems that he should speak to the builder, that it was not possible to speak directly to the Defendants. Mr. Christie then stated that the Defendants from the locality during the building works which were very disruptive and continued to conduct themselves in that manner as the First and Second Named Defendants were not in court for the entire of the trial and the Third Named Defendant was there sporadically and it was not intended that they would give evidence. It was also put to Mr. Christie by Mr. Marray BL, that the First Named Defendant would deny that he spat at Mr. Christie.

Mr. Christie reminded Mr. Marray that his client was not in court and that there were several incidents involving the First Named Defendant, the Third Named Defendant and her husband, John Connolly which were carefully recorded. Mr. Christie also stated in cross-examination that he did not refer the matter to An Garda Síochána as he did not want to make matters any worse than they were.

3.4 Certain matters were put to Mr. Christie in cross-examination on the basis that the Defendants' builder, Mr. Cashin, would give evidence at a later stage as to the exact whereabouts of the DPM and as to his qualifications as a qualified Structural Engineer with over 23 years-experience. However, as it transpired, Mr. Cashin failed to give any evidence at all in the trial and was not present in court at the end of the trial. It was put to David Christie that the DPM was visible in the photographs and Mr. Christie categorically confirmed that it was not. When cross examined about mitigation of loss, Mr. Christie said that no works had been undertaken to xx given the attitude of the Defendants in the event that the court wish to inspect the locus. Mr.

Christie stated that despite the Defendants' original acknowledgement of the damage, the Defendants then subsequently denied same. Furthermore, Mr. Christie gave evidence that he could not mitigate his loss in respect of the failure of the Defendants to install the DPM in the correct place as this would involve work being carried out on the property of the Defendants at yy, which was not possible.

3.5 Mr. Christie also gave evidence of the foundation constructed by the Defendants' contractor. This was a clear indication that the Defendants had changed their plan regarding the foundation for the extension wall. Mr.

Christie also gave evidence of his view that Josh Maguire's drawing, dated 22nd November 2023, was incorrect and was prepared by him sometime later and long after the work had been completed and covered up and without his actual knowledge and was being incorrectly relied upon by the Defendants. Mr. Christie stated in his evidence that Mr. Maguire had solely relied upon what he was told by the Builder in relation to the make-up of the floor without having seen it himself. Mr. Christie gave evidence that it was his view that the extension was not constructed as initially designed or intended due to having been forced to remove the deeper and wider trespassing foundation from his property.

4. Evidence of Mr. Brian Sheppard

4.1 Mr. Brian Sheppard, Quantity Surveyor, gave evidence of his qualifications and his inspection of the damage to the Plaintiff’s home. He gave evidence of his estimate of the costs of repairs. On cross-examination Mr. Sheppard confirmed the only bill given to Mr. Sheppard by the Plaintiff related to the costs of erecting a hoarding on the Plaintiff’s property on the weekend of 12th November 2021. Mr. Sheppard's evidence was that the quantum of the costs of remedial works to the Plaintiff’s property was in the region of €14,484.24, which does not include the costs of removing and reinstating the damaged hedge or the costs of the works needed to cure the dampness in the Plaintiff’s home. Mr. Sheppard was not challenged on crossexamination. He was only cross-examined on the section of the report dealing with the efflorescence on the damp wall in the Plaintiff’s home, his report having been prepared on the basis that the damp damage would be cured by works to the Defendants' property.

5. Evidence of Mr. Alistair Goodwin

5.1 Mr. Goodwin gave evidence of his qualifications and experience. He explained that he had visited the site at xx on four separate occasions to inspect the party wall between xx and y y in relation to the issue of dampness in the party wall. Mr. Goodwin explained how the dampness presented in terms of the moisture meter readings and the efflorescence that was present on the wall on the xx side. He had noted that the levels of moisture arising from the meter readings and the amount of efflorescence were consistent across each of his four visits. He stated that damp readings above 16% were considered high, dangerous and would be detrimental to the structure and users of the building. He described how the levels of efflorescence that he found did not sporadically occur and would most likely have occurred when moisture passed through the wall containing dissolved salt deposits, these salts and the moisture dry out. He was asked could the wall always have been damp. He stated that the patterns of efflorescence would not have presented in the manner that they did, given that they were not there before.

5.2 Mr. Goodwin confirmed the length of the party wall on the Plaintiff's side at xx was 7.2 metres from the front door to the back door. On cross-examination he was asked if the damp could have been caused by rainwater coming in from the garage door as claimed by the Defendants' independent expert, Mr. Shane Santry. Mr. Goodwin confirmed that under no circumstances could the damp and efflorescence have caused by rainwater. He further stated that the entire ground floor of the Plaintiff's garage and utility room would be flooded but that still would not cause the efflorescence and there was no evidence whatsoever of flooding caused by rainwater.

6. Evidence of Mr. Martin Ryan

6.1 Having been sworn in, Martin Ryan gave evidence of his qualifications and experience. He gave evidence of having surveyed the property at xx prior to the purchase by the Plaintiff and Mr. Christie. His evidence included a record of the meetings and correspondence with Josh Maguire and subsequently Shane Santry. Mr. Ryan confirmed being contacted by the Mr.

Christie in early July 2021 to inspect the initial damage. He confirmed that he first met Josh Maguire at xx on Friday morning, 16th July 2021, three days after he had witnessed the damage to the garden wall at the rear of xx. Mr.

Ryan and Mr. Maguire entered the property through the garage and side passage and then viewed the damaged wall and the garden at the rear. He confirmed they did not enter yy. He confirmed that Mr. Maguire agreed to the reconstruction of the garden wall above the concrete path at ground level. He confirmed at that stage, the ground at yy had not been excavated and they were walking back and forth on the footpath and in the rear garden at the rear of xx. He confirmed their discussion was solely on the replacement of the damage wall above ground level. As the replacement garden wall was to be an identical replica of the existing wall above path level, there was no discussion on any need to replace the existing rising wall and its foundation. Mr. Ryan confirmed that the garden wall and the next leaf were solely and completely on the xx side of the boundary line. Mr.

Ryan stated that Josh Maguire agreed to rebuild the damaged wall. His evidence was that they both agreed the work to replace the damaged garden wall should take 2-3 days at most in case weather issues arose as part of the wall was now unstable due to impact damage.

6.2 In cross-examination, it was put to Mr. Ryan that he had instructed the contractor to remove the rising walls and foundations to the garden wall and Mr. Ryan confirmed that this not correct and was untrue. Mr. Ryan confirmed that at no time did he ever instruct the builder to remove the existing foundations and rising walls or to construct foundations or rising.

Mr. Ryan stated that Mr. Josh Maguire was the architect with overall responsibility for the design, construction and certification of the development at xx. Mr. Ryan stated that in addition, Mr. Paul Cuddy, PCA Engineers Ltd., was the appointed structural engineer for the design and construction of all structural elements engaged by the Defendants. Mr. Ryan confirmed that he was not at all involved in the construction of the development at xx and the idea that he would instruct the contractor was absurd. Mr. Ryan also confirmed that the builder, Mr. Cashin, had stated that he did not take instructions from Mr. Ryan. Mr. Ryan confirmed that he had met the contractor on site on 20th July 2021, at which stage the ground in yy had been dug up.

The rising walls and foundations for the garden wall of xx were still in place and undisturbed and that his discussion with Mr. Cashin was solely in respect of the need for this to be underpinned or protected. Mr. Ryan said that his principal concern was to ensure the garden wall was rebuilt and the hoarding removed as a matter of urgency. He was told that the contractor was awaiting the structural engineer's requirements for the foundation arrangement. Mr.

Ryan confirmed that the details of the rebuilding of the Plaintiff's wall were contained in the booklet of photographs and sketches of the contractor.

6.3 Mr. Martin Ryan gave evidence that from the August Bank Holiday weekend (2021), that he became convinced that the Defendants, or their agents, had laid the foundation for the new extension and gable wall of that extension at yy under part of xx given the works by then undertaken by the contractor. Mr.

Ryan stated that Mr. Maguire generally agreed to everything that was required to reinstate the Plaintiff's home but subsequently had queries or concerns as to why nothing that was previously agreed could actually be carried out. Mr. Ryan gave evidence that it was his view that Mr. Maguire obfuscated and prevaricated on every matter previously agreed from August to November 2021 and it became clear that the object was to insert the foundation as had been done at the end of July 2021. By this time, the deeper and wider foundation had been laid across the party line and under the footpath of x x which due to the extensive excavation by the Defendants' contractor had been undermined and made hazardous. Mr. Ryan gave evidence that all trust in Mr. Maguire carrying out the works that had been originally agreed had been lost and that he made a complaint to Dublin City Council Enforcement Section, which thereby caused the foundation trespass to be most reluctantly resolved by the saw-cutting of the foundation and its removal which took in excess of 3 months to resolve.

6.4 Mr. Ryan gave evidence of his inspection of the property and the efflorescence on the wall in the garage and internal passage of xx and the cause of same, which he believed was damp coming from the yy side of the wall. He confirmed that it was not caused by rainwater, as suggested by the Defendants. He dealt with the relevant Building Regulations and the obligations on the Defendants to ensure no damage was caused to the Plaintiff’s home. Under cross examination, Mr. Ryan dealt with the stepped nature of the houses on X Road and that xx was slightly lower than yy but that the topography of the properties had nothing to do with the dampness.

Mr. Ryan stated that there was no damp prior to the works carried out by the Defendants.

6.5 Mr. Ryan gave evidence of his research regarding the costs of remedial works to the damp wall on the Plaintiff’s property and that cheapest way but not the idealist way would cost approximately €10,000.00. He said that the best solution to stop the dampness was for further works to be carried out in yy as otherwise the damp issue would simply be masked and hidden and would reoccur. This would involve the removal of a strip of the ground floor slab for it’s entire length and a DPM to be installed properly as it should have been in the first place.

6.6 Mr. Ryan gave evidence of his meeting with Josh Maguire and subsequently with Mr. Shane Santry. He confirmed that a meeting took place between Mr. Shane Santry, Mr. Goodwin and himself at xx. This was a short meeting that lasted less than 15 minutes. Mr. Ryan confirmed that Mr. Santry did not perform any tests or take any readings. Mr. Ryan stated that Mr. Santry stated to him and Mr. Goodwin "The damp proof membrane has clearly failed".

6.7 In cross-examination, Mr. Martin Ryan's qualifications were put in issue, and it was stated by Mr. Harding SC that he had committed an offence under the Building Regulations which was denied by Mr. Ryan. Mr. Ryan was then crossexamined as to whether he was a member of the RIAI. Mr.

Ryan confirmed that he had been for many years but that he was in the process of retiring and that he did not renew his membership of the RIAI and that he was not required to do so by law. On the second day of his cross-examination, Mr. Ryan offered to show his qualifications to the Court, but the Defendants refused to allow Mr. Ryan to produce his professional qualifications including his degree from Trinity College Dublin and his Diploma from Bolton Street. It was put to Mr. Ryan that he used the title "Architect" and Mr. Ryan responded that even when he was a member of the RIAI that he never used the title "Architect" but that he was a qualified architect and had the relevant professional qualifications as prescribed in Irish law. He was extensively cross-examined on the role of an expert witness and the lack of the declaration in his report that he was acting as an expert witness. Mr. Ryan stated to Mr. Harding SC that he was sworn in and, on his oath, and that he was fully aware of his obligations and duties to the court. It was submitted by the Defendants' Senior Counsel that Mr. Ryan could not be an expert witness. Mr. Ryan was also crossexamined on the basis of certain matters that the contractor would give in evidence, and it subsequently transpired that the contractor failed to give evidence.

That completed the Plaintiffs evidence.

7. Evidence of Josh Maguire

7.1 After being sworn in, Mr. Josh Maguire gave evidence of his qualifications and experience. He then gave evidence of the advice which he said he gave to the Defendants regarding dialogue with their neighbours prior to commencing works. He referred to the booklet for Planning documentation and confirmed that he had lodged the Planning application in July 2019 and that he had prepared detailed drawings and specifications. He said that the boundary line was not a Planning matter.

He gave details of the 2019 boundary between yy and xx and confirmed that the demolition of the 9-inch party wall as part of the existing extension was envisaged. He gave evidence that he advised his clients that the party line required agreement between homeowners. He stated that the works carried out at yy were executed in accordance with the drawings he prepared. He stated that the Planning Permission did not contain any condition regarding trees and horticulture other than trees on the public street. He gave evidence of obtaining Planning Permission and going to tender and engaging the contractor. It was clear that at this stage Mr. Josh Maguire was of the view that a Damp Proof Membrane had been installed in the correct position under the wire reinforcement bars, on top of the hard core and underneath the ground floor slab in contradiction of the photographs taken by David Christie, which is not in fact the true, accurate and correct position.

7.2 Regarding the meeting on 16th July 2021 at xx, Mr. Maguire confirmed the render on the wall was damaged and falling off. He stated that the Plaintiff had asked for her wall to be rebuilt and that the Defendants were reaching out to satisfy the Plaintiff.

7.3 At this stage, an issue arose with regard to the fact that certain evidence was put to being led by the Defendants' witness that had not been put to the Plaintiff or her witnesses.

7.4 Then, submissions were made as to whether the Court would direct that an independent architect would conduct a damp reading at xx to ascertain the position of the DPC in the party wall and conduct a core sample on the floor at yy to see the composition of the floor and the placement of the DPM, given that these issues were in dispute. The Court made this direction.

7.5 Subsequently, Mr. Dan Daye, Architect, was nominated by the RIAI to act as an independent consultant to conduct a damp reading and carry out a core sample on the floor at yy. He attended at yy on the 22nd January 2024. Despite the fact that he was an independent consultant, and despite the fact that none of the parties’ experts were to be present, he was met by Mr. Josh Maguire (in the absence of the Plaintiff’s architect) for approximate one hour wherein Mr.

Daye confirmed that Mr. Maguire had discussed matters with him and had given him certain documents, including the drawing prepared by Mr. Maguire at the commencement of the trial and dated the 22nd of November, 2023 which purported to show the makeup of the floor at yy. As a result of this, Mr. Daye's independence was compromised and when the trial was due to recommence on the 6th February 2024, it could not so commence. Ultimately, Mr. Paul Keenan was appointed as an independent expert. Mr. Keenan's evidence was interposed on the 23rd July 2024.

8. Evidence of Mr. Paul Keenan

8.1 Mr. Keenan gave evidence of the results of the three tests undertaken by him on the 14th May 2024. He confirmed that his first visit to xx and yy was on the 13th March 2023 and he oversaw the tests on the 14th May 2023 and the report contained his findings. He confirmed that he took damp readings and confirmed that these were taken at the locations where Mr.

Goodwin had also taken his readings. He confirmed the level of damp in the property at xx and between 17% and 38% at 150mm above floor level and 14%-25% at 300mm above floor level. He also stated that anything above 16% was damp and gave evidence of the resulting damage which such levels of dampness could cause. He did not comment on the efflorescence as he was not an expert in that area.

8.2 Mr. Keenan confirmed that the DPC in the party wall was 250mm above the garage floor at xx. Mr. Keenan confirmed that the core sample was taken at yy and that the DPM was in the wrong place. It was in between layer 7, being concrete and some wire mesh which broke up and indicated poor quality and level 5 50mm of concrete slab. He confirmed that the DPM in the sample had a straight edge line furthest from the wall. There was no evidence of overlapping of an adjoining sheet of DPM. He confirmed that only layer 3, the high-density insulation layer was broken out towards the wall and confirmed that the DPM appeared to be against the block wall at that level.

He did state that the DPM was not opened to establish this.

9. Resumed Evidence of Josh Maguire

9.1 After the Court heard from Mr. Keenan, Josh Maguire resumed his evidence in chief. He was taken through the e-mail exchange between Mr. Martin Ryan and himself. He gave evidence that the DPC was in the wall at the level where he always knew it was. He gave evidence that Mr. Ryan's findings and Mr.

Goodwin's findings were based on their wrong assumption of where the DPC was. He gave evidence that as a result, the Plaintiff’s property was always damp. He gave evidence that the DPM was below the DPC. He said so long as the DPM is below the DPC, there is no industry standard. He stated that the new construction does not introduce any moisture. On cross-examination, Mr.

Maguire confirmed photograph number 19 where he had drawn a red line on that photograph showing the DPC at the level below the path in xx for the entire length of the garage wall. Mr. Maguire confirmed on cross-examination that he had not seen the installation of the floor and was relying on what the contractor had told him. He confirmed that he had certified the construction pursuant to the Building Control Management System. When Mr. Maguire was asked for his records, which he is obliged to keep, he stated that he did not have any records and in particular, his inspection plan. He confirmed that he had not inspected the construction of the floor at yy. He also confirmed that the floor structure was not constructed in accordance with his drawing and design. He gave evidence that as far as he was concerned, there was implied consent to trespass and excavate the property of the Plaintiff at xx. When he was asked whether it was contained in the e-mails, he confirmed that it was not there. He also confirmed that he was not present at the meeting between Mr. Martin Ryan and the contractor, which is confirmed in one of his emails and is evidenced by the contractor's sketch. Mr. Maguire confirmed in cross-examination that it was necessary for the Defendants to excavate and construct a deeper and wider foundation to support the wall to the extension on yy. He maintained that there was no breach of Planning. It was put to him that it was the complaint made to the Planning Authority Enforcement Section that was the catalyst for the removal of the trespassing foundation so that when he replied to the Planning Department, the foundation had in fact been removed at that time. It was put to

Mr. Maguire that as per Mr. Keenan's calculations, the DPC was higher than the DPM and Mr. Maguire agreed having considered the calculations.

10. Evidence of Mr. Shane Santry

10.1 Shane Santry was interposed by the Defendants. He confirmed his qualifications and experience. He confirmed that he prepared an up-to-date report having received the report of Mr. Paul Keenan. He gave evidence of the topography of the street and that he examined both properties. He gave evidence that it was clear the DPM was in the floor and the DPC in the wall and this fully enveloped the development and that the floor was fully insulated so moisture could not pass. On cross-examination, Mr. Santry stated that the radon barrier in the Defendants' premises was now performing as the operative DPM. He suggested that the Plaintiff’s property was always damp. It was then put to Mr. Santry that he had changed parts of his initial report in his subsequent and later report having read the report of Mr. Keenan. He confirmed that he did not carry out any tests or readings or any investigations in respect of the Plaintiff’s property at xx.

11. Evidence of Mr. John Connolly

11.1 Mr. Connolly was sworn and gave his details and occupation. He confirmed that he is the spouse of the Third named Defendant, that was not a party to the proceedings and did not own the property at yy. Mr. Connolly gave evidence that he began living at y y in June 2022 following the completion of the extensive works to the home of his in-laws, the First and Second named Defendants. He stated that prior to that, himself and his family lived approximately 10 minutes away. He confirmed that he met with the Plaintiff and her husband when the Planning application was lodged. He also confirmed the email thread with the Plaintiff regarding her concerns of trespass, the boundary, being overlooked and the retention and preservation of the hedge between the properties. He gave evidence of retaining the Architect, Mr.

Josh Maguire and then subsequently retaining the contractor, Mr. David Cashin. He stated that he was shocked when he received the letter of August 2021 concerning the claims of the Plaintiff that the Defendants' contractors had damaged her property. He then stated that he handed the matter to his retained professionals and that it was for them to deal with it.

11.2 On crossexamination, Mr. Connolly was asked about the initial damage on 9th July 2021 to the Plaintiff’s property at xx. Mr. Connolly stated that Mr.

Josh Maguire was dealing with this, and he was not involved. He said that Josh Maguire told him to do whatever the Plaintiff wanted. He confirmed that neither himself nor the Defendants had approached the Plaintiff or Mr.

Christie at any time regarding any of the damage caused to their home since July 2021. Mr. Connolly stated that he had retained professionals and day were dealing with it. Mr. Connolly maintained his position that the Defendants had not caused any damage to the property at xx and that he did not know why they were in Court.

That completed the evidence of the parties.

12. Submissions on the Evidence of Mr Martin Ryan

12.1 It was put to Mr. Martin Ryan in cross-examination by Counsel for the Defendants that he was committing an offence by calling himself an architect when he was not registered with the RIAI. It was also submitted that he could not act as an expert witness in circumstances where his report did not include the usual declaration of independence.

12.2 Contrary to what was put to Mr. Ryan in cross-examination, in order for Mr. Ryan to commit an offence, he would have to be prosecuted by a Board of the Royal Institute of Architects in Ireland pursuant to section 18 of the Building Control Act, 2007, for practising using the term/title "architect ...with intent to deceive" or make a ''false declaration or misrepresentation". Mr. Ryan was never prosecuted at any time by a Board of the Royal Institute of Architects in Ireland. No evidence whatsoever of any such matters were put to Mr. Ryan in crossexamination and no evidence was led by the defence in that regard. It is clear from the Royal Institute of Architects in Ireland's website that "it is not compulsory to be a member of the RIAI" notwithstanding that he was a member of the RIAI from 1980/1981 up until the mid-2000's. There is nothing to prevent Mr.

Ryan from acting in his professional capacity and there is no obligation upon him to re-apply to again become a member of the RIAI which he could do as he holds the prescribed professional qualifications in law. The RIAI confirms on its website that members and fellows of the RIAI who have retired from practice and are no longer registered may reasonably describe themselves as architects, so long as they do not practice or carry on business using the title "architect" or use the title in a manner which might imply that they are registered. They may also continue to use the affixes MRIAI and FRIAI.

12.3 Mr. Ryan is a retired architect with an extensive reputation and experience in all types of construction including schools, medical facilities, houses and in home renovations. Mr. Ryan holds the professional qualifications of B Arch Sc from Trinity College Dublin, which is a 5-year BArch (Architecture)

Honours Degree award that is accredited by the RIAI and prescribed in Irish law. Mr. Ryan was also awarded a Dip Arch- Bolton Street. This qualification deals with the relationship between design and technology and focuses on design concepts and design development using an interdisciplinary design approach.

12.4 The Defendants' expert, Mr. Josh Maguire holds identical professional qualifications to Martin Ryan and Mr. Shane Santry, the Defendants'

independent expert holds the equivalent qualifications which he may have achieved from UCD.

12.5 Mr. Ryan was engaged by the Plaintiff and Mr. Christie in circumstances where he had initially inspected the property on their behalf when it was purchased.

In those circumstances, it was clear that he was in a position to give evidence of the state of the party wall and the condition of the garage of xx prior to the commencement of the works by the Defendants. The majority of his evidence was factual in nature and related to his findings "on the ground' following his inspection of the property at various times. He also gave extensive evidence of his interactions with Mr. Josh Maguire, Mr. Shane Santry and the Defendants'

builder, Mr. Cashin. He did so in a forthright and honest manner. The fact that he is no longer registered with the RIAI or that his report did not contain a statutory declaration of an independent witness does not affect the import this Court should have in dealing with his evidence. In those circumstances, the presence or absence of the declaration in his report has no relevance. There is no such declaration in Mr. Maguire's report which was solely relied upon by Mr. Santry. Mr. Santry conducted no tests whatsoever to support his theory and relied solely on Mr. Maguire's report. Mr. Ryan was a former member of the RIAI with many years-experience and holds the professional qualifications as is prescribed in Irish law and which are the same professional qualifications as held by the Defendants' experts.

12.6 The only opinion evidence given by Mr. Ryan related to the cause of the damp and efflorescence on the garage wall and internal passage wall of the Plaintiff’s property. It is submitted that Mr. Ryan is entitled to give this evidence having regard to his previous familiarity with the property following his inspection when the property was purchased by the Plaintiff and Mr. Christie. Mr. Ryan holds the relevant professional qualifications as are prescribed in Irish law and has the relevant experience and was a former member of the RIAI for many years. Mr. Ryan is entitled and capable of giving professional evidence in relation to this case and no evidence to the contrary has been submitted to the court by the Defendants. He is not acting as an independent witness as he was involved in the negotiations between the parties regarding the remedial works to be carried out. In the same way, the evidence of Mr. Maguire is not independent as he is clearly representing the interests of the Defendants.

However, Mr. Maguire has a vested interest in the outcome of the proceedings as he was the Assigned Certifier of the works pursuant to his registration of the building project with the Building Control Management System Registration Number CNxxxxx registered on the 4th of June 2021. Mr. Maguire confirmed in cross-examination that he had no records pertaining to the works including an inspection plan and an implemented inspection plan. These are documents and records that are actually required by the Building Control Management System. It is highly unlikely that Mr. Maguire has no records as he stated in cross-examination as he would have same within his possession or procurement as he would have or certainly should have uploaded those records including his final Certificate of Compliance on Completion, which is signed by him and the builder, Mr. Cashin. Under cross-examination, Mr. Maguire gave evidence that he relied upon what he was told by the builder and that he had not seen the actual construction of the floor and that his drawing dated 22nd of November 2023 was incorrect and his design was not followed by the builder. This is clearly at odds with Mr. Maguire's Certificate of Compliance on Completion, as assigned certifier, which Certificate is provided pursuant to the inspection plan drawn up and having regard to the Code of Practice for inspecting and certifying building works. Mr. Maguire did not inspect the construction of the floor, nor did he see it but provided a Certificate of Compliance on Completion and confirmed in cross-examination that he had no records.

13. Submissions on the Evidence of Mr. Paul Keenan

13.1 Mr. Keenan was appointed by this Court as an independent expert to carry out core samples on the floor of yy and his report speaks for itself. Mr. Keenan had found that the damp proof membrane was not laid on top of the hard-core under the steel reinforcement bars and under the ground floor slab. The damp proof membrane was not carried up from the hardcore level, as had been maintained by the Defendants (in particular the initial report of Mr. Santry) or the drawing prepared by Mr. Maguire prior to the commencement of the trial and as was categorically confirmed to the court by Mr. Harding S.C. When Mr. Santry returned to give evidence, he had to admit that there was no DPM carried up from the hardcore level and that the DPM was at an unexpected upper level. He also had to admit this unexpected level had gaps and no confirmed overlap in its individual sheets or with the wall DPC in the party wall. He then stated that the "operative DPM' was the radon barrier in the floor. Mr. Keenan had already found the radon barrier (now described by Mr. Santry as the "operative DPM")

occurs at a level 205mm below the top of the floor in yy (including 80mm screed on 125mm insulation). This confirms that the radon barrier occurs 20mm above the DPC and the party wall. The radon barrier cannot lap and seal to the wall the DPC as it is placed at a level in the floor that is 20mm above the wall DPC giving the clear route of water ingress for water above and below the found DPC in the party wall. Furthermore, the floor concrete upon which the radon barrier has been placed is of insufficient depth and laid on a further layer of concrete, which Mr. Keenan has confirmed in his report to be substandard and breaking up. consisted of some loose steel mesh and concrete. Mr. Keenan confirmed that the concrete broke up during coring indicating poor binding of the aggregate. This resulted in fractured core extract and the depth was established by measuring the hole depth.

13.2 The Defendants' witnesses have tried to maintain that there is no building regulation requiring a party to prevent the passage of moisture to a neighbouring property. This is untrue and incorrect. A party wall is a wall owned 50% by each neighbour. A party wall therefore remains a part of both properties. As such, it is a constituent part of the whole development and must be constructed in accordance with the building regulations.

13.3 It is submitted that the findings of Mr. Keenan are far worse than both sides expected or could have anticipated. Clearly the floor was not constructed as designed and the DPM is not where it should have been and where the court was told it was. It is submitted that it is clear that the damp enters the party wall as per the attached drawings and that the floor in yy has not been constructed in accordance with and does not comply with Building Regulations. It is submitted that this is what has caused the damage to the entire length of the garage wall and passage wall, which is clear from the fact that the damp only presented itself after the commencement of the building works and in particular the construction and laying of the floor at a higher level in yy.

14. Submission on the Evidence of Josh Maguire

14.1 Mr. Maguire gave evidence of matters not put to the Plaintiff or her witnesses and this was raised by Mr. Dwyer S. C. for the Plaintiff. He confirmed in his evidence that the drawing prepared by him and inserted by the Defendants into the booklet of photographs and sketches was incorrect. This is notwithstanding that this was the basis of the cross-examination of the Plaintiff's witnesses. He confirmed that in fact he did not see the floor being constructed and was relying upon what the contractor had told him. He gave evidence that the original floor did not exceed the height of the floor at xx as there was concrete with a suspended wooden floor above the concrete floor. Mr. Maguire confirmed that the floor at yy was not constructed in accordance with the plans or design that he prepared.

14.2 Mr. Maguire gave evidence of his advice to the Defendants to do whatever the neighbours required. However, his evidence was that they did not do what was necessary to remedy the damage to xx. On cross examination Mr. Maguire confirmed that for the Defendants' construction it was necessary to dig a deeper and wider foundation to support the new extension wall in yy and this was the first time that this was canvassed. When cross-examined Mr. Maguire confirmed that he had certified the construction works which at law makes him the assigned certifier pursuant to the Building Control Management System but when asked if he had his inspection plan/records Mr. Maguire said clearly that he did not have any records. This is notwithstanding the statutory obligation upon him to submit the same under the regulations. The works were clearly certified by the assigned certifier, Mr. Josh Maguire, Architect, when he knew that he did not inspect the installation of the construction, make up and pouring of the new floor and its damp proofing. Mr. Maguire confirmed under crossexamination that he relied upon what he was told by the builder, Mr. Cashin, who did not give evidence at the trial.

14.3 On cross-examination Mr. Josh Maguire confirmed that given the findings of Mr. Keenan's tests that it was clear that there was a difference between the level of the DPC and the DPM.

15. Submissions on the Evidence of Shane Santry

15.1 Shane Santry was put forward as an independent expert. However, he was retained by the Defendants. In his first report it is clear that he had inspected the property at yy and he confirmed that Mr. Maguire could certify the same namely the works undertaken at yy.

15.2 Shane Santry attended once only at the Plaintiff's property at xx and was there for less than 15 minutes. However, when cross examined, he could not put any time on his attendance/inspection of xx and seemed rather unsure. Ultimately, he said he did not know how long he was there. During his attendance at the Plaintiff's property, Mr. Santry did not conduct any tests, measurements or at the very least, take any damp meter readings. Mr.

Santry's first report is based solely on Mr. Maguire's report, dated the 31st of May, 2022, as is his second report and what he was told by either the Defendants or their agents. In his reports, Mr. Santry relied mainly on Mr.

Maguire's report and showed a significant departure from the essential requirements of objectivity, impartiality and independence. Mr. Santry made categorical statements about disputed issues of fact about which he had no independent knowledge. Mr. Santry was engaged by the Defendants'

solicitor Mr. Hennessy which is averred to in an affidavit of Mr. Hennessy and in correspondence emanating from him. Quite clearly, Mr. Santry is acting as a partisan witness clinging to a theory that the dampness caused to the Plaintiff's property was caused by the ingress of rainwater for a distance of 7.2 metres, without any tests undertaken by him or any corroborating evidence, however implausible that theory is and would exonerate the Defendants if the court might be persuaded to accept it.

15.3 In his updated report, Shane Santry made some slight changes on the basis of the findings of Mr. Keenan. However, he also made some changes to other parts of his report and when crossexamined did not give a satisfactory explanation for this. Mr. Santry gave evidence in relation to the topography of the properties which was only introduced in his subsequent report and after he heard the evidence of Mr. Josh Maguire which was not included in Mr. Maguire's report. Despite the dangerous levels of the damp meter readings contained in Mr. Keenan's report, Mr. Santry still relied on the findings contained in Mr. Maguire's report which was clearly out of date and extraordinarily and incorrectly found that the high level of dampness in the wall was not dangerous.

SUBMISSIONS ON BEHALF OF THE PLAINTIFF

INTRODUCTION

1. The above proceedings which issued in November 2021 relate to a situation which has arisen subsequent to work carried out by the Defendants to their dwelling house at yy, Dublin X. The hearing of same, which was both contentious and acrimonious took some 9 days.

2. The Plaintiff and the Defendants have been neighbours for approximately twenty years up until the works were carried out by the Defendants and no issues arise in respect of the Plaintiff’s property which shared a common party wall with the Defendant’s property as a result of extension works carried out sometime in the mid-1990's.

3. The Plaintiff applied for Planning Permission, Reference No. XX in June 2019. There was some consultation with the Plaintiff and her husband by John Connolly and essentially while the Plaintiff did make an observation in respect of the planning, an agreement was essentially made that the Defendants could carry out their development provided that the same did not in any way interfere or impinge on with the Plaintiffs property or cause any damage to same or to the wall between the respective gardens or the hedge between the respective gardens. In that context the Plaintiff was happy to allow the works to proceed and not to appeal any decision from Dublin City Council.

4. The decision to grant permission issued on the 18th of September 2019, and work commenced in or around June of 2021.

5. The difficulties inherent in the construction were extensively canvassed during the lengthy hearing of this matter, and the evidence of the witness as set out in short form hereafter. Somewhat surprisingly and notwithstanding that it was early and originally advised and notified to the Court on behalf of the Defendants herein that the builder, David Cashin, would give evidence, and Mr. Cashin was present in Court for the first 5[6] days of the hearing, he did not in fact give evidence. In that context, there is as such no detailed evidence for the Court as to how the construction of the premises proceeded, the Defendants were not present while the works were undertaken, the Architect, Mr. Josh Maguire, was not present for same, and much of the work that was done was not visible to the Plaintiff or David Christie in that a permanent type hoarding was erected by the Defendants in July of 2021, which was originally to be a temporary type hoarding intended only to be in situ for a matter of days remained in fact in situ for a number of months and until the 12th November of 2021, when the Defendants very reluctantly removed same.

6. Proceedings issued in November 2021 and the Plaintiff’s claim related to demolition and excavation work carried out by and on behalf of the Defendants commencing in June of 2021. That in real terms related to damage to and the removal of the rising wall and foundations of the Plaintiff’s garden wall and the trespass which was the maintenance in place of a hoarding and the installation of a much larger and deeper foundation partly under the Plaintiff’s property. It subsequently became apparent that there was significant dampness and efflorescence in part of the Plaintiff’s property which was notified to the Defendants and it was noted that in the Further Particulars of Loss and Damage in December 2022 and April of 2023, same was pleaded on the basis that there was no or no adequate or not properly installed damp proof course or membrane in respect of the works carried out to the Defendant’s property.

7. The items of trespass were extensively canvassed and are apparent from photographs annexed hereto, the Defence as filed on behalf of the Defendants does not deal with the issue as raised in the Civil Bill.

8. During the lengthy trial of the matter, the Defendants' evidence as to construction issues was largely the evidence of Mr. Josh Maguire, Architect. The First and Second Named Defendants were not present at all for the entire of the trial and did not give evidence and the Third Named Defendant was sporadically present in court and was not present in court at the end of the trial and did not give evidence. Mr.

Maguire, the Defendants' retained architect, gave evidence and eventually indicated that there was in effect an implied, rather than an explicit, consent/permission given by Martin Ryan on behalf of the Plaintiff, for the erection of the newer larger and deeper foundations essentially on the basis that the erection of a new wall to replace the damaged wall, would require the construction of wider and deeper foundations.

Mr. Maguire did not explain why it would require larger and deeper foundations but clearly it had been decided on behalf of the Defendants contrary to their express agreement with the Plaintiff, that they would be in effect build one large common foundation that would be used for the replacement garden wall being essentially a boundary wall /party wall, and also for the two storey extension of the Defendants property in place of the previous one storey extension.

9. Insofar as the damp is concerned the only evidence in relation to the existence or otherwise o f the damp is the evidence of the Plaintiff, David Christie and Martin Ryan. The Plaintiff and David Christie who have lived in the house for over twenty years gave evidence that save for a small area of damage immediately inside the garage door, the garage wall and the passage behind same which are now damp were not damp and showed no sign of dampness previously. Mr.

Martin Ryan gave evidence that he surveyed the house when the same was being purchased by the Plaintiff and David Christie and his clear recollection was that there was no damp in the wall and that he in fact tested the wall with the appropriate equipment and the same did not show dampness.

10. No prior examination was done of the Plaintiff’s property by or on behalf of the Defendants, which is a relatively normal and is a prudent course to follow where such extensive construction works are intended to be carried out to and at neighbouring properties. The Defendants have no evidence, good, bad or indifferent to deal with the issue of existing dampness, but in effect the evidence given on the Defendants' behalf, particularly that of Mr. Shane Santry, was that the wall must have been damp, albeit that he did not specify for how long, but the dampness was not caused by any works done or not done or not properly done to the Defendants property but was rather caused by rainwater being blown under the garage door of the Plaintiff’s property, pooling and thus causing damp to the floor. Mr. Santry's theory did not explain how the damp was new or apparently how rainwater could be blown for the entire 7.2 metre length, he also did he explain the incidence of efflorescence, which is normally associated with new dampness as opposed to existing dampness. Mr. Santry provided no test results to corroborate his theory, but his theory is completely incorrect and is far-fetched as that did not happen. In that context, the only certain evidence in relation to the dampness to the garage wall is that of the Plaintiff, David Christie and Martin Ryan to the effect that prior to the works being carried out to the Defendants property save for the very small portion of damage near the entrance of the garage, the garage wall and the wall of the passageway behind same were never damp and never showed any signs of dampness.

11. It is clear from his evidence that Mr. Maguire had an accurate view of the precise location of the dampproof course in the garage was located, he gave evidence which is at odds with that of Shane Santry that given the location of the dampproof course the wall "must" have been damp, albeit that he never saw any sign of dampness prior to the works being carried out, albeit that same was a party wall and it is to be presumed that if the wall on the Plaintiff’s side was damp that would have meant that notwithstanding the disparity and floor height of some 450mm that would have manifested itself on the Defendants’ side of the wall. Also, Mr. Maguire was present in the plaintiff's property and in fact in the passageway behind the garage in July 2021 with Mr. Martin Ryan when they inspected dampness above the doorway above the exit door in the passageway and there was no efflorescence presence on that wall at that time.

AGREEMENT

12. The essence of the Defence in relation to the issue of trespass and damage to the Plaintiff’s property given the undermining of the area underneath the garden path of xx is set out in paragraph 11 of the Defence which pleads that a joint foundation was "expressly sought" by Martin Ryan. During the trial in his evidence this was not accepted by Martin Ryan, the Plaintiff or Mr. Christie. Mr.

Josh Maguire on behalf of the Defendants in fact argued that replacement of the existing boundary wall, which was agreed, included an implicit consent to the construction of the wider deeper foundation straddling the boundary between the two properties because no reference was made by Mr. Maguire to "express consent" in this context. The view appears to be based on the exchange of emails in late July and August of 2021 and there certainly is no reference to the construction of wider and deeper foundations or the consent or agreement to any such construction of deeper and wider foundations. At all times, Mr. Ryan made it clear that he was talking about path level and that is abundantly clear from the emails.

13. Prior to any works commencing, the boundary between the two properties, as is apparent from the contemporaneous photographs (Photo 1 and 2) comprised the lean-to structure at the rear of yy, together with the one storey structure which was apparently a toilet in yy and then the block wall which stretches back to the hedge. During the initial works carried out to the Defendants property it is clear that the wall at the rear of the toilet was damaged (Photo 11), the damage done is effectively acknowledged by Mr. Maguire in his Report of Site Inspection made by him on the 16th July, 2021. Issues were clearly raised as to the condition of the wall, but the photograph, being photograph 11, clearly shows the wall as it then was the fact that it has been pushed out of vertical alignment, which logically could only have happened as a result of the demolition works at number yy. The damaged render of the wall is visible in these photographs.

14. The emails exchanged between Martin Ryan and Josh Maguire on the 18th and 19th July, 2021, are in this context relevant. In his email sent on the 18th of July at 11.37am to Josh Maguire, Martin Ryan outlines a proposal for the way forward. It is in effect a proposal for what is referred to as Option C, it is as follows: -

"1. Construct the new extension to the rear of yy totally within the curtilage at the site at yy, per the drawings for which Dublin City Council have granted planning permission. For the avoidance of doubt no part of the extension or its overhangs, finishes or services (the ground floor, first floor or roof level) should transgress the party line with xx. This includes no extract omissions into or over my client's property.

2. Reconstruct the damaged or existing 225mm solid concrete blockwork party wall with a new 100mm concrete block wall with concrete capping to match the height of the damaged wall being removed. The existing 100mm exposed concrete block garden wall at the rear of my client's passageway to be retained and increased in height by one block to match the height of the reconstructed garden block wall. The finished widths of the passagew a y in xx to be maintained at 820mm (as existing without render).

3. Both parties should be able to carry out their own respective development without interference to or reliance on support from any parts of the neighbouring development.

4. The existing hedge between xx and yy to be retained and protected during the course of the works as per the neighbour's agreement already in place. A meeting between Mr. John Connolly and my clients took place (on the instructions and on behalf of Michael and Anne Flanagan on behalf of his wife, Sinead Connolly) at the commencement of the planning phase that Mr. Connolly assured my client that there would be no interference with no encroachment on and no overhanging of my client's property. It was also agreed that the first-floor roof lights would be placed at the rear of the roof and not towards the party line to my client's property. Mr. Connolly further assured my clients and stated to them "the hedge will not be touched". My clients are expecting this agreement would be honoured and respected by both parties and it was noted that Mr. Dave Cashin (Contractor) was already familiar with and stated he was willing to abide by this agreement."

15. Mr. Maguire responded to that email on the 19th July at 13.14 by a further email to Martin Ryan who again responded at 19.06 on the same day. It is clear from the emails that the intention was that sections of the "party wall"

would be replaced, (i) being essentially the old wall to the lean-to extension to yy was to be replaced with a narrower and lighter wall i.e. 100mm block as opposed to 290mm block, and the other two were essentially to remain as was say clearly that one would be one block higher. It is essentially that the exchange of emails that Mr. Maguire relies upon to make the argument that there was an implicit, as opposed to the pleaded express agreement, to the erection of a new foundation. Quite to the contrary, no mention is made in any of the emails with regards to the replacement of existing foundations or the need to do so and certainly there is no reference to a new wider and significantly deeper foundation which straddles the boundaries between the two properties and thus, necessitating the excavation under the path and towards the extension of xx which was to serve as a joint foundation for both parties. It is submitted having regard to the express language of the email exchange that this is not and could never be a reasonable interpretation of same. In fact, what was clearly understood was that there would be a replacement of the demolished and/or damaged walls by new walls, which were to be erected on the existing foundation, and that the entirety of the extension works for yy would, as per the Planning Permission, and as per the original agreement with Mr. John Connolly (the Third Named Defendant's husband), be built entirely within the curtilage of yy, which would clearly also include independent foundations in respect of same. The reason for this was to facilitate similar works being carried out to xx at a later stage.

16. To facilitate works to be carried out and for "health and safety' the reasons a temporary hoarding was to be erected in xx by the builder, which was clearly anticipated to be in situ for only two to three days. That is abundantly clear from the email of Martin Ryan sent at 19.06 on the 19th

July, 2021, contrary to the somewhat surprising and entirely unnecessary comment by Mr. Shane Santry in his expert report. Mr. Santry mistakenly appears to be referring to the construction of the gable wall of the new extension at yy when clearly, Mr. Ryan and Mr. Maguire were talking about the replacement of the garden wall only. In fact, the hoarding remained in situ until the 12th of November 2021. The reason given for the refusal of the Defendants to remove the hoarding was that the Plaintiff’s path was in a dangerous condition, due clearly to the unilateral excavation by the Defendants, without the knowledge, consent or permission of the Plaintiff and it remains in that condition to this day.

17. Once the permanent type hoarding was erected it was not possible for the Plaintiff to see what work was going on at the side of her property at xx, her home. There was no discussion or agreement whatsoever or at all in relation to the issue of the new wider and deeper foundations or where such foundations were to be located. There was no discussion or agreement whatsoever in relation to the removal of the original foundation and replacement with a new foundation and certainly on any reasonable interpretation of the email exchange it is difficult to see how the same could be seen as an implicit, much less than express, consent to the excavation of the Plaintiffs property to install a new joint foundation which was to serve the replacement of the existing boundary wall and construction of a much bigger and heavier wall necessitated by the extension to yy, completely in contravention of the existing agreement and the assurances by and on behalf of the Defendants. The emails from Martin Ryan are so detailed that had it actually been an issue, Mr. Ryan would have specifically dealt with such works and all specifications. That is not what occurred.

18. It appears that that foundation was constructed on the advice of an engineer, Mr. Paul Cuddy, and was presumably so instructed by David Cashin. Mr.

Ryan never met with Mr. Cuddy. Neither Mr. Cuddy or Mr. Cashin gave evidence during the course of the hearing, and reference is made in emails that David Cashin "misinterpreted' the situation. In support of this, following an on-site meeting at yy between Martin Ryan and the Defendant's builder, Mr. David Cashin, Mr. Cashin prepared a contemporaneous drawing which is contained in the Defendants' booklet of photographs and sketches page 13 number [confirms that what was agreed was finished floor level at xx the property of the Plaintiff and nothing else. The drawing also confirms the Plaintiff and Mr. Martin Ryan's evidence that the hoarding was temporary and was to be brought back on to the Defendants’ property. In that context, it must also be remembered that Mr. Maguire was not present when the works were being carried out and he does not appear to have given any instructions in relation to the works, as is acknowledged by him in his email to Martin Ryan at 17.59 on the 3rd of August 2021. This is particularly so given his subsequent certification of the works.

19. In his email of the 17.48 on the 3rd of August 2021, Martin Ryan sets out concerns as to the situation as it then was, and he expresses concerns that the walls and rising wall and the foundations had been removed as well as the fact that significant excavation had been carried out under xx.

Somewhat surprisingly, there is no reference in the contemporaneous email response from Mr. Josh Maguire nor is there any evidence from anybody else on behalf of the Defendants in this regard, that quite clearly the new foundation had been erected for part and parcel of an "agreement"

or that they were somehow or other necessary for the erection of the new garden wall or otherwise. Instead, what was agreed was that the foundation would be cut so that in effect xx and yy would have independent foundation with the wall of the extension to yy being entirely inside the garden wall as is evident by the drawings produced by David Cashin at Page 25 of the Defendants' photograph booklet. However, the Defendants subsequently resiled from this position as it did not suit their building works but were ultimately compelled to saw-cut the trespassing part of the foundation from the plaintiff's property at xx because of the complaint made to the enforcement section of the local authority.

20. Taking into account the evidence of Martin Ryan, the contemporaneous email exchange and evidence of Mr. Josh Maguire it is clear that there never was any implied let alone express agreement in relation to the erection of a foundation under the pathway of xx, the property of the Plaintiff which would serve as a common foundation and being both larger, deeper and significantly in excess of what would be required for the erection of a garden wall. Equally, there was no consent whatsoever given in respect of the works being carried out under the pathway in xx, the property of the Plaintiff, with the excavation of the ground and foundations of the pathway of xx to provide for such joint foundation.

Those excavation works were and resultant damage were carried out by the Defendants' builders without notice to or consent from Martin Ryan, the Plaintiff or her husband and certainly without their knowledge. There is no reference in any of the contemporaneous emails to any consent given, either express or implied by Martin Ryan to the construction of the new larger foundation, rather, that the said larger, wider and deeper foundations were constructed on the instructions of the engineer, Mr. Paul Cuddy, by the builder, who apparently "misinterpreted' his instructions in the matter. It is submitted that there never was any consent given to those works being carried out and it is accepted and must be obvious from the photographs that the works as carried out, have significantly damaged the Plaintiffs property and that damage continues and remains to be remedied by the Defendants who caused that damage and trespassed. It must also be accepted that the trespass, defective works and resultant damage were, at this stage, carried out nearly three years ago and remain to be remediated and have caused inconvenience, loss and damage to the Plaintiff which continues.

JAMES DWYER S.C.

CONOR KEARNEY B.L.

LEGAL SUBMISSIONS ON BEHALF OF THE DEFENDANTS

1 INTRODUCTION

PRELIMINARY

OBJECTION

1.1 What the Plaintiff has delivered by way of “legal submissions” (received on the 25 th September 2024) are not “legal submissions”. They are the Plaintiff’s inaccurate, partial summary and misinterpretation of the evidence actually adduced during the hearing.

1.2 It is also submitted that the proffered conclusions advanced by the Plaintiff are not sustainable, having regard to the evidence actually adduced.

1.3 Mr. Martin Ryan, who was called as the Plaintiff’s expert witness (i.e., Architect), gave evidence and held himself out as being a registered Architect on the Register of Architects of the Royal Institute of the Architects of Ireland (“RIAI”) until approximately 2017. In fact, as confirmed by the RIAI, Mr. Ryan was never on the Register of Architects since its th establishment on the 16 November 2009. Mr. Ryan’s conduct and untruthful evidence, as ruled by the Court on the 30th November 2023, having heard submissions from the Defendants’ Counsel, preclude him from being treated by the Court as an expert witness.

Pursuant to the Court’s Ruling, the Plaintiff has no expert witness in the case. Therefore, any opinion evidence given by the Plaintiff and/or a witness called by her must be disregarded in its entirety.

1.4 It is also submitted that save and insofar as Mr. Ryan in his evidence made admissions in cross-examination by the Defendants’ Counsel, his evidence as a witness as to fact should be disregarded for his acknowledged untruthfulness, and for the reasons which are further elaborated below. It is submitted that to do otherwise would result in the Court falling into serious error.

1.5 While it is appropriate to briefly refer to, or summarise evidence adduced at the hearing which is relevant to the legal submissions, whether it be a rule of evidence, or a substantive rule of law or statutory law, it is submitted that the document delivered on behalf of the Plaintiff does not contain references to any legal principles, judicial authorities, or statutory provisions. The document’s contents are inaccurate and misleading. The document also includes a statement of evidence, purported to have been given by Mr. Ryan at the trial of the action, which was not given. The issue will be addressed in detail below.

1.6 These legal submissions on behalf of the Defendants highlight many of the fundamental inaccuracies in the Plaintiff’s submissions; refer to relevant rules of evidence; relevant legal principles established by judicial authorities; and relevant statutory provisions, to which the Court is required to have regard in determining the proceedings.

1.7 It is the Defendants’ submission that the Plaintiff’s proceedings should be dismissed. It is appropriate to highlight and reflect on the following circumstances out of which the Plaintiff has claimed that a legally binding agreement was reached between her and Mr. John Connolly, who it is claimed by the Plaintiff in the Equity Civil Bill, was a representative of the Defendants, and with whom the Plaintiff claims she allegedly reached an agreement on an unspecified date and month in 2019 as pleaded in paragraph 5 of the Equity Civil Bill.

2. THE ALLEGED AGREEMENT

2.1 It is submitted that in light of the evidence given by Mr. John Connolly on behalf of the Defendants, the Plaintiff in these proceedings has inexplicably and unilaterally attempted to elevate “an event”, which involved Mr. John Connolly calling to his neighbours (i.e.

the Plaintiff and her husband, Mr. David Christie, solicitor) to familiarise the Plaintiff and Mr. Christie with the plans for the proposed extension works to the property, yy, Dublin X, and to answer any questions the Plaintiff and Mr. Christie might have concerning the plans for which he was seeking planning permission, to the status of a legal agreement, which the parties allegedly intended to be legally binding and enforceable.

2.2 This alleged legally binding agreement with the Defendants was, according to the Plaintiff, agreed with Mr. Connolly, who allegedly acted as the Defendants’ agent.

2.3 The Plaintiff has purported to imprint onto this neighbourly engagement the status of a legally binding agreement, the existence of which the Defendants in their Defence and Mr. Connolly in his evidence to the Court, have denied.

2.4 The claim by the Plaintiff must, it is submitted, be seen in the context that the Plaintiff is a former practising barrister, and a serving County Registrar. Mr. Christie is an experienced practising litigation solicitor. They did not have the alleged agreement reduced to writing. Had this been done, it would have underlined that the parties intended to enter a legally binding agreement, with its terms and conditions clearly defined. The document would have been duly executed, with the alleged consideration also identified, so as to avoid any possibility of Mr. Connolly or the Defendants ever denying in the future that such an agreement was actually reached with the Plaintiff and was legally binding and enforceable.

2.5 . It is submitted that the Defendants in their Defence delivered on the 11th March, 2022, and in the evidence given by Mr. John Connolly, have denied the alleged agreement, is not at all surprising.

2.6 It is submitted that Mr. Connolly, who has two young children, called on the Plaintiff and her husband, who had been neighbours of the First and Second Named Defendants for approximately twenty years, (and who had retained Mr. Christie’s firm to act as their solicitors in the sale of their home to the Third Named Defendant), for the purpose of introducing himself, briefly outlining and explaining the proposed extension in respect of which Mr. Connolly and the Third Named Defendant had applied for planning permission.

He intended answering any questions that the Plaintiff and Mr. Christie may have after considering the plans which Mr. Connolly had left with the Plaintiff and Mr. Christie, a number of days previously.

2.7 In general, good neighbours will assist and communicate with each other without ever imagining that they are creating legally binding relations. The Courts are slow to permit the black letter principles of contract law to “cross the garden hedge.” The Defendants have resolutely denied the agreement alleged by the Plaintiff. See Contract Law, McDermott, Second Edition, 2017, paragraph 4.40. See also Coleman v Mullen [2011]

4 IR 603.

3. PRE-LITIGATION CORRESPONDENCE

3.1 It is submitted that it is evident from a careful consideration of the pre-litigation correspondence and communications (including e-mails between the Plaintiff’s agent, Mr.

Ryan, and Mr. Josh Maguire, FRIAI, Architect, retained on behalf of Mr. John Connolly, and the Third Named Defendant) that the Plaintiff from the outset was not interested in resolving issues that arose on an amicable or neighbourly basis.

3.2 The Plaintiff intended, it is submitted, to have the Defendants submit to her imperious and ever-changing demands and to have them admit the wrongdoings alleged by her that the Defendants have always denied.

3.3 It is submitted that on an objective analysis of the pre-litigation correspondence and email communications, the following facts are confirmed:

i. The Architect and builder, (Mr. David Cashin of DAC & Company Limited), retained by Mr. Connolly and the Third Named Defendant, went on to the Plaintiff’s property at the request of and with the permission of the Plaintiff’s agent, Mr. Ryan. But for this request and the permission given, the Architect and builder would not have gone on to the Plaintiff’s property, with all construction works being confined to within the boundaries of the property owned by the Third Named Defendant;

ii. The Plaintiff, from the outset when issues arose, never adopted a reasonable or neighbourly response. Instead, she and her husband sought to weaponise their legal experience in her dealings with Mr. Connolly and the Third Named Defendant (who had no legal experience), by insisting on extracting from Mr. Connolly and the Third Named Defendant admissions of wrongdoing, which they never committed;

iii. What is stated in the preceding sub-paragraph is confirmed by the aggressive, accusatory and strident language contained not only in the correspondence issued by the Plaintiff’s solicitors, (the authorising of which she confirmed under crossexamination), but also in the e-mail correspondence issued by the Plaintiff’s agent, Mr. Ryan, to Mr. Connolly and the Third Named Defendant’s Architect;

iv. The foregoing is further confirmed by the Plaintiff’s inexplicable refusal to engage in mediation, which was first requested in the Defendants’ solicitors’ letter dated the

6th August 2021.The Plaintiff’s subsequent conduct provided clear evidence of a determination to pursue her claim to trial. The Plaintiff’s refusal to mediate the dispute was all the more inexcusable due to her role as a County Registrar in relation to Alternative Dispute Resolution under the Circuit Court Rules (Order 19A). Even after proceedings had issued, the Defendants had to issue a Motion seeking an Order from the Court, inviting the parties to mediate. The Plaintiff opposed the application vigorously, with the Court ultimately making an Order on the 25th April 2022, inviting the respective parties’ experts to meet and that the mediation take place within four weeks from the meeting. Subsequent to the mediation, the Plaintiff breached the confidentiality terms under which it was conducted and, specifically section 10 of the Mediation Act 2017, which is the statutory basis for confidentiality in mediation. She did so in correspondence issued by her solicitors dated the 26th July 2023 and in two further separate items of correspondence, dated the 21st November 2023, presumably to gain a litigation advantage. The Defendants’ solicitor objected not only to the flagrant, repeated breaches of confidentiality by the Plaintiff, but also to the inaccuracy of the purported description in the said correspondence of alleged events at the mediation.

The correspondence was put to the Plaintiff in cross-examination. She did not deny the correspondence was issued on her behalf. Under cross-examination, Mr.

Christie confirmed that mediation must be confidential;

v. The arrogant and obdurate position adopted by the Plaintiff is further underlined by the fact that she refused to engage directly with Mr Connolly and the Third Named Defendant and directed that all communications and correspondence should be through her solicitors, whose correspondence was directed to the Defendants’ solicitors;

vi. The correspondence from the Defendants’ solicitors, in stark contrast, sought an early, amicable, and sensible resolution of the issues that had arisen between the parties. As evidence of the lengths to which the Defendants went to resolve the issues as quickly as possible without litigation, they instructed their solicitors to make eight separate offers, detailed in eleven items of correspondence between the

4th August 2021 and the 9th November 2021, to resolve the issues (all of which were opened to the Court). The Defendants’ offers, which included financial offers, were made in circumstances where they resolutely denied the wrongdoing alleged by the

Plaintiff and denied liability. (See the Defendants’ solicitors’ letter of the 18th January 2022 to the Plaintiff’s solicitors). Subsequent to the issuing of the proceedings, the Defendants made two further offers to the Plaintiff to settle the dispute, without admission of liability. The offers were contained in correspondence dated the 15th May 2023 and the 28th November 2023, which were opened to the Court; and

vii. Extraordinarily, in her evidence-in-chief at the trial, (prior to delivery of the letter of the 28th November 2023), the Plaintiff denied having received any offer from the Defendants to settle the dispute, save that she withdraw her action. She repeated the claim under cross-examination. Highly unusually, the Defendants gave the Plaintiff the opportunity to correct her evidence. She did not do so.

3.4 It is submitted that the pre-litigation correspondence confirms that the Plaintiff adopted an implacable and indefensible position from the very outset. It is also submitted that the Plaintiff has chosen to advance a case which has no basis in reality. The purported substance of the Plaintiff’s claim, as pleaded, is based on an alleged agreement which is wholly notional and is of no legal effect.

3.5 In opening the Plaintiff’s case, her Senior Counsel, Mr. Dwyer SC, detailed what she sought the Court to Order as a “solution” to address the alleged dampness caused at her property due to the works carried out at the Defendants’ property. He outlined works that she required to be undertaken. The work was said to cost €10,000. Under crossexamination, the Plaintiff admitted that at no time prior to the opening of the case had she informed the Defendants of the “solution” urged upon the Court. No admissible expert evidence was adduced by the Plaintiff, (which could be tested in cross-examination), regarding the works she required. Hence it is submitted the Plaintiff’s “solution” must be disregarded. It also is submitted that the Plaintiff’s conduct provides further evidence of her unreasonable approach to the litigation.

3.6 The obstructive and extreme position adopted by the Plaintiff continued after the proceedings issued. Under cross-examination at the trial, the Plaintiff admitted instructing Mr. Ryan not to share relevant photographs with the Defendants and their expert, despite repeated requests from the Defendants’ solicitor to do so. The photographs were only furnished on the first day of the hearing. Such conduct has been deprecated by the Courts and, in particular, by the Supreme Court. In McGrory v ESB [2003] 3 IR 407, Keane CJ stated, at p414:

“There is no room today in properly conducted litigation for an approach which denies one side access to relevant material which in any event will be available at a later stage in the proceedings. That was the view taken in the authorities in other jurisdictions… and I have no doubt that it accords with fairness and common sense.”

3.7 Before dealing with the specific wrongdoings alleged by the Plaintiff in the Equity Civil Bill and further to the submissions contained in Section 2 above, it is appropriate to briefly refer to the burden of proof resting on the Plaintiff with regard to the alleged causes of action pleaded in the Equity Civil Bill.

4. THE LEGAL BURDEN

4.1 The Plaintiff in this case must discharge the “legal burden”. The standard of proof in a civil case, such as this one, is proof “on the balance of probabilities”.

4.2 The “legal burden” is the burden of proof properly so called and is the burden fixed by law on a party to satisfy the tribunal of fact as to the existence or non-existence of a fact or matter.

4.3 Where the legal burden is borne by a party in relation to an issue, he or she is required to persuade the tribunal of fact to the criminal or civil standard of proof, as appropriate, in relation to that issue. If the party fails to discharge this burden, then he or she will lose on that issue. The legal burden allocates the risk of failure in proceedings.

4.4 The legal evidential burden remains with the Plaintiff at all times and is encapsulated in the phrase that he who asserts must prove: -

“(Ei incumbit probatio qui dicit, non qui negat)” – Wicklow County Council v Fortune

[2012] IEHC 406 at [19].

4.5 At paragraph 2-137 of McGrath on Evidence (Third Edition, 2020), the authors state:-

“137 A s a rule of thumb, this will generally mean that proof of the facts necessary to establish a cause of action will rest on party bringing the proceedings, while proof of defence to the action will lie on the party raising the defence”.

4.6 The authors, at paragraphs 2-156 and 157, refer to the decision of Miller v Minister of Pensions [1947] 2 All Er 372 – 374, where Denning J stated, when explaining what is required in relation to the standard of proof on a balance of probabilities: -

“[i]f the evidence is such that the tribunal can say: `We think it more probable than not”, the burden is discharged, but if the probabilities are equal, it is not’.

4.7 The foregoing statement was approved in this jurisdiction in O’Brien v Derwin [2009] IEHC 2 at 80[5].

4.8 The same authors have stated at paragraph 2-157 of their text that in order to meet the standard of proof and discharge a legal burden on it in relation to an issue, a party must satisfy the tribunal of fact that its version of events is more probable than that advanced by his or her opponent. If he or she fails to do this, as where the probabilities are equal or the tribunal of fact is not in a position to decide which version of events is more probable, then the party will lose on that issue – see Mero-Schmidlin [UK] plc v Michael McNamara & Company [2011] IEHC 490 at [2].

4.9 It is submitted that on the correspondence and on the evidence given by Mr. Maguire, Architect, who was retained by Mr. Connolly and the Third Named Defendant as the architect for the building works, and the evidence of Mr. John Connolly, the Plaintiff’s allegation that the Defendants trespassed onto the Plaintiff’s property is untenable.

4.10 It is submitted that it is clear that the Plaintiff’s agent, Mr. Ryan, acting on the instructions of the Plaintiff, gave permission to go onto the Plaintiff’s property for the purpose of carrying out works to the boundary wall, which the Defendants assert was agreed and from which agreement the Plaintiff and her agent subsequently resiled. As a result, the works on the Plaintiff’s property remained stalled from August to October 2021, with the Plaintiff refusing to allow the Defendants’ builder onto the Plaintiff’s property to complete the works on the Defendants’ property, and/or to remove the hoarding which had been erected on the Plaintiff’s property with the agreement of Mr.

Ryan.

4.11 It is submitted that the evidence shows beyond any doubt that Mr Ryan, acting on the instructions of the Plaintiff, requested and gave permission to the Defendants’ Architect and builder to go on to the Plaintiff’s property to demolish the boundary wall and to erect a new wall.

4.12 The works having commenced, Mr. Ryan, acting on the instructions of the Plaintiff and contrary to the clear terms which he had agreed with Mr. Maguire and the builder, objected to the manner of construction of the new boundary wall. It was not until November 2021, when the Plaintiff allowed access to her property to have the hoarding removed, were the Defendants in a position to have their builder remove the hoarding.

4.13 Had the Plaintiff given permission in August 2021 to have the hoarding removed, it is also clear from the evidence that the hoarding would have been removed, with the Defendants’ Architect and builder advising Mr. Ryan in August 2021 of the fact that the pathway adjacent to the boundary wall was insecure and needed to be secured.

4.14 As confirmed by Mr. Connolly in his evidence, he was completely unaware of the damaged state of the boundary wall, on the Plaintiff’s side, prior to the works commencing. Mr. Connolly only became aware of same when he saw a copy of the written submission made by the Plaintiff and Mr. Christie to the planning authority. The submission contained a statement that the boundary wall on the Plaintiff’s side was badly damaged, was an insecure structure and required to be moved. The Plaintiff and Mr.

Christie stated that it would be appropriate to construct a new boundary wall.

4.15 In addressing the pleading contained in paragraph 8 of the Equity Civil Bill that the

Plaintiff allegedly in or about the week ending the 9th July 2021 noticed that damage had been caused to the boundary wall, it is submitted that the plea is relevant to the Plaintiff’s credibility. The Plaintiff failed to disclose in the Equity Civil Bill and previously failed to disclose to Mr. Connolly and the Third Named Defendant that the boundary wall on the Plaintiff’s side had been badly damaged, and in the submission made by the Plaintiff to the planning authority, had requested the demolition of the boundary wall and the erection of a new boundary wall.

4.16 Evidence adduced on behalf of the Defendants, both from Mr. Maguire, Architect, and Mr. Connolly, was in terms that the damage to the boundary wall was not caused by the building works. The Defendants notwithstanding this fact, were prepared to demolish the boundary wall and erect a new boundary wall at the expense of Mr. Connolly and the Third Named Defendant in respect of which permission was given by Mr. Ryan on the instructions of the Plaintiff.

4.17 It is submitted that on the basis of the evidence actually adduced at the hearing, to include both documentary evidence and oral evidence adduced on behalf of the Defendants, the Plaintiff’s causes of action with regard to the alleged agreement and the alleged trespass as pleaded in paragraph 5 of the Equity Civil Bill must fail. The evidence clearly shows that the Plaintiff, through Mr. Ryan, had given permission to Mr. Maguire, Architect, and the Defendants’ builder, who had been retained on behalf of Mr. Connolly and the Third Named Defendant, to go on to the Plaintiff’s property.

4.18 It is submitted that it is equally clear that but for this permission, neither the Defendants’ Architect nor their builder would have gone onto the Plaintiff's property and would have confined all works within the boundary of the Defendants’ property.

4.19 In correspondence dated the 4th November 2021, the Plaintiff’s solicitors wrote that she would “make whatever arrangements she needs for the purposes of reinstating her property…” The letter was put to the Plaintiff in cross-examination. She admitted having taken no action to “reinstate her property” since the date of the letter. It is submitted the Plaintiff’s admission confirmed she has failed to mitigate her alleged, or any, loss.

4.20 The Plaintiff’s claim, at paragraph 2.9 of her submissions, that on crossexamination, her “evidence in chief was not challenged” is plainly false.

5. ALLEGED BREACH OF PLANNING PERMISSION

5.1 The Plaintiff in paragraph 16 of the Equity Civil Bill has pleaded that the Defendants acted in breach of planning permission in carrying out their works and in allegedly trespassing on her property

5.2 In paragraph B of the Defence, delivered on the 11th March, 2022, the Defendants expressly plead that the Plaintiff can not maintain an action, or seek reliefs in respect of an alleged breach of planning permission, in circumstances where there is an express remedy provided for such a breach under the Planning and Development Act, 2000, and where such causes of action must be brought by way of an Originating Notice of Motion and not by way of an Equity Civil Bill.

5.3 The Plaintiff did not adduce any evidence or make any legal submissions to the Court to dispute the pleading contained in paragraph B of the Equity Civil Bill.

5.4 In addition, the Defendants also adduced evidence at the hearing that the complaint made to the planning authority with regard to the Defendants’ property and the allegation that an unauthorised development was taking place on the property and in respect of which the planning authority wrote to the First and Second Named

Defendants by letter dated 18th October 2021, was never established. Under crossexamination of the Plaintiff, it was established that Mr. Ryan, (who acted as her adviser in respect of the Defendants’ Planning Application and in relation to the issues that arose during the Defendants’ works), made the complaint. This is confirmed in paragraph 6.3 of the Plaintiff’s submissions. The planning authority, (Dublin City

Council), by letter dated the 16th March, 2022, wrote to the First and Second Named Defendants confirming that the enforcement file opened in respect of the complaint had been closed. The works and relevant documentation have been verified by Dublin City Council’s Building Control division and a Certificate of Compliance on completion was issued.

5.5 It is submitted that as the planning authority was satisfied there was no breach by the First and Second Named Defendants of the planning permission regarding the works, in respect of which the complaint was made, the Plaintiff’s claim concerning the alleged breach of the planning permission must be dismissed. The Plaintiff did not abandon her application for an injunction pursuant to section 160 of the Planning and Development Act 2000 (as amended) until the first day of the trial.

5.6 In his evidence, Mr. Maguire confirmed that he had agreed to the demolition of an existing garden wall between the properties of the Plaintiff and the Defendants and for the construction of a new wall. The wall foundation straddles the boundary between the properties, similar to the original. It is a party wall. Mr. Ryan instructed Mr.

Maguire and Mr. Cashin regarding the manner in which he wished the works within xx relating to the wall to be carried out. The foundation was cast and the block laying for the new wall was scheduled to commence on the 3rd August 2021. Mr. Maguire told the Court that the foundation had to be on part of the Plaintiff’s property, in order to support the garden wall between the two properties. In his evidence, Mr. Shane Santry, MRIAI, Architect, the independent Architect called by the Defendants to give evidence, told the Court that, in his experience, the foundation of a party wall straddles the boundary of the respective properties in “the vast majority of cases”.

5.7 However, the Plaintiff prevented the works taking place. Mr. Ryan requested that the foundation be saw-cut. The Defendants agreed to this. The Plaintiff delayed giving permission for three months for access to the foundation. In rebuilding the wall, it was necessary to replace the existing foundations with a continuous, reinforced foundation, in order for the wall to be structurally sound. There was no linkage between Mr.

Ryan’s complaint to the planning authority and the saw-cutting of the foundation.

5.8 At paragraph 7.3 of her submissions, the Plaintiff states that an issue arose at trial concerning evidence given by Mr. Maguire that, she claims, had not been put to her or her witnesses. No application was made by the Plaintiff to recall any witness.

6. DAMPNESS TO THE PLAINTIFF’S GARAGE WALL ALLEGEDLY CAUSED BY ABSENCE OR MISAPPLICATION OF DAMP PROOF MEMBRANE IN NEW FLOOR IN THE DEFENDANTS’ PROPERTY

6.1 Although not pleaded in the Equity Civil Bill, the Plaintiff through her solicitors and by Notice dated the 2nd March 2022 notified the Defendants’ solicitors that the works carried out by the Defendants caused dampness to and in the Plaintiff’s garage and its wall. The Plaintiff’s garage is an unheated and unlived-in space and has unsealed double garage doors, as evidenced in the photographs adduced in evidence.

6.2 The claim that the works had caused dampness to the Plaintiff’s garage wall was advanced on the advice provided by Mr. Ryan. He was retained by the Plaintiff as her adviser in respect of architectural matters. Mr. Ryan subsequently represented and held himself out to the Defendants’ Architect and builder as being a practising Architect, carrying on business in that capacity.

6.3 The basis on which the dampness claim was initially advanced is specifically stated in the Notice dated the 2nd March 2022, sent to the Defendants’ solicitor, in the following terms:-

“Mr. Ryan notes that in late November 2021, a new concrete floor slab was poured throughout the new and existing extension area of yy. The new area of floor is at ground level in the house which is approximately 350mm above the garage and passageway level at xx. The construction of the floor slab without a Damp Proof Membrane (DPM) in this location and level where it is above the level of the damp proof course (DPC) in the party wall, will result in the permanent dampness in the party wall as dampness now by-passes the DPC though the new floor, this floor slab will always remain damp and will absorb moisture from the ground under the house. Accordingly, it represents poor and substandard building practice and poses a permanent, long-term threat to the integrity of our client’s home at xx.

… it is Mr. Ryan’s opinion that the most cost-effective way to rectify this problem would be for the contractor at yy to excavate and remove the floor slab.

Mr. Ryan is of the view that the replacement of the floor slab in yy should be treated as an immediate priority”. (Emphasis added)

6.4 The alleged cause of the dampness in the wall of the Plaintiff’s garage is categorically stated to be due to the “construction of the floor slab without a Damp Proof Membrane (DPM)” (emphasis added), which the Plaintiff alleged is above the level of the damp proof course (DPC) in the party wall.

6.5 This allegation was made in circumstances where Mr. Ryan, prior to making the allegation, could have ascertained as a fact that which Mr. Paul Keenan, FRIAI, Architect, an independent expert nominated at the direction of the Court, ultimately did on the 14th May 2024, by carrying out a core drill test in the party wall to establish the absence or presence of a DPM, and if present, whether the DPM was appropriate. Mr.

Keenan’s appointment was necessary, following the Plaintiff’s objection to the first independent expert nominated by the RIAI on foot of a direction by the Court, Mr.

Dan Daye, Architect. The Plaintiff maintained her objection despite Mr. Daye stating in correspondence (see letter dated the 26th January 2024, which was opened to the Court) that he was satisfied his ability to carry out the Court’s instructions independently was not compromised by contact he had with Mr. Maguire. The inspection directed by the Court was focused, exclusively, on establishing facts relating to the works carried out at the Defendants’ property. An opinion was not required, or to be given. It is submitted that the facts established by Mr. Keenan’s inspection were exactly the same as those that would have been confirmed by Mr. Daye had the Plaintiff not objected unreasonably to him carrying out his inspection some three months earlier.

6.6 Mr. Keenan also ascertained the precise position of the DPC in the party wall between yy and xx. He confirmed it took him approximately ten minutes to verify the location of the DPC. The DPC was found to be approximately 260 millimetres above the garage floor in xx, the Plaintiff’s property. Mr. Keenan also took moisture readings. It is submitted that the readings are in the normal range for a wall, below DPC level, in an unheated space, such as the Plaintiff’s garage, compounded by moisture ingress at its doors, as identified in moisture readings put in evidence before the Court. In his evidence, Mr. Santry said the readings are as he would expect in an unheated space.

6.7 Under cross-examination, Mr. Ryan admitted that he did not take any action to ascertain the level of the DPC in the party wall between yy and xx. Mr. Ryan’s erroneous belief was that the DPC in the party wall was at the floor level of the Plaintiff’s garage. He offered no explanation for this omission.

6.8 Mr. Ryan preferred to make an allegation which transpired to be completely erroneous, as confirmed by Mr. Keenan in his independent Report to the Court, (dated the 17th

May 2024). It established, pursuant to his on-site inspection, the presence of an effective DPM and DPC. The photographs taken by Mr. Keenan during his inspection, and which were opened to the Court in his Report, established, conclusively, that the DPM was present. Mr. Keenan’s site inspection proved that a DPM was present at the floor in yy, below the level of the DPC and lapped up against the party wall with the Plaintiff’s property. In his evidence, Mr. Santry said the DPM was lapped up against the party wall and the overlapping is to create a continuous membrane.

6.9 Mr. Santry’s evidence was that, based on the results of Mr. Keenan’s inspection, he could not see how any moisture from yy would affect the wall in xx. He said it was usual to have one DPM in the floor. In the case of the Defendants’ property, there are three membranes in the floor. In his opinion, the presence of the additional membranes would provide extra protection against any possible passing of moisture from the Defendants’ property to that of the Plaintiff. Mr. Santry said he had witnessed no evidence of dampness at y y . Asked by the Defendants’ Counsel if the laying of the floor at the Defendants’ property caused dampness at that of the Plaintiff, Mr. Santry replied that he did not believe so.

6.10 Mr. Santry gave evidence that, in his opinion, there were a number of causes for the dampness in the Plaintiff’s garage. The topography of the land on which the parties’ houses are built and the stepped construction of same meant there is a path for moisture up from the ground into the Plaintiff’s property, which is lower than that of the Defendants. The wall in the Plaintiff’s garage below the DPC would be susceptible to wetness. The garage itself is unheated. The driveway at the property slopes towards the garage door and gaps in the door meant water could enter the garage.

6.11 Arising from the contents of paragraph 4.1.11 of his report dated the 12th July 2024, Mr. Santry was satisfied any dampness to the Plaintiff’s garage wall is highly unlikely to be caused by the construction at the Defendants’ property. He could see no route for any damp ingress into the neighbouring property caused by the works at the Defendants’ property. In Mr. Santry’s opinion, the lower level DPM, as identified by Mr. Keenan, is a first barrier and the upper Radon barrier acts as a second defence against moisture.

6.12 Mr. Keenan did not state, either in his Report, or in his evidence to the Court, that the “DPM was in the wrong place”, contrary to the inaccurate assertion contained in paragraph 8.2 of the Plaintiff’s submissions. Furthermore, Mr. Keenan did not state, in his Report or in his evidence, that the concrete in the core sample he took from the Defendants’ property during his inspection was substandard or deficient in any way.

6.13 The Plaintiff resiled from her original claim that there was no DPM laid to make the claim that the dampness was as a result of the DPM having been laid on top of the concrete slab, instead of under it, and claimed as a result that the concrete slab was exposed to and absorbed damp from the ground.

6.14 This second alleged cause of the dampness as formulated by the Plaintiff is contained in the Plaintiff’s Further and Better Particulars of Loss and Damage dated the 19 th December 2022 in which the following is stated:-

“The consequences of the Damp Proof Membrane being laid on top of the concrete slab, instead of under it, is that the concrete slab is exposed to and absorbs damp from the ground. As the concrete slab rises to approximately 285-290 [mm] above the level of the Damp Proof Course and the party wall, this section of the wall above the floor level in the internal passageway and garage is now exposed to continual dampness. This is negligent building practice. The only way to restore the party wall to its prior dry state is to remove and replace a narrow strip of the new floor for its full length and depth in the Defendants’ property where it meets the party wall to the Plaintiff’s property. As the concrete strip is replaced, the new concrete slab should be poured on top of a damp proof membrane that laps and is sealed to the damp proof course in the party wall and which rises up the party wall for the full depth of the new floor. The insulation can then be laid directly on top of the concrete slab before the screed and finishes are provided as at present”.

6.15 Furthermore, in the Plaintiff’s Further and Better Particulars of Loss and Damage, dated the 5th April 2023, it was stated:

“… the height above floor-level of the elevated moisture readings… was caused solely and entirely on the Defendant’s (sic) yy side of the said wall by a bridging of the original damp-proof course (at garage floor level) and inadequate damp-proof measures in the construction of the works…” (Emphasis added)

This second formulation is, it is submitted, entirely undermined by the findings of Mr. Keenan and the evidence given by Mr. Maguire, Architect, and by Mr. Shane Santry, Architect.

6.16 In refuting this second claim by the Plaintiff, Mr. Maguire explained that it was impossible for dampness to seep or transfer from the Defendants’ property to the Plaintiff’s property, because of the presence of the DPM in the floor, lapped vertically against the party wall.

6.17 At paragraph 13.1 of her submissions, the Plaintiff refers to a drawing of his specification of the works to be carried out at the Defendants’ property, which Mr.

Maguire prepared. The Court was referred to the drawing at the opening of the trial.

However, the Plaintiff’s position, as stated by Mr. Dwyer SC, was that account ought not to be taken by the Court of the drawing. What was actually constructed mattered, it was submitted.

6.18 Mr. Keenan’s Report confirmed that the floor in the Defendants’ property, as built, is slightly different in dimensions from the specification as issued by Mr. Maguire to the builder. However, it is submitted that Mr. Keenan’s Report, (in particular, section 7 and subsection 7.7 thereof, which details the layers found in the floor, their order from top to bottom and measurements of their depth), establishes beyond dispute that all elements of the floor build-up as designed are present. Specifically, above the hardcore, the seven layers are: concrete with some wire mesh; the black DPM;

concrete slab; Radon Barrier (red membrane); foil faced high density insulation; light visqueen (plastic) membrane; and screed. In the floor build-up, there is more than one DPM, because a Radon Barrier can also act as a DPM. Nevertheless, as Mr. Maguire told the Court, the relevant DPM is always the lowest one in the floor. In the photographs accompanying Mr. Keenan’s Report, the relevant DPM is the black one, which is clearly positioned below the level of the DPC. The construction, it is submitted, does not take from the fact that the DPM prevents passage of moisture through the party wall. This is established by Mr. Keenan’s investigation. Therefore, the floor as built is compliant in all relevant substantial details with the original design and is so certified.

6.19 In paragraph 13.3 of her submissions, the Plaintiff alleges that “…the damp enters the party wall as per the attached drawings and… the floor in yy has not been constructed in accordance with and does not comply with the Building Regulations.”

No “drawings” are attached to the Plaintiff’s submissions. No “drawings” were adduced in evidence by the Plaintiff, or any of her witnesses. None were put to Mr.

Keenan and/or to any of the Defendants’ witnesses. In addition, no admissible expert evidence was called by the Plaintiff concerning compliance of the works with the Building Regulations. Therefore, it is submitted the Plaintiff’s submission must be disregarded entirely.

6.20 It is submitted that on the basis of the expert evidence adduced on behalf of the Defendants by Mr. Santry, when considered with the evidence of Mr. Maguire, Architect, both of whom accepted and relied on the findings of Mr. Keenan, the Plaintiff’s claim should be dismissed. The effect of Mr. Keenan’s evidence was that the dampness in the Plaintiff’s garage wall could not have been caused by dampness transferring from the Defendants’ property.

6.21 It is also submitted that there was no admissible expert evidence adduced on behalf of the Plaintiff to gainsay or undermine the evidence adduced on behalf of the Defendants on the dampness issue.

6.22 The Defendants rely on the following statement of the law by O’Donnell J (as he then was) in the case of Karen Millen Fashions Ltd v Dunnes Stores [2014] IESC 23 at [23] where he stated as follows: -

“… I can see how it is at least convenient to permit experts to give evidence in general as to their conclusions, so long as it is very clearly understood that what is important are the reasons leading the expert to that conclusion rather than the fact of the conclusion itself… their evidence can often be best understood when both the reasons and conclusions are stated so long as it is understood and appreciated that the reasons leading an expert to a particular conclusion are the important matters for the Court to consider”.

6.23 It is submitted that a number of issues, including those stated in Section 1 of these Submissions, are relevant. First, there is a complete lack of moisture readings from the Plaintiff for a period of approximately 20 years with regard to the wall of her garage prior to approximately January 2022. The Plaintiff admitted under cross-examination that she had no moisture readings relating to the party wall in the garage between her property and that of the Defendants taken prior to the works carried out by the Defendants. Mr. Ryan had no moisture readings for the party wall prior to the Defendants’ works either when he gave evidence and was cross-examined. Second, there is the erroneous assumption initially made by the Plaintiff that there was no DPM present in the floor newly laid in yy. Third, there was the revised claim that the DPM placed on top of the floor slab was the cause of the dampness in the Plaintiff’s garage wall. Fourth, there is the Plaintiff’s basic error in claiming that the DPC between yy and xx is at ground level of the Plaintiff’s garage. Arising from the foregoing, the Plaintiff’s case on the issue of dampness is completely eroded and unsustainable.

6.24 In addition to the foregoing, the Plaintiff is precluded from relying on Mr. Ryan as an expert witness in light of the Ruling made by the Court during the hearing of the case on the 30th November 2023. On foot of the Ruling, Mr. Ryan was only permitted to give evidence as a witness as to fact.

6.25 It is to be noted that the written submissions made on behalf of the Plaintiff attempt to go behind the Court’s Ruling and treat Mr. Ryan as an expert, who gave expert evidence upon which the Plaintiff is asking the Court to rely in support of her claim.

6.26 The Defendants submit that this submission should not be entertained by the Court, as Mr. Ryan for the reasons briefly summarised above and below cannot be treated as an expert witness. To do so would be a clear breach of the Court’s Ruling. Mr. Ryan held himself out as being a registered Architect on the Register of Architects of the

RIAI up until approximately 2017, notwithstanding the fact he is not and never was registered on the Register of Architects, maintained by the RIAI since the 16th November 2009. The RIAI is the registration body for Architects, under the Building Control Act 2007.

6.27 In correspondence dated the 29th November 2023, (which was opened to the Court), the Registrar of Architects, Mr. Frank Turvey, confirmed that as of that date, Mr.

Ryan was not registered as an Architect in the State and his name had not been entered into the Register since its establishment. Mr. Ryan gave evidence to the Court which he knew, or ought to have known, was false. The fact that he gave false evidence while testifying as an expert witness, owing his primary duty to the Court, is, it is submitted, a very serious aggravating factor.

6.28 It is necessary to address in detail a section of the Plaintiff’s submissions relating to evidence allegedly given by Mr. Ryan at the trial. At paragraph 6.6, it is stated that Mr. Ryan “…confirmed that a meeting took place between Mr. Shane Santry, Mr.

Goodwin and [Mr. Ryan] at xx… Mr. Ryan stated that Mr. Santry stated to him and Mr.

Goodwin ‘The damp proof membrane has clearly failed’.”

6.29 The Defendants deny that the alleged evidence was given by Mr. Ryan, or by any other witness at the trial. It is notable that the Plaintiff does not claim evidence corroborative of that alleged to have been given by Mr. Ryan was elicited from Mr.

Alistair Goodwin, Architect, when he gave evidence. Mr. Goodwin was called as a fact witness by the Plaintiff and is claimed in her submissions to have been present when the alleged statement was made by Mr. Santry. Furthermore, Mr. Dwyer SC did not put the alleged evidence given by Mr. Ryan to Mr. Santry when he crossexamined him.

6.30 Therefore, the Defendants respectfully submit that the evidence allegedly given by Mr. Ryan regarding the statement alleged to have been made by Mr. Santry should be disregarded in its entirety.

6.31 The passage below was referred to extra-judicially by Lord Bingham in a paper entitled “The Judge as Juror”, which appears in a collection of his speeches and essays entitled: The Business of Judging, OUP, 2000. He stated at p 6:

“The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

16. the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

17. the internal consistency of the witness's evidence;

18. consistency with what the witness has said or deposed on other occasions;

19. the credit of the witness in relation to matters not germane to the litigation;

20. the demeanour of the witness.”

Lord Bingham’s observations have found favour in this jurisdiction. In Clayton v.

Cashman [2006] IEHC 360, Peart J observed (at pages 30 and 31) that they seemed to him to describe in a helpful way the manner in which a judge may be assisted in the task of reaching conclusions as to credibility.

6.32 It is submitted that applying the tests endorsed by Peart J in Clayton to the evidence given by Mr. Ryan, which was proven to be false, it is clear he is a wholly discredited witness, whose evidence ought to be disregarded in its entirety, save and insofar as it supports the Defendants’ case.

7. MR. RYAN – NOT AN EXPERT WITNESS

7.1 The written submissions made on behalf of the Plaintiff seek to go behind and ignore the Court’s Ruling that Mr. Ryan is not being treated as an expert witness and that his evidence was received by the Court as a witness as to fact.

7.2 The Plaintiff’s written submissions go so far as to dispute that Mr. Ryan is precluded from holding himself out as an Architect or carrying on business in that capacity when he is not registered on the RIAI Register of Architects.

7.3 The Plaintiff’s written submissions completely ignore the express provisions of section

18 of the Building Control Act, 2007 which expressly provides as follows: -

“(1) Subject to subsections (3) and (4), a person who-

(a) not being registered under this Part, uses the title ‘architect’, either alone or in combination with any other words or letters, or name, title or description, implying that the person is so registered,

(b) with intent to deceive, makes use of a certificate issued under this Part to such person or any other person,

(c) makes or causes to be made, any false declaration or misrepresentation for the purpose of obtaining registration under this Part, or aids or abets such action, or

(d) practices or carries on business under any name, style or title containing the word ‘architect’, unless he or she is registered under this Part, shall be guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.”

7.4 It is submitted that subsections (a) and (d) of section18(1) of the Building Control Act 2007 criminalise the conduct of an individual who has acted in the manner in which Mr. Ryan has acted.

7.5 Mr. Ryan gave evidence under oath that he was a practising architect and had been registered on the Register of Architects up to approximately 2017. This evidence was untrue for the reasons set forth above. In addition, in items of correspondence she confirmed under cross-examination authorising the issuing of, and which were opened to the Court, the Plaintiff insisted that fees of Mr. Ryan, whom she described as her “Architect”, be paid by the Defendants. The Court is referred to the Plaintiff’s solicitors’ letters of the 4th, 5th and 9th August 2021. In these proceedings, the Plaintiff seeks Special Damages, which include fees allegedly due to Mr. Ryan. The said claim is separate from any fee supposedly due to Mr. Ryan for his work as an “expert witness”.

7.6 Mr. Ryan accepted that he had given untruthful evidence to the Court. In consequence, the Court ruled that he would not be treated as an expert witness and would be a witness as to fact thereafter.

7.7 As the Plaintiff had treated Mr. Ryan as her expert witness, and Mr. Goodwin, Architect, as a witness as to fact, who gave evidence in that capacity, it is submitted that no expert evidence has been adduced on behalf of the Plaintiff. It is important to emphasise again that Mr. Goodwin’s evidence to the Court was also based on erroneous assumptions, similar to those of Mr. Ryan, particularly in respect of the location of the DPC in the party wall between yy and xx. In his report of the 11th November 2022, Mr. Goodwin, at page 5, referred to the “original damp proof course”

in the party wall, as being at “garage floor level”.

7.8 Mr. Goodwin stated in his evidence that below DPC level, a wall would be prone to damp. Similar evidence was given by Mr. Ryan.

7.9 It is also submitted that, aside from the issue of the false evidence he gave, and his lack of professional standing, there was a fundamental reason why Mr. Ryan ought not to have been called as an expert witness. Evidence heard by the Court established beyond any doubt that he was hopelessly and irredeemably conflicted. The Plaintiff testified that she had known Mr. Ryan over a period of approximately 20 years and had retained Mr. Ryan’s services on other occasions. Mr. Christie told the Court he had a professional association with Mr. Ryan extending over 30 years. As detailed hereinbefore, Mr. Ryan was intimately involved with the Plaintiff and Mr. Christie in relation to the Defendants’ development prior to and subsequent to the commencement of the works.

7.10 It is submitted that relevant caselaw is clear regarding the duties and obligations of an expert witness. In Duffy v. McGee [2022] IECA 254, Collins J engaged in a comprehensive analysis of the law relating to expert witnesses. It is sufficient to cite one paragraph from the judgment. At paragraph 26, Collins J stated:

“Where it appears that an expert is unable and / or unwilling to comply with his or her duty to give objective, impartial and independent evidence… then in my view their evidence should ordinarily be excluded as inadmissible.”

It is submitted further that in light of the evidence heard by the Court, the principle enunciated by Collins J clearly applies to Mr. Ryan.

7.11 Furthermore, in his recent decision in Kennedy & Ors. v. An Bord Pleanála & Ors. [2024] IEHC 570, at paragraph 56, Humphreys J stated:

“Expert opinion by an expert witness is only admissible if there is sufficient independence on the part of the [witness]: see O’Donnell J in Emerald Meats Limited v. The Minister for Agriculture, Ireland & The Attorney General

[2012] IESC 48, [2012] 7 JIC 3001 (Unreported, Supreme Court, 30th July 2012), at para. 28, and summary of the law in Environmental Trust Ireland v.

An Bord Pleanála [2022] IEHC 540, [2022] 10 JIC 0305 (Unreported, High

Court, Holland J., 3rd October 2022) and caselaw referred to…”

7.12 Without prejudice to the submissions in Section 1 above, if the Court was to have any regard to the evidence given by Mr. Ryan, the Court must determine what weight should be given to his evidence, in respect of which no objective evidence has been adduced and such claims which have been advanced by Mr. Ryan on behalf of the Plaintiff have been shown by expert evidence adduced on behalf of the Defendants to be erroneous and not tenable.

7.13 For the purpose of emphasising the relevance and importance of the foregoing consideration, it is appropriate to again highlight to the Court the content of the email communications issued by Mr. Ryan to Mr. Maguire, including Mr. Ryan’s email of the 4th August 2021, which has already been referred to hereinbefore. The said emails reveal the complete partiality exhibited by Mr. Ryan in his dealings with Mr.

Maguire and in which he effectively became an advocate for the Plaintiff and her imperious demands.

7.14 It is also appropriate to highlight that the report actually furnished by Mr. Ryan on behalf of the Plaintiff does not contain the standard declaration that he fully appreciates his duty is to the Court, and that his evidence, as an expert, is independent and uninfluenced by the exigencies of the litigation and the personal views of the Plaintiff. It is noted that Mr. Ryan was unable to tell the Court, under crossexamination, when he had agreed to act as an expert witness.

7.15 The submissions made on behalf of the Plaintiff also claim that independent of the issue of being registered on the Register of Architects, Mr. Ryan has the same status as the experts called on behalf of the Defendants.

7.16 This submission is entirely erroneous. To accept it would be for the Court to permit itself to be led into serious error by the Plaintiff.

7.17 It is the case that a qualification from Trinity College Dublin or Bolton Street is not in itself sufficient for an architect to be placed in the Register of Architects. A postqualification professional practice examination is also required. No evidence was before the Court to prove that Mr. Ryan has undertaken the post-qualification professional practice examination, which would entitle him to be registered on the Register of Architects.

7.18 It is also submitted that where an Architect has not been on the Register of Architects for a period of two years or more, he/she is required to undergo a re-examination process before being entitled to be re-registered on the Register of Architects.

7.19 There is also the requirement for each person on the Register of Architects to undertake a minimum of 40 hours of Continuing Professional Development (CPD) in each year of practice. Failure to do so will result in the removal of the individual from the Register of Architects. See RIAI Registered Architects’ CPD Policy and RIAI Website – link provided.

7.20 It follows from the foregoing that retired architects, such as the Plaintiff claims Mr.

Ryan to be, are not entitled to hold themselves out as Architects, or carry on such a business.

7.21 It is submitted that Mr. Ryan does not therefore have the same status as the expert called on behalf of the Defendants.

8. ALLEGED DAMAGE TO THE HEDGEROW

8.1 The Plaintiff in paragraph 5 of the Equity Civil Bill claimed that the alleged agreement, which she reached with Mr. Connolly included, a term that the Defendants would not interfere with or damage the mature evergreen hedge, which is on the boundary between the Plaintiff’s and the Defendants’ respective properties.

8.2 The Defendants deny that damage was caused to the hedgerow and that the evidence actually adduced by the Plaintiff showed no more than unearthed roots of the hedgerow which could be readily covered with topsoil with the hedgerow continuing in place, had the Plaintiff permitted.

8.3 Mr. Connolly also gave evidence that the hedgerow had been planted by the First Named Defendant. This was not denied by the Plaintiff.

8.4 In addition, the Plaintiff failed to call any expert witness to give evidence concerning this element of her claim. As the hedgerow remains in place, it is submitted that this element of the Plaintiff’s claim should also be dismissed.

9. THE WINDOWS ON THE SOUTHEASTERN SIDE OF THE PROPOSED EXTENSION TO BE MOVED TO THE OTHER SIDE OF THE APEX

9.1 The Defendants accepted that this issue was raised by the Plaintiff when Mr. Connolly visited the Plaintiff’s premises in the summer of 2019. On being made aware of the Plaintiff’s concern about being overlooked, Mr. Connolly and the Third Named Defendant confirmed that they would make the change requested.

9.2 The extension as built does not involve windows overlooking the Plaintiff’s property.

9.3 To the extent the Plaintiff advances her case on the basis of an alleged agreement in the terms pleaded in paragraph 5 of the Equity Civil Bill, the consideration moving from the Plaintiff to support the alleged agreement is stated to be that she would not object to the Defendant’s planning application.

9.4 In submitting that Mr. Connolly completely rejected that any such agreement had been reached, it is appropriate to refer the Court to the pleading in paragraph 3 of the Defendants’ Defence, which is in the following terms: - “3. There is no distinction in law or in fact between the making of an objection/submission in the Planning and Development Act, 2000, as pleaded by the Plaintiff in paragraph 5 of the Indorsement of Claim and could never amount to consideration, in circumstances where a submission/observation was made to the planning authority on foot of the Defendants’ planning application”.

9.5 It is submitted that the pleading is a correct statement of the law in respect of which the Plaintiff failed to adduce any evidence or identify any judicial authority to gainsay the pleading. It is therefore submitted that no valid or sufficient consideration passed from the Plaintiff to support the alleged agreement, which is itself denied. The Plaintiff, in lodging her submission with the Planning Authority, was in law objecting to the Defendants’ planning application.

9.6 It is also submitted that no evidence was adduced by or on behalf of the Plaintiff to show that the meeting between the Plaintiff and Mr. Connolly occurred with the intention of creating legal relations in the form of the alleged agreement, without which there can be no enforceable agreement.

10. CONCLUSION

10.1 It is submitted that having regard to the evidence adduced during the hearing and in light of the above submissions, the Court should dismiss the Plaintiff’s claim.

10.2 It is also submitted that the Court should award the costs of the proceedings, to include all reserved costs, to the Defendants, to be adjudicated in default of agreement. It is evident that the Defendants, from as early as the 4th August 2021, made every reasonable effort to compromise the issues on amicable and neighbourly terms and with a view to avoiding litigation, which the Plaintiff inexplicably and unreasonably rejected.

TED HARDING S.C. EAMON MARRAY S.C.

Word count:

9,942words

22nd October 2024.

Decision

110. The plaintiff claims there was a formal agreement between neighbours with regard to the proposed works at their property. The plaintiff gave evidence that she entered into this agreement with the first, second and third named defendants in 2019 such that she agreed not to object to planning permission for works at their property provided that there would be no trespass onto the property of the plaintiff; that the works would be conducted entirely in the curtilage of the property; that the mature evergreen hedge would not be interfered with or damaged; and that the windows on the south eastern roof be moved to the other side of the apex; and certain other minor issues that there would be no ingress or overhanging onto the property of the Plaintiff;

111. The Court is satisfied having heard the evidence of the parties that there was no formal agreement to this effect, and indeed nothing was reduced to writing. At best there was an understanding between neighbours as to the best manner in which to proceed in light of the plan to develop the neighbours’ property. As set out in Paul Anthony McDermott’s SC Contract Law (Second edition) and cited on behalf of the defendants “Generally good neighbours will assist each other without ever imagining that they are creating legally binding relations. One would expect the courts to be slow to permit the black letter principles of contract law to cross the garden hedge.”

112. The Court is further satisfied on the basis of the evidence heard that any such understanding was overtaken by discussions which took place at a further meeting between the agents of each party on 20 July 2021. In the course of that meeting a drawing was made on the wall in the neighbour’s property. Mr. Cashin and Mr. Ryan attended this meeting, and a copy of this drawing is annexed to this decision. This drawing shows the garden wall that Mr. Ryan had requested to be built and that the dotted line was the boundary line between the two properties. That line represented the centre line of the old nine-inch block wall. Mr. Maguire in his evidence said that the confirmed width of the path would be 820 millimetres as requested by Mr. Ryan.

Mr. Maguire gave evidence that that measurement doesn't change in the course of any construction work. He said that it was on the basis of the agreement reached at that meeting on 20 July 2021 that the nine-inch wall was knocked and that the defendants attempted to carry out the further work. Following the demolition of the nine-inch wall, he gave evidence that it was planned that the new four-inch wall would be brought all the way through the garden, as requested by Mr. Ryan. In his evidence he said that all of those walls straddled the boundary previously and that their intention was to build inside the boundary lines. Otherwise, he said that Mr. Ryan wanted a separate wall which is what they were planning to build. During the course of his evidence Mr.

Maguire confirmed that the pre-existing foundation straddled the boundary of each property. He said that was their starting point and he referred to an August 2021 photo in this regard. He gave evidence that the excavation was carried out with the knowledge of the plaintiff, insofar as these matters had been agreed at meetings with Mr. Ryan. He explained that you need strong foundations to replace a garden wall, he gave evidence that they would put a decent foundation under any wall.

113. He acknowledged that following on from pouring the foundation the plaintiff requested that same be removed and ultimately it was removed in November 2021. He gave evidence that Mr. Ryan asked for the foundation to be cut and he referred to photograph number twenty-seven in this regard. He said that permission was requested to backfill under the path however same was never granted. He said as a consequence of what occurred they had to alter construction and proceed in a different way. There are no photos of the garden wall as it was never built as there was no agreement in relation to same.

114. The Court accepts Mr. Maguire’s evidence with regard to the agreement or understanding reached on 20 July 2021. The drawing referred to above is clear, unambiguous and undisputed evidence of the plan for building of the garden wall. The Court accepts Mr. Maguire’s evidence that it is usual that such a wall, where built at the party line, would have foundations either side of the party line. It is abundantly clear that such a wall could not be properly built without solid foundations.

115. The Court notes that the plaintiff was unhappy with the work on the foundations following commencement of same and that she immediately called for cessation of further work. She claimed that the foundations encroached on her property, and she sought cutting and removal of same. The Court is satisfied that insofar as these foundations encroached on the plaintiff’s property, such encroachment was entirely anticipated by the agreement reached between the parties’ agents on 20 July 2021, as depicted in the contemporaneous drawing. The Court is of the opinion that it would be somewhat nonsensical to construe the contemporaneous drawing as being that of a wall without new foundations to support it, which appears to be the contention put forward by Mr. Ryan, who gave evidence for the plaintiff. The Court notes that there is a difficulty with the nature of the evidence called on behalf of the plaintiff in this regard as unfortunately Mr. Ryan is not on the Register of Architects. However, even if the Court ignores that aspect of the matter there really is no basis on which the Court could accept that the new party wall was to be constructed on old foundations, or indeed, foundations other than those which straddle both properties, by necessity of good construction, where a wall is to be placed at the party line.

116. The correspondence which follows from these events makes for difficult reading and the Court is satisfied that the plaintiff adopted an unnecessarily aggressive, threatening and litigious approach from the outset. The same day deadline set in the first letter is most unreasonable in all the circumstances. It is clear that the defendants made efforts towards resolution of the matter from the outset, as can be seen from their solicitor’s first letter and subsequent correspondence. It is notable that the plaintiff refused to engage in mediation and the defendants had to motion the Court in this regard. The Court accepts the contention proffered by the defendants that the plaintiff’s conduct of this matter shows a determination on her part to pursue the claim to trial. This is a most unfortunate approach to take to any dispute, least of all a dispute between neighbours.

117. The Court is satisfied based on the evidence heard that the defendants were not in a position to remedy matters with either the hoarding or the path or the hedgerow, as no consent was forthcoming from the plaintiff to carry out these works. Further, the plaintiff admitted having taken no action to reinstate her property and as such she failed to mitigate her alleged damage or loss.

118. The Court does not find it necessary to make any ruling on alleged breach of planning permission in circumstances where this complaint was dealt with by the planning authority, and the file was closed.

119. The plaintiff through her solicitors and by Notice dated 2 March 2022 notified the defendant’s solicitors that the works carried out by the defendants caused dampness to and in the plaintiff’s garage and its wall. It was alleged that the construction of the floor slab was without a Damp Proof Membrane (DPM) such that the floor was above the level of the Damp Proof Course (DPC) in the party wall and that this was causing permanent dampness to the plaintiff’s property. It was alleged that the work represents poor and substandard building practice and poses a permanent long-term threat to the integrity of the plaintiff’s home.

120. The Court heard evidence from each expert put forward by the parties on this issue, and each side directly contradicted the other in this regard.

121. Mr. Paul Keenan FRIAI, architect and an independent expert nominated at the direction of the Court, carried out a core drill test in the party wall to establish the absence or presence of a DPM. Mr. Keenan also ascertained the precise position of the DPC in the party wall between the two properties. The DPC was found to be approximately 260mm above the garage floor in the plaintiff’s property. Mr. Keenan also took moisture readings which were read into evidence. These readings indicated a higher level of moisture below the DPC in the garage wall. There were no readings available from earlier years for the purpose of comparison.

122. The Court was brought through the diagram of the core sample which is set out in Mr. Keenan’s report. He also brought to court the physical materials contained in the floor. Mr. Keenan outlined that there were three membranes in the defendant’s floor. He also confirmed that the DPM material appeared to be against the block wall though the DPM was not opened up to establish that. The Court is satisfied based on the evidence heard that the wall in the plaintiff’s property below the DPC would be susceptible to wetness, and indeed this is evident from the readings taken by the court appointed expert. While there is some efflorescence, there is no significant level of dampness above the DPC in the plaintiff’s wall. There is no evidence of dampness at the defendant’s property. The Court does not accept the contention that there was anything below standard about the construction of the defendants’ floor, as alleged or at all. The Court does not accept that the plaintiff’s have proved on the balance of probabilities that dampness (insofar as it exists) in their garage wall has been caused by the defendants’ construction works. There was no evidence before this Court that the defendants in fact failed to comply with Building Regulations. As such the Court finds against the plaintiff on this issue.

123. In light of the above, the Court dismisses the claims brought by the plaintiff with an order for costs in favour of the defendants to include reserved and discovery costs, to be adjudicated in default of agreement.

Appearances:

James Dwyer SC and Conor Kearney BL instructed by Blake Horrigan Solicitors for the plaintiff.

Ted Harding SC and Eamon Marray SC instructed by Hennessy & Perrozzi Solicitors for the defendants.