Court dismisses architect's liability for undiscoverable defects but allows limited damages for design flaws and accepted defects.

THE HIGH COURT

[2025] IEHC 522

Record No.: 2018/6876P

Between/

ASHDRUM LODGE LIMITED T/A KIERNAN HOMES

Plaintiff

-and-

AYSAR BARBOUTI

Defendant

-and by order-

DAVID GILLIGAN and GILLIGAN ARCHITECTS LIMITED

Third parties

JUDGMENT of Ms Justice Siobhán Stack, delivered on the 21st day of August, 2025.

Section 1: Introduction

1.1 This is a claim by the Defendant (“Ms. Barbouti”) against the Third Parties for the sum of €1,244,000 (exclusive of VAT) in damages in respect of their failure, in their capacity as supervising architects, to discover defective works carried out by the Plaintiff (“the Contractor”) over the period from late 2013 to 1 August, 2017, together with an ancillary claim for quantity surveying fees in the sum of €89,284.30 (€72,588.86, plus VAT @ 23%).

1.2 The proceedings originally commenced as a claim by the Contractor against Ms. Barbouti for payment for the sum of €1,444,593.00 ex VAT, said to be due and owing in respect of works carried out to Derrybawn House, Laragh, County Wicklow (“the House”), an outbuilding (“the Warehouse”), and the walled garden of that property, which I will refer to in this judgment as “the Orchard” as this is the term used in much of the documentation issued by the Contractor in connection with the works.

1.3 Ms. Barbouti, in her defence to the Contractor’s claim, asserted that the sums were not properly due and owing - essentially claiming that she had been overcharged - and she also counterclaimed for, inter alia, compensation for defects in the works carried out by the Contractor.

1.4 The Third Parties were joined in February, 2020. The first named Third Party, Mr. Gilligan, is the principal and Director of the second named Third Party and the claim against both Third Parties centres on his alleged acts and omissions.

1.5 The substantive proceedings as between the plaintiff Contractor and Ms. Barbouti were opened and ran for several days before settling on Day 4. Thereafter, the proceedings continued as a third party action brought by the defendant against the Third Parties for damages for negligence and breach of contract and ultimately ran for 28 days in total. Mr. Kiernan, the principal of the plaintiff, had already given evidence in the main proceedings and was recalled to give evidence in the third party action. Like Mr. Gilligan and Ms. Barbouti, he features prominently in the narrative.

1.6 Derrybawn House is a two-storey villa-style residence outside the village of Laragh in County Wicklow, sitting on approximately 100 acres of parkland and forest. It dates back to 1780, is constructed around a paved and walled courtyard, and is a protected structure.

1.7 Although it had apparently been renovated in the mid-2000s, by the time Ms. Barbouti purchased it in 2013, it had been vacant since 2008, and had been subject to significant water ingress through the roof, resulting in damage to the interior of the House. The wooden floors had swollen and buckled, and it was anticipated that the electrics needed to be made safe. Although the works which the Contractor was retained to do in November, 2013 consisted of essential strip out works and repairs, they ultimately expanded to comprise an extensive refurbishment of the interior of the House, the repair of the historic perimeter walls and the construction of a tiered, several acre walled garden (“the Orchard”), comprising reinforced stone walls, the construction of a thermostatically controlled Warehouse, the construction of a road across the Derrybawn mountain (“the Forest Road”) together with other, less extensive access roads within the estate, a courtyard, external sheds, and the installation of bespoke metal works railings, gates and pergolas. I will refer to all of these matters cumulatively as “the Works”.

1.8 It is a striking – and problematic – feature of the case that, while the cost of the Works expanded from an initial quotation of €360,000 (which admittedly envisaged, by way of the provision of a schedule of rates and a provisional sum, that the figures for the Works even then in contemplation, would exceed that sum), to a point where Ms. Barbouti had already paid approximately €5 million and the Contractor was seeking approximately another €315,000 by way of interim payment, at no point was a written building contract put in place.

1.9 The evidence is to the effect that, once it had become clear in early 2014 that a full renovation was about to commence, Mr. Gilligan e-mailed Ms. Barbouti at a very early stage to propose that the parties should adopt the Standard Blue Form RIAI Contract – which at the time was the 2012 edition – but this contract was never completed and signed. Ms. Barbouti claims that, in the circumstances, there was simply an agreement that the Contractor would carry out the Works and that she would pay, and that either party could unilaterally determine the Contract at any point. I return to this claim and its significance later in the judgment.

1.10 However, what is not in dispute is that the Works were conducted on a rolling basis, that is, with instructions being given by Ms. Barbouti from time to time as to additional Works that she required done, and with those Works being carried out. I am satisfied that it was Ms. Barbouti’s intention from the outset that the Works would be expanded to reflect her wishes from time to time, as evidenced by the fact that the initial quote given by the Contractor was based on rates for anticipated works, such as carpentry, painting and decorating, there being no definite scope of Works by reference to which a precise Contract Price could be identified.

1.11 That quote, which was sent to Mr. Gilligan on 25 February, 2014, makes no mention of the Warehouse or the Orchard. Nevertheless, in the Contractor’s first invoice, which issued on

11 December, 2013, a sum of €3,450 was included for landscape works. The second invoice, issued on 13 January, 2014, includes the sum of €550 in respect of the fees of a surveyor to conduct a survey to the Orchard, which seems to be a reference to the entire walled garden and not just the Orchard on the lower level. This demonstrates that it was Ms. Barbouti’s intention from the outset to renovate not just the House, but the Orchard and, in respect of that aspect of the Works also, to give instructions on a rolling or ad hoc basis for the extensive renovations which would be required.

1.12 Interestingly, the second invoice also shows that another unusual feature was present from the very start. From December, 2013, Ms. Barbouti was instructing the Contractor to purchase items for which she would reimburse it, as opposed to paying for them directly. So, in December, 2013, and again in January, 2014, she instructed the contractor to arrange for the delivery of oil to the premises – I assume to service the caretaker’s house – on the basis that the Contractor would be reimbursed after it was delivered. This practice continued to the very

conclusion of the dealings between the parties, with the Contractor’s records from 2017 showing Ms. Barbouti ordering items such as televisions for the House – which would normally be regarded as a fit out and not a matter for the building contract – but which in this instance were channelled through her contract with the Contractor. Essentially, the Contractor was asked to pay for and arrange delivery of certain items. The Contractor would then seek reimbursement of the amounts paid out, together with a percentage (“profits and attendances”) reflecting the work done in arranging the necessary delivery or carrying out any necessary installation, as part of the interim claims or Valuations which were submitted to Mr. Gilligan from time to time for certification.

1.13 The practice also developed of Ms. Barbouti instructing specialist subcontractors directly for various bespoke items – for example, gates and railings for the garden - with the subcontractors then invoicing the Contractor who included it in its claims for payments. When those claims, or Valuations, were submitted by the Contractor to Mr. Gilligan, he would then issue an interim certificate in the form used for the Standard RIAI Blue Form Contract, which he sent to Ms. Barbouti’s solicitors, Messrs. Gartlan Furey. Ms. Barbouti did not have an Irish bank account so payments were made through Gartlan Furey’s client account, once they had contacted her to authorise the payment indicated in the particular certificate.

1.14 Throughout the Works, Ms. Barbouti was caring for her mother in London, so she would travel to Derrybawn House by means of an early flight, spend the day at the property, and return to London that evening. According to her caretaker, Mr. Gordon Soule, these visits were “flying visits” and were often unannounced. The evidence was that Ms. Barbouti would walk through the property giving instructions. She appears to have been very hands on and was described by Mr. Kiernan in his evidence as “very clued in” and keen to take a significant role herself in the management of the renovation project. She also appears to have had a good eye for detail: when she walked through the House in early 2016 on receipt of the snag list which was being drawn up in anticipation of the issue of a Certificate of Practical Completion in relation to the House, so that she could take possession of it while the remainder of the Works were ongoing, she identified a significant number of additional items which were added to the list at her request.

1.15 Ms. Barbouti also had quite definite ideas as to finishes and a clear idea of her own tastes. It goes without saying that Ms. Barbouti was entitled to request high quality finishes and to expect that the work would be done to a high standard. That is not in issue. Indeed, it appears Mr. Gilligan in particular was very appreciative of the high standard finishes required and, at the end of his evidence, very deliberately indicated that he wanted to state the Derrybawn House, as completed, was beautiful. This is borne out by the fact that no major issues were raised as regards the Works so far as the House was concerned. The total claim made for defects in relation to the House was just over €35,000, an insignificant sum in the context of the monies spent and most likely squarely within the realm of normal snagging, though I do not have to decide that as any claim in relation to the House was withdrawn on Day 13. The renovation of the House, therefore, was successful and a large part of the credit for that must go to Ms. Barbouti herself as it was her design choices which are reflected in the renovation.

1.16 Nevertheless, it must be said that the manner in which Ms. Barbouti gave instructions to carry out the Works was quite unconventional. In his first report of May, 2021, the Third Parties’ expert architect, Mr. Brian O’Connell, described the process by which Ms. Barbouti instructed further works, sometimes directly with the Contractor and without consultation with Mr. Gilligan, as following an “erratic and unpredictable” timeline, and said that the Third Parties managed this situation as best they could in the circumstances. On a review of the evidence, this a fair characterisation of how the scope of the Works evolved, how matters were dealt with by Ms. Barbouti, and the position that Mr. Gilligan found himself in.

1.17 Works commenced in the Orchard in 2014. At the time, and as is evident from the photographs, the Orchard was overgrown and needed to be cleared. As the vegetation was cleared, it became obvious that the walls in the garden needed significant repair. Insofar as Ms. Barbouti suggested in her evidence that repairs to the walls were required due to the manner in which the overgrown vegetation was cleared, I do not accept that evidence: it is clear that the historic perimeter walls were in poor repair from the outset, with significant breaches in some of them that needed to be built back up.

1.18 It also became clear that new retaining walls were required in the middle section of the Orchard to cope with the significant slope on the site, and external consulting engineers, Messrs. Moloney Miller, were retained to design the concrete core of these walls, which were subsequently clad in stone to match the historic walls. Moloney Miller did not, however, provide any services in respect of the stone cladding, which was subsequently affixed by the Contractor, who retained expert stone masons for that purpose.

1.19 The network of new and old walls in the Orchard eventually extended to 1 km, averaging 3m in height, and numbered 15 walls in total. For convenience, throughout the trial, the walls were referred to by their numbering on a map prepared for the trial by Mr. Gilligan, on the basis of a classification of the walls suggested by Mr. Keenan, the expert architect who gave evidence for Ms. Barbouti, and on which further information about the nature of the walls

– in particular the extent to which the historical walls had been reconstructed as part of the Works – was provided by Mr. Gilligan.

1.20 The historical walls were, broadly speaking, the perimeter walls (1, 2, 3, 5, 6, 12, and 11), although there were historical walls in the upper, terraced section also (walls 10, 13, part of 14 and 15). Of these, there were significant breaches or gaps in some of the historical walls (such as the two portions near old gates in the lower part of Wall 1, and a large portion of Wall 3). As the work of clearing overgrown vegetation from those older walls progressed, it could be seen that they required repair to build up the top section of some (walls 10, 13, 14 and 15), while in other walls, whole sections had to be fully reconstructed (Walls 1, 3, and 11, along with a remnant of what is depicted as Wall 8, which, in the main is a newly constructed retaining wall). Historical walls 2, 5, 6, and 12 (which are the perimeter walls on the eastern and northern boundaries of the Orchard) did not require repair or reconstruction.

1.21 Walls 4, 7, 8, and 9 were newly built, Walls 4, 8 and 9 being the retaining walls already referred to. Wall 8 had a remnant of a historical wall at the eastern end which required to be reconstructed. In addition, a large section of wall in Wall 1, which was to contain the gated entrance to the Orchard, located near the Warehouse, also had to be built. This section was still under construction when the dispute between Ms. Barbouti and the Contractor commenced in early August, 2017.

1.22 The most significant issue in the case relates to what was discovered to have been defective bedding mortar used in at least some, if not all, of the newly constructed walls and in the newly constructed sections of historic walls. A claim for compensation against the Contractor for those defects, which it is accepted arise from incorrect mixing of the mortar and which are therefore defects of workmanship, was made by Ms. Barbouti in her counterclaim against the Contractor. This, along with the Contractor’s claim for monies due and owing and other sums said to arise from Ms. Barbouti’s unlawful dismissal of the Contractor in August, 2017, was settled on Day 4 of the trial.

1.23 Thereafter, the claim for compensation for defects in the construction and reconstruction and repair of the walls continued against the Third Parties. The central issue in the third party action is whether Mr. Gilligan ought to have noted the defects in the bedding mortar during his periodic visual inspections of the Works. He denies that the defects in the bedding mortar were patent and furthermore contends that, as Ms. Barbouti terminated her contract with the plaintiff before the defects period had even commenced, she has, by her actions, prevented him from ascertaining the defect during the currency of the building contract and then directing the Contractor to remedy it.

1.24 Although that is the central issue in the case, a very large part of the hearing was taken up with issues surrounding the accumulating cost of the Works, whether Mr. Gilligan properly scrutinised the interim Valuations submitted by the Contractor, whether the Contractor had undertaken not to charge more than a certain sum, the circumstances in which Ms. Barbouti terminated the contract and the Works and the means by which she did ‘so, and various assorted disputes of fact as to the dates on which certain meetings occurred, what was said, and so on.

1.25 Having reviewed in some detail the evidence from what ultimately turned out to be a

28 day trial, the relevance of many of these matters to the issues between Ms. Barbouti and the Third Parties, or to any cause of action she might have against the Third Parties, is not entirely clear. However, in deference to the time spent on these issues, I now propose to outline the sequence of events leading to the dispute between Ms. Barbouti and the Contractor, which in turn led to the joinder of the Third Parties and Ms. Barbouti’s dispute with them arising from their role as Architect supervising the Works.

Attack on Mr. Gilligan’s character

1.26 Before doing so, I want to deal with an important issue which Ms. Barbouti was invited to withdraw but refused. Ms. Barbouti gave evidence that she understood from her landscape garner, Mr. Adam English, that, at the very beginning of the Works, he heard Mr. Gilligan say to Mr. Kiernan that there was a lot of money in the project for both of them and that Mr. Kiernan should charge well and Mr. Gilligan would approve it. He said that Mr. Gilligan was rubbing his fingers together to indicate that there would be a lot of money available. This is a wellknown gesture indicating that the person making it intends to “cash in” or take advantage. Mr. English repeated this in his evidence.

1.27 I have no hesitation in saying this evidence was false. Apart from the very unlikely prospect of two people who wished to take advantage of another discussing that opening in the presence of a person who knew the person in question and was indeed a trusted associate or friend, Mr. Gilligan’s actions are entirely to the contrary.

1.28 I have no doubts as to Mr. Gilligan’s bona fides and indeed his honesty. Indeed, he might be characterised as almost naïve. It was only in December 2016, when Ms. Barbouti requested what Mr. Gilligan interpreted as an estimate of the final cost, that he drew attention to the fact that they had never agreed on his fees. Even then, he suggested that it be done as an hourly rate rather than a percentage of construction cost. This was intended to ensure that the Client would pay the lesser of the two sums, and was a response to her concern about costs.

1.29 In addition, even though he did not charge fees for the entire period from 2013 to his dismissal on 21 December 2017, he incurred out-of-pocket expenses of €7,633.42. While the bulk of this related to mileage costs, presumably incurred in travelling to Laragh approximately

100 times in that period, he also incurred out-of-pocket expenses in connection with planning applications, and the related costs of mapping and advertisements.

1.30 Mr. Gilligan did not in fact raise an invoice for his fees until after he had been dismissed. When, through his solicitors, he pressed for payment over a year later, by letter dated 4 April 2019, he received a letter (sent to him personally) from Ms. Barbouti’s solicitors advising him that Ms. Barbouti was considering joining him as a third party and advising him to notify his insurers.

1.31 The result of what I would class as Mr. Gilligan’s naivete in failing to get agreement for his fees and in failing to invoice Ms. Barbouti from the outset, is that he has never been paid a single penny for his approximately 100 site visits and other work on the project. This is because he did not raise an invoice until 17 January, 2018, shortly after he had been dismissed.

1.32 Mr. Gilligan’s approach to his fees is utterly inconsistent with his alleged intention to “cash in” on a wealthy client, as asserted by Mr. English. I accept that Mr. Gilligan is entitled to a clear finding on an allegation of dishonesty and, furthermore, it is not evidence that might have been given on the basis of any kind of misunderstanding or subjective view of events. In my view, Mr. English’s evidence on this point is false.

Section 2: Leadup to the dispute

Certificate of Practical Completion relating to the House and discussions about overall costs

2.1 The Works had been continuing for over two years when steps began to be taken to complete the Work on the House and hand over possession of it to Ms. Barbouti. In March, 2016, Mr. Gilligan prepared a pre-completion snag list in order to identify any defects in the Works to the House, with a view to issuing a Certificate of Practical Completion in relation to the House. Ms. Barbouti and her trusted caretaker, Mr. Gordon Soule, subsequently walked through the House and made numerous additions to that snag list.

2.2 On 14 November, 2016, Mr. Gilligan issued a Certificate of Practical Completion in relation to the House, and only snagging remained. (There was, originally, a claim for a sum of €35,000 in respect of defects in the Works to the House, but this was dropped.)

2.3 This was, essentially, the delivery up of Partial Possession of the site to Ms. Barbouti. Mr. Brian O’Connell, the expert architect called on behalf of the Third Parties, gave evidence that this was a sensible and pragmatic solution given that the works in the House were essentially complete. Although certain complaints were made in the pleadings at one point that the issue of this Certificate was unlawful, this point was not pursued at trial.

2.4 It is clear from the evidence – discussed further in section 4 – that both Mr. Gilligan and Mr. Kiernan on behalf of the plaintiff were proceeding on the basis that the provisions of the Standard RIAI Blue Form Contract were applicable to the contract between the defendant and the Contractor, as least so far as payments, insurance, and liability for defects were concerned. As regards the Certificate of Practical Completion in relation to the House, Mr. Gilligan signed the Certificate on behalf of Gilligan Architects Ltd, the second named Third Party, which was on Gilligan Architects headed paper, entitled “Certificate of Practical Completion”, dated 14th November, 2016, addressed to the plaintiff, and identified the project as “Works to Derrybawn House, Laragh, Co. Wicklow”.

2.5 It contained three paragraphs, as follows: -

“1. In accordance with Clause 31 of the RIAI Articles of Agreement & Schedule of Conditions of Building Contract, we certify that subject to completion of outstanding items and/or making good to any defects, shrinkages or other apparent faults during the Defects Liability Period, that the above works were completed to the stage of Practice Completion to our satisfaction and the Defects Liability Period will end on 13th November, 2017.

2. We declare that a Certificate of one moiety of the retention of monies deducted under previous certificates will be issued in accordance with the Contract.

3. The employer is solely responsible for ensuring that the works are adequately insured from the date of this certificate.”

2.6 The reference to Clause 31 of the RIAI Articles of Agreement is a reference to Clause

31 of the Standard RIAI Blue Form Contract which provides that, when in the opinion of the Architect the Works are Practically Complete, “he shall forthwith issue a certificate to that effect and Practical Completion of the Works shall be deemed for all the purposes of this Contract to have taken place on the day named in such certificate.” It goes on to define “Practical Completion” as meaning “that the Works have been carried to such a stage that they can be taken over and used by the Employer for their intended purpose and that any items of work or supply then outstanding or any defects then patent are of a trivial nature only and are such that their completion or rectification does not interfere with or interrupt such use”.

2.7 Mr. Gilligan gave evidence, which I accept, that the House was finished, subject to minor snagging and was, save for one small bathroom on the ground floor, fit for occupation as a residence. The issue with the bathroom was that it had proved difficult to complete as there were so many services running under the floor that there was a difficulty finishing it and it was not fit for use. But the rest of the House was fit for occupation. In any event, no issue arises in relation to the House as any claim relating to that – and from the amount claimed alone I think it is fair to say it most likely related to snagging which could, and should, have been dealt with as part of the process leading to the issue of a Final Certificate in relation to the House - was dropped on Day 13.

2.8 In the Standard RIAI Blue Form Contract, the Defects Liability Period is to be specified in the Appendix. In this case, not only was the Contract never signed, but the Appendix was never completed. In section 4 of this judgment, I consider the issues arising from that so far as the defects in the Warehouse and the Orchard are concerned, but it is sufficient to note that the Certificate of Practical Completion in relation to the House indicates that it was intended to afford a 12 month Defects Liability Period in respect of the Works, so far as they related to the House. This would have expired in November, 2017.

2.9 It seems clear that, around the time of the issue of this Certificate of Practical Completion in relation to the House, Ms. Barbouti was becoming concerned about the costs of the Works. I say this for two reasons.

2.10 First, there is an email in evidence dated 30 November, 2016, in reply to an email from Mr. Gilligan about the cladding of planters in the Garden. Ms. Barbouti, having confirmed her agreement with that issue, added: “Could I get the outline of future expenses as relating to Derrybawn?” That email demonstrates that Ms. Barbouti had the ascertainment of the final costs of the Works in her mind at that stage.

2.11 Secondly, Mr. Gilligan gave evidence that, around the time of the issue of the Certificate of Practical Completion in relation to the House, he indicated to both Mr. Kiernan and Ms. Barbouti that he would be retaining a quantity surveyor to assist him in preparing a Final Certificate. He was unable to date this, and thought it might have been early 2017, but his best recollection was that it was around the time that Ms. Barbouti was looking for estimates of what it would cost to finish the Works and on that basis thought it was probably late 2016.

2.12 The question of whether that advice was given is dealt with below, in section 10, where I give more fully my reasons for accepting Mr. Gilligan’s evidence. I am satisfied that, while he did not previously advise that a quantity surveyor should be retained, it was at all times his intention to retain one in connection with the preparation of the Final Account and the issue of the Final Certificate. It seems likely that he specifically mentioned it to Ms. Barbouti as she was voicing concerns about costs.

2.13 But in any event, I think the fact that she had those concerns in late 2016 is evident from her email, and from the uncontested evidence that Mr. Kiernan in fact produced a draft Final Account, that it was sent to her by Mr. Gilligan, and that Mr. Kiernan met Ms. Barbouti in Derrybawn House on 13 December, 2016, to discuss it.

2.14 Ms. Barbouti gave evidence that the figure she was to get in response to her emailed request was to be a final figure, not subject to change, and she said that she made this clear to Mr. Gilligan and that he understood that. However, Mr. Gilligan says he does not recall this and that his understanding was that the figure would be, as Ms. Barbouti’s emails had requested, an “outline” of future costs.

2.15 In my view, Ms. Barbouti’s email is consistent with Mr. Gilligan’s understanding of what was being sought. In any event, as Mr. Gilligan explained, there would have to be quite a bit of work done in order to obtain a definite figure, including correspondence with subcontractors, in order to produce a definite figure. His view on that was more than borne out by the subsequent difficulty for the Contractor in producing a Final Account following summary termination of the contract, as invoices from sub contractors continued to arrive and, ultimately, were only dealt with as part of the Settlement reached with the plaintiff after the trial began.

2.16 I therefore accept Mr. Gilligan’s evidence – corroborated by Mr. Kiernan also - that only an estimate or ballpark figure was to be produced. This was a large project with several significant consultants and subcontractors, such as JV Tierney who were advising on mechanical and electrical matters, and Bushy Park Ironworks who made bespoke gates and railings for the Orchard at Ms. Barbouti’s specific request, and who had not as yet submitted all of their invoices. No final figure could be given by the Contractor until all of the relevant invoices had been received.

2.17 Furthermore, the Works were ongoing and it is the nature of construction work that additional costs can accrue. Indeed, as we shall see, Ms. Barbouti herself ordered new items and made changes to items already ordered, which is entirely inconsistent with her evidence that she understood she had a final figure.

2.18 In any event, Mr. Gilligan’s reply of 2 December, 2016, said that he would meet Mr. Kiernan the following Monday to see where he was with his figures. Mr. Gilligan also gave rough estimates for monies due to Bushy Park Ironworks and Molony Millar. It is, in my view, quite evident from the email that the figures being put forward were in the nature of “ballpark” figures only.

2.19 The following Monday, 5 December, 2016, Mr. Gilligan was on site as evidenced by pictures that he recorded as having taken on that day. However, he had no records to confirm whether or not he had met Mr. Kiernan. He said, if he did meet him, he most likely would have asked him how he was getting on in putting the figures together, but he couldn’t recall if he had met him or not. Whether Mr. Gilligan did or did not meet Mr. Kiernan on the following Monday, is, however, in my view, unimportant because it is accepted that Mr. Kiernan in fact produced an estimate of what the ultimate costs of the Works would be in a document which he called “Draft Final Account.”

2.20 Mr. Kiernan sent this to Mr. Gilligan as the attachment to an email dated 13 December, 2016. In that email, Mr. Kiernan stated: “Hi David, Please find attached our draft final account for Derrybawn based on what information we can estimate to date. Thanks, Aidan."

2.21 Later the same day, Mr. Gilligan forwarded Mr. Kiernan’s email and attachment to Ms. Barbouti by email, stating: “I attach projected final account received from Aidan.”

2.22 Ms. Barbouti did not respond to that email and the attachment consisted of a lengthy document itemising all of the individual items in respect of which a figure was given. The bottom line figure was €922,722 including VAT. However, Mr. Kiernan gave evidence that the many items marked in blue were subject to change. The figure of €922,722 was partly comprised of estimates, that is, figures which had not been finalised.

2.23 Mr. Gilligan said he did not read the December, 2016 Draft Final Account when it was produced as final figures. It was a draft account with figures which were merely provisional, with certain items highlighted in blue, which indicated that they could change. He said that the plaintiff would not have been able to give final figures at that point without having discussions and negotiations with all of the subcontractors. I accept his evidence on that and indeed I think it is evident from the document itself, and from the emails requesting the sending of the Draft Final Account that the figures in it were in the nature of estimates and there was no commitment by the Contractor that those would be the final figures.

2.24 In addition to emailing the December 2016 draft Final Account to Mr. Gilligan, Mr. Kiernan met Ms. Barbouti in the kitchen in Derrybawn House in December, 2016. Mr. Gilligan was not there. Mr. Kiernan said he went through the draft Final Account with Ms. Barbouti, that he explained why some of the items were shaded in blue, and that there was a lot of discussion about the project. He said Ms. Barbouti took the draft final account, which is A4 size and runs to over 40 pages, and he understood that she was to source additional finance.

2.25 By contrast, Ms. Barbouti says that she met Mr. Kiernan outside and it was raining. He gave her a single page with a final figure on it which she put in her handbag and she told him: “This is it, this is all the money you are going to get out of me, you are not going to get another penny out of me, please do not cross me, you’re not going to like what happens.”

2.26 This piece of paper was not mentioned in Ms. Barbouti’s affidavit of discovery prior to trial, even as a document which had existed but could no longer be found. Ms. Barbouti said she had lost it. However, Mr. Kiernan was adamant that there was no such piece of paper. He described Ms. Barbouti’s evidence on this point as “totally nonsense” and that it “certainly didn’t happen”.

2.27 I prefer his evidence to that of Ms. Barbouti. Mr. Kiernan was a successful builder. He had gone to the trouble of preparing a lengthy document and indicating on it the items he thought might be likely to change. He met Ms. Barbouti for the specific purpose of going through that document with her. Having done that, it would make no sense to put a final figure for a multi million euro project on a piece of paper, without keeping a copy, and promise to confine his claim to that figure. Had he been in a position to commit to a final figure, I am satisfied that he would have done it in a more formal way and he would not simultaneously have prepared a lengthy formal document with specific colour coding designed to indicate that final figures could not yet be ascertained. I am satisfied that Mr. Kiernan never represented to Ms. Barbouti that the figures in the December Draft Final Account would not change, or that he gave her any additional page with a final figure on it.

2.28 Ms. Barbouti also gave evidence that in early May, 2017, she had a meeting with Mr. Kiernan and told him: “Listen, you only have under 150 in the budget left.”

2.29 Mr. Kiernan, for his part, said that there was no meeting with Ms. Barbouti in May, 2017, and that this conversation never took place at any time. I accept this evidence. Had Ms. Barbouti indicated to Mr. Kiernan that there was only €150,000 left, he would not have tolerated a situation where his account was being used by Ms. Barbouti’s gardener, Mr. Adam English, to order plants on his account, nor would he have allowed the plaintiff’s workmen to dispose of waste and carry out other works at Mr. English’s request. Neither would he have acquiesced in the receipt of new instructions from Ms. Barbouti as to works she wanted carried out, such as extensive additional works to the Warehouse at a significantly higher specification than had been requested by her up to December, 2016.

2.30 Other examples of additional works requested by Ms. Barbouti between December, 2016, and July, 2017, and new design choices made by her in that time, include a request for a stone rather than a concrete finish to steps in the garden and decisions about whether the lighting in the garden should be coloured or white, a decision which was not made until late July, 2017.

2.31 In addition, the site meeting notes show that, from February, 2017 onwards, Ms. Barbouti was considering whether she might install a waterfall in the Orchard. Although this did not ultimately proceed, it shows that Ms. Barbouti did not regard herself as in any way constrained by the design choices she had made prior to the production of the December “Draft Final Account”.

2.32 Mr. Kiernan also gave clear evidence that significant upgrades to the Warehouse were instructed in 2017, including Alu clad windows in place of uPVC, roller shutters, Sliderobes for the boot room, cladding on additional elevations with consequent changes to the roof, and so on. This resulted in a significant increase from the estimate of €68,000 in the December Draft Final Account to the sum of €126,363 claimed in a claim made towards the end of July, 2017. This claim was Valuation 35, the receipt of which precipitated Ms. Barbouti’s action in dismissing the Contractor.

2.33 I am satisfied, therefore that there were no representations made by Mr. Kiernan at any time that the figures he was producing were the final figures, and that he could not in any event make such representations when the final figures depended in significant part on the invoices yet to be received from third party consultants and subcontractors, at least some of whom Ms. Barbouti was instructing directly and over which he had no control.

2.34 One side issue arose out of all of this which was that it was suggested that Mr. Kiernan’s credibility was in issue because he had given evidence that the figures in blue in the December Draft Final Account had subsequently increased, when in fact they had not increased. I am satisfied that this submission is unsubstantiated. It is quite clear that at least some of the figures in blue in the December Draft Final Account had increased by the time Valuation 35 was issued in late July, 2017.

2.35 For example, an estimated final figure of €100,000 in respect of “Tree Lighting”, where only €38,400 had been expended as of December, 2016, subsequently increased to €127,200. Amounts claimed by Chubb, the subcontractors dealing with security, increased from an estimate of €65,000 in December, 2016, to an estimated final figure of €71,000 in Valuation 35. However, both estimates proved far too low as, subsequent to Valuation 35, another bill of approximately €50,000 was received from Chubb. The November 2017 Rev B Final Account indicates that the Chubb total at that time was €112,498.17 (excluding preliminaries and attendances in the sum of €5,624.91), but also indicates that the final invoice had not been received.

2.36 Similarly, the amounts due to Bushy Park Ironworks had been estimated at €170,000 in December, 2016, but in Valuation 35, the sum of €159,800.90 in respect of invoices received was claimed, together with the sum of €14,622 for the Contractor’s profit and attendances, including cranage. The final estimate in Valuation 35 was €274,800, with the Contractor’s profits and attendances amounting to €36,550. This was not too far off the final bill, which was in the region of €300,000. It should be noted that Ms. Barbouti agreed, as part of the Settlement reached with the Contractor on Day 4, to pay the sum of €103,260 plus VAT – a total of €117,200.10 if the applicable VAT rate is 13.5% - to Bushy Park Ironworks directly. It seems that they had made bespoke gates and railings on her express instructions and that she did not pay for them until the Settlement was reached with the plaintiff.

2.37 “Electrical Ducting to Light & Camera Poles Main house” was estimated in December, 2016, as €175,000, but by July, 2017, it had increased to €196,440. Likewise, the December estimate for the cappings for new walls was €112,000, but this had risen by July to €124,660.

2.38 It was also put to Mr. Kiernan that an email which he had sent, from Portugal where he was on holidays, on 2 August, 2017, acknowledged that the overall amount might not have increased since the December, 2016 draft and might even have decreased. Respectfully, this email was put to Mr. Kiernan in a highly selective manner with emphasis laid only on the first paragraph which stated: “Hi David. Further to our recent discussions regarding the above, I would like to take the opportunity to clarify our position. In December last year we agreed a proposed final account figure excluding VAT of €5,239,813. As and from that date those figures have remained relatively unchanged and, if anything, may have reduced slightly due to lighting decisions which excluded colour lighting from the front garden.” As a preliminary point, the reference to the coloured lighting was to the very recent decision, made on 20 July, 2017, not to proceed with same in the garden. This seems to have post-dated the preparation of Valuation 35.

2.39 It is clear from the wording – “relatively unchanged” and “may have reduced slightly”

– Mr. Kiernan was not asserting anything with certainty and it would be entirely unreasonable to interpret this email as purporting to make any definite statement of his position, given that he was on holidays with his family in Portugal having been taken by surprise by the unilateral actions of Ms. Barbouti while away, and given that he had no access to the detailed documents which would require some consideration before any definitive position could be taken.

2.40 Furthermore, although written without the benefit of either the documents or any time to review his position, the remainder of the email provides a reasonably accurate overview of the additional items instructed by or on behalf of Ms. Barbouti since December, 2016, which led to an increase in the estimate from €5,239,813 ex VAT in December, 2016, to an updated estimate of €6,275,881.38 in July, an increase of over €1 million, ex VAT.

2.41 I therefore do not agree that any of these matters undermine Mr. Kiernan’s credibility as contended by Ms. Barbouti.

2.42 In his email of 2 August, 2017, Mr. Kiernan identified five broad headings which explained this significant increase:

1. Furniture ordered by the client through the plaintiff so as to avail of the lower VAT rate payable.

2. Additional works requested by agents of Ms. Barbouti, including in particular Mr. English, which had not featured in the December, 2016 estimate. This included the removal of nine large tree stumps and the rebuilding of a wall.

3. Additional works requested by Ms. Barbouti, predominantly relating to the warehouse where a further extension, full stone cladding, roller shutters, and aluclad windows had all been requested by her since the December 2016 estimate had been prepared.

4. Mechanical and electrical and security services requested by Ms. Barbouti from specialist contractors over which the plaintiff had no control and which were reviewed on her behalf by Messrs. JV Tierney & Co.

5. Preliminaries and insurances on those items, including insurance on the House, which Ms. Barbouti had requested the plaintiff to put in place notwithstanding the issue to her of a Certificate of Practical Completion in relation to the House in mid-November, 2016.

2.43 A review of the Valuations submitted by the plaintiff from December, 2016 to July, 2017 bear out Mr. Kiernan’s general description of the reasons for the increase. Mr. Kiernan gave detailed evidence as to items which had increased, for example Ms. Barbouti ordered an additional chandelier, which resulted in an increase of the December, 2016, estimate from €28,700 to €31,770. The estimate of €11,660 for shower doors increased to €14,160 as a result of Ms. Barbouti’s choices in the interim. Additional window shutters were ordered by Ms. Barbouti at a cost of approximately €8,000. A cellar wine block and gates ordered by Ms. Barbouti increased to €3,275 from an estimate of €2,170. Mirrored TVs and a bronze stag, 1.4m high, for the House, were ordered through the plaintiff at a cost of €8,408.52 and €1,320, respectively. An extractor fan for the cellar was ordered on the recommendation of the electrical consultants, JV Tierney.

2.44 Significant additional costs were also incurred on the instructions of Mr. English, with Ms. Barbouti’s approval. The plaintiff, on Mr. English’s instructions, removed green waste and delivered topsoil. A roadway from the garden to the donkey shed for Mr. English’s use, cost over €22,000.00. Ms. Barbouti herself instructed the plaintiff to pay for trees sourced by Mr. English for the Orchard. The mature trees in the lower garden or Orchard cost €26,348.00, with additional temporary planting in the upper levels costing €5,770.00. Additional deer fencing costing €12,100 was ordered by Ms. Barbouti and Mr. English. This particular sum was ultimately discharged as part of the Settlement reached on Day 4 of the trial, the subcontractor in question having been out of pocket for many years at that stage.

2.45 Ms. Barbouti also requested the construction of concrete planters - clad in timber and with a heating system to protect non-hardy plants - in the upper levels of the garden at a cost of €49,600.00. Sliderobes for the storage of wet coats and boots were ordered for the Warehouse. And so on.

2.46 Essentially, the changes in Valuation 35 in July, 2017, resulted from, first, the items marked in blue which it had been indicated might change before the Final Account, at least some of which did change. Secondly, Ms. Barbouti, her caretaker and her gardener ordered additional items which had to be paid for, and thirdly, other items increased even though this had not been anticipated, as of December, 2016, such as the specification for the Warehouse.

2.47 Mr. Gilligan’s notes show that he attended a meeting with Ms. Barbouti on 26 January, 2017, along with Mr. Kiernan and Mr. Soule. At that meeting, certain works – such as the placing of security cameras – were still being discussed. A waterfall for the garden, which did not ultimately proceed, was still at the stage of a proposal. It was specifically recorded in Mr. Gilligan’s notes of the meeting that sample rocks for the waterfall were to be available at a site meeting on 22 February, 2017, and that the relevant company was to prepare a proposal. There were discussions about railings for curved staircases at either side of Wall 4 where it was sought to identify a supplier as the existing quote was high.

2.48 None of this is consistent with a fixed scope of works and therefore it is not consistent with a fixed sum for those works. I accept the evidence of Mr. Gilligan and Mr. Kiernan that Ms. Barbouti continued, even after expressing concern about costs in late 2016, to give instructions for new works and this is borne out by an examination of the valuations raised by Mr. Kiernan. Ms. Barbouti’s evidence was at the level of a general denial or bare assertion and she did not engage with the additional items in the valuations for which the Contractor claimed. It should be noted that it was never claimed that any of the items listed in the Valuation were not instructed by Ms. Barbouti.

Certificate 35

2.49 On 18 July, 2017, Mr. Kiernan sent in a Valuation and Mr. Gilligan issued Certificate No. 35 in the amount of €318,870 ex VAT, or €361,917.54, inclusive of VAT. Probably in line with Ms. Barbouti’s requests that overall costs would be indicated, the Valuation suggests a final figure (ex VAT) of €6,275,881.38, of which the sum of €4,996,193.23 had already been paid. (The figures for interim payment certified by Mr. Gilligan differ very slightly from those claimed in Valuation No. 35, which were €319,356.81 ex VAT and €362,469.98. Nothing turns on this and the larger figures as to the value of the work done and the value of the total claims made did not differ.)

2.50 Mr. Gilligan forwarded it to Ms. Barbouti by email sent 28 July, 2017, along with a spreadsheet he had prepared providing a breakdown of where the amounts claimed were being spent and a further draft final account from Mr. Kiernan. Certificate No. 35 was erroneously dated 20 June, 2017, but nothing turns on this as it is common case that it was not sent until July, 2017. As Ms. Barbouti was asked for payment by Ms. Mullin of Gartlan Furey on 28 July, 2017, it seems to have been drawn up between 18 July, 2017 and 28 July, 2017.

2.51 The amount of €361,917.54 was never paid by Ms. Barbouti. Indeed, with the exception of certain monies payable to subcontractors on foot of the Settlement, which is discussed in more detail in section 10 below, Ms. Barbouti did not make any further payments in respect of the Works.

2.52 Ms. Barbouti gave evidence of a meeting in the kitchen in Derrybawn in July, 2017, at which Mr. Kiernan and Mr. Gilligan were present. Ms. Barbouti says she brought a baseball bat and laid it up on the island, around which they were gathering, to show them “she was serious”. Mr. Kiernan says he remembers a child’s baseball bat but that it was on a side counter, not on the island. Mr. Gilligan said he did not remember any baseball bat. I am not sure that too much turns on it, but for what it is worth, it seems most probable that Mr. Kiernan’s recollection is correct and that Mr. Gilligan simply didn’t see the baseball bat – which, according to Mr. Kiernan’s description, was not that large - on the worktop elsewhere in the kitchen. In my view, Ms. Barbouti brought the baseball bat to the meeting but Mr. Kiernan’s assumption that she brought it because she was about to stay in the house for the first time and was nervous about intruders is more likely correct.

2.53 I also unhesitatingly accept Mr. Gilligan’s evidence that Ms. Barbouti’s recollection that he and Mr. Kiernan were smirking at her during this meeting is entirely incorrect. Unfortunately, Ms. Barbouti’s recollections of key events is not only unreliable, but also influenced by a desire to succeed in her claim. I am satisfied that neither Mr. Kiernan nor Mr. Gilligan ever acted discourteously or unprofessionally to Ms. Barbouti. She may well be subjectively externalising stressful or difficult feelings about the enormous project she had taken on, but I am satisfied that they are not objectively valid or based in fact.

2.54 In addition, Ms. Barbouti gave evidence that, after she received Certificate 35, she rang Mr. Gilligan and told him she had concerns about costs and that it was not acceptable. Mr. Gilligan, while he did not rule out the fact that there may have been phone contact, had no record of it and no recollection of it. However, he was very clear in his evidence that the first time he became aware that there was an issue between Ms. Barbouti and the Contractor was when he was “summoned” to a meeting in the offices of Gartlan Furey on 1 August, 2017. He said he “walked in there not knowing what the issue was”. I accept his evidence and find that Ms. Barbouti did not express concerns on the phone in the way she described in her evidence. It is now necessary to consider the events of 1 August, 2017.

Meeting of 1 August, 2017

2.55 On 1 August, 2017, Mr. Gilligan said he got a phone call from either his secretary or Brian Gartlan, of Messrs. Gartlan Furey, whom he had known for over 30 years, asking him to go into Mr. Gartlan’s office. Ms. Barbouti, Mr. Gartlan, and Mr. McDonnell, the litigation partner in Messrs. Gartlan Furey, were present. Mr. Gartlan raised issues about the standard of work in the house, which was of a high standard but still below Ms. Barbouti’s expectations. He mentioned that it was A- or B+. While Mr. Gartlan said he did not use that terminology, I am satisfied that he did. I accept Mr. Gilligan’s evidence that he himself would never use that terminology and that he noted it when he got back to the office or dictated it for his secretary to type up. I see no reason why he would make it up and no one in Gartlan Furey took a note of the meeting. Though I am not sure anything turns on it, I am satisfied based on Mr. Gilligan’s contemporaneous note that that terminology was used by Mr. Gartlan.

2.56 Ms. Barbouti also said she had concerns about the costs of the works to the garden. In response to the concerns about costs, Mr. Gilligan said a quantity surveyor should be retained. This was the only significant suggestion he made in the whole meeting. His evidence was that a decision had already been taken to appoint a forensic accountant and it was indicated – either by Ms. Barbouti or Mr. Gartlan – that the works should cease within a particular period and that the Contractor should leave the site.

2.57 What is notable about that meeting is that, according to Mr. Gilligan, whose evidence I accept, Ms. Barbouti – though she expressed concerns about costs – did not mention an agreed figure. Furthermore, although she mentioned details such as grouting in the kitchen and a stain on the bathroom floor, she said nothing whatsoever about systemic defects to the mortar. Had she mentioned either an agreed budget or final figure for the remainder of the works, Mr.

Gilligan would have noted that as it would have related to the contract he was attempting to administer. She accepts herself that she did not mention any defects in the walls or the mortar.

2.58 The outcome of the meeting was that Mr. Gilligan was to contact Mr. Kiernan and impress on him that the Works need to be completed in a matter of weeks.

Lockout and subsequent events

2.59 Mr. Gilligan was concerned about what he had been told in the offices of Gartlan Furey. Mr. Kiernan was on holidays in Portugal but he decided to ring him because he thought Mr. Kiernan was going to be allowed limited time to address matters. Mr. Kiernan said he would consider it overnight and ring him back. On the following morning, 2 August, 2017, Mr. Kiernan rang Mr. Gilligan back and said that the plaintiff’s workmen had been excluded from the site. There had been no suggestion in the meeting the day before that this would happen and this came as a surprise to Mr. Gilligan. Mr. Gilligan made a note of the phone call.

2.60 Mr. Gilligan’s clear evidence, which I accept, is that prior to this, Ms. Barbouti had not made any complaint about Mr. Kiernan other than the type of minor complaint that would be typical of any homeowner who wanted the contractor to finish up and was looking for updates as to snagging and so on. She had not raised any significant issue about cost or defects.

2.61 It is a significant feature of the case that, when Ms. Barbouti summarily dismissed the Contractor on 2 August, 2017, the walls were at different stages. Some were complete, some were uncapped, some were unpointed, and some were in the process of being built. This has to be borne in mind in considering some of the expert evidence in the case, as there was some criticism by both Dr. Jason Bolton and Mr. Keenan, who gave expert evidence for Ms. Barbouti, of the fact that the walls were unfinished. But that in itself does not disclose any error or negligence by Mr. Gilligan as the sequencing of the works was decided by the Contractor and the Contractor was prevented by Ms. Barbouti from completing the work. This raises a significant issue as to the alleged liability of the Third Parties, and I deal with this in more detail in section 10, below.

2.62 It should be noted that, when Ms. Barbouti locked the Contractor’s workmen out of the site – presumably at some point on the evening of 1 August, 2017, as 1 August was a working day and presumably the workmen had access on that date as Mr. Kiernan did not raise any issue with Mr. Gilligan until the morning of 2 August, 2017 – the Contractor’s plant and tools were on the site. Some of these had been acquired by hire purchase and th Contractor, though it had no access to them, had to continue to pay the owner for them. Mr. Gilligan ultimately intervened so as to persuade Ms. Barbouti, through her solicitors, to allow access to Mr. Kiernan’s foreman to the site with workmen in order to remove the equipment. They hoped to go in on 25 August, 2017, but Ms. Barbouti asked that they wait till Monday 28 August. It is not clear why the previous Friday was not acceptable or why the Contractor’s plant and equipment was retained by Ms. Barbouti for almost a month.

2.63 Ms. Barbouti also apparently imposed strict conditions on the time period for which access would be afforded, limiting it to a few hours, and thereby making it difficult for the Contractor’s workmen – who had to be taken from other sites in order to comply with her choice of the day on which they would be allowed in – to remove the equipment within the allotted time.

2.64 One immediate concern was that no Certificate of Practical Completion had issued in relation to either the Warehouse or the Orchard, and Mr. Kiernan therefore believed, on the basis of the relevant provisions of the Standard RIAI Blue Form Contract, that the Contractor remained liable to insure the site even though it no longer had access to or control over the site. This was worrying as health and safety issues necessarily arose as the area was still a building site. Various railings, including handrails for steps, had not been installed. The piers in Wall 1 were still being built. The lower section of Wall 4 had not been pointed, and cladding of the Warehouse had not been completed. The additional works in the upper levels of the Garden instructed by Ms. Barbouti in 2017 were ongoing. Some other walls had not been pointed either and many of the new walls were still awaiting capping.

2.65 In September, 2017, the Contractor subsequently produced a document again headed “Derrybawn Laragh Final Account” in which he claimed, in addition to the monies claimed on foot of Certificate 35, a further sum of €524,278.64 (€461,919.50 ex VAT). Although headed “Final Account” it clearly does not purport to be a final account as it continues to afford Ms. Barbouti a retention sum. However, it indicates that the retention sum for the Works other than the House is now also 2.5% and that the balance will be due in August, 2018.

2.66 This is therefore probably best interpreted as an attempt to continue to operate the Standard RIAI Blue Form Contract provisions on the basis that Ms. Barbouti has taken possession of the entire site on 2 August, 2017, and that the Works must now be regarded, even in the absence of any Certificate from the Architect, as being practically complete. By stating that the balance would be due one year later, it also indicates an acceptance by the Contractor that the Defects Liability Period would be one year.

Appointment of Quantity Surveyor and dismissal of Third Parties as Architect

2.67 In any event, following the exclusion of the Contractor, Mr. Gilligan attempted to comply with his obligation under the contract to deal with the Final Account. I am satisfied that he did this entirely in good faith but, for reasons best known to herself, Ms. Barbouti refused to appoint a quantity surveyor which was not only Mr. Gilligan’s recommendation as her appointed architect, but was the obviously reasonable and appropriate way to proceed. Forensic accountants do not have the same skills as quantity surveyors and her insistence on appointing a forensic accountant to go through the available paperwork, instead of a quantity surveyor was, in my view, unreasonable. A quantity surveyor would have an expert knowledge of the applicable market rates for the work done as well as the ability to measure the works in order to apply those rates, together with the specific experience in analysing the documentation supplied by the Contractor. Her insistence on the appointment of a forensic accountant seems to have been driven by suspicions that she was being overcharged rather than any desire to resolve the dispute which had occurred. It was not objectively reasonable.

2.68 Mr. Gilligan, in order to comply with what he believed to be his obligation under the contract, which he had a duty to administer impartially as between Ms. Barbouti and the Contractor, proceeded to appoint Messrs. Scollard Doyle to act as quantity surveyors on behalf of Ms. Barbouti in negotiations with the builder to settle the final account and prepare a Final Certificate which would be conclusive in nature and binding on Ms. Barbouti. Indeed, Mr. Gilligan was being pressed to prepare the final account by the Contractor and its lawyers.

2.69 Unfortunately, Ms. Barbouti’s response to Mr. Gilligan’s efforts to review the Contractor’s claims for the purpose of settling the final account was to dismiss him. Mr. Gilligan was notified of this by letter from Ms. Barbouti’s solicitors dated 21 December, 2017.

2.70 Thereafter, Mr. Gilligan approached the RIAI and took legal advice as to what he should do. He was advised that, having been dismissed, he was no longer the architect under the contract and he could not deal with the final account. As a result, the process of final measurement never got off the ground and no Final Certificate which could bind Ms. Barbouti was ever issued.

November, 2017 Final Account Rev B

2.71 In November, 2017, the Contractor issued a Final Account Rev B. There was some criticism by the defendant at the hearing as to the fact that, in the end, there were several “final accounts”. I do not believe such criticism is merited given that the preparation of the Draft Final Account in December, 2016, took place at the request of Ms. Barbouti herself, even though the stage of Practical Completion had not even been reached in relation to either the Orchard or the Warehouse. The document headed “Final Account” in September, 2017, was a response to the unilateral action of Ms. Barbouti in terminating the contract with the plaintiff. It was prepared under pressure of time, in an effort to resolve the dispute and obtain payment and it is not surprising that it had to be reviewed in November, 2017, giving rise to the “Final Account Rev B”. And, of course, revisions continued to be required due to the ongoing receipt of invoices from subcontractors.

2.72 The difference between the September and November Final Accounts was €753,416.72. This arose from a number of matters. First, during the currency of the Works, Mr. Gilligan had urged Mr. Kiernan not to make a claim for approximately €300,000 for excavation works as he thought the rates already applied were adequate. Given that he was now in a situation of dispute, Mr. Kiernan now included that claim. I am satisfied from his evidence that he did so as a negotiation tactic but there is nothing untoward about this: Mr. Wearen, who gave expert quantity surveying evidence for Ms. Barbouti, said that it was normal for a quantity surveyor on behalf of an employer to engage in a negotiation with a Contractor for the purpose of settling the Final Account. Mr. O’Connell also said in evidence that it was not unusual for a contractor to approach the preparation of a Final Account in this way, knowing that there would be further negotiation.

2.73 Secondly, JV Tierney advised that additional sums were due to Chubb. Thirdly, Ms. Barbouti had ordered bespoke ironworks from Bushy Park Ironworks in respect of which additional sums were owing. Indeed, their final invoice was not even included in the November Final Account Rev B. Fourthly, orders such as oil deliveries for the caretaker’s house were ordered on the plaintiff’s account, and an irrigation system for the garden, were ordered on the plaintiff’s account, which Mr. Kiernan said was done without the plaintiff’s knowledge.

2.74 There was significant criticism by Ms. Barbouti from the outset of the failure of the contractor to vouch the sums claimed and the subject of Certificate 35, and indeed to vouch the sums claimed in the November, 2017, Final Account Rev B. Two lever arch folders were submitted by the Contractor to Ms. Barbouti’s solicitors, which were said to contain all necessary information. Clause 35 of the Standard RIAI Blue Form contract imposes an obligation on a Contractor to substantiate the figures in a Final Account by reference to documentation and the Contractor clearly acknowledged that it had to do this. While there are strict time limits in the contract for the production of this information, Mr. Wearen said that these would not always be very strictly adhered to, as the fundamental approach would be that a Contractor should be paid for work done.

2.75 In any event, several boxes of additional material were furnished by the Contractor to Messrs. Scollard Doyle in October or November, 2017. Messrs. Scollard Doyle were appointed by Mr. Gilligan as quantity surveyors to act on behalf of Ms. Barbouti. However, Mr. Gilligan was dismissed and, as he had appointed them and as Ms. Barbouti refused to engage with any quantity surveyor, they were precluded from acting further.

2.76 In correspondence, Gartlan Furey sought responses to queries, but in the absence of any agreement that the queries should be dealt with by a quantity surveyor rather than a forensic accountant or by solicitors, it was, in my view, reasonable for the Contractor to take up an adversarial approach and to refuse to provide the documentation furnished to Messrs. Scollard Doyle. It was already clear that Ms. Barbouti was refusing to deal with the disputed figures on the only reasonable basis, which was that a quantity surveyor would be retained on her behalf to negotiate with the Contractor. Indeed, that is ultimately what she did for the purposes of the litigation.

2.77 In the end, Ms. Barbouti ultimately appointed Mr. Wearen as her quantity surveyor in late January or early February, 2018. The first reference to his appointment is in a letter from Gartlan Furey dated 2 February, 2018. By this time, proceedings had been threatened by the Contractor.

Section 3. History of proceedings and preparation of expert reports

Introduction

3.1 There is a very significant issue between the parties as to when the defects now admitted to be present in the walls first became apparent. This is an issue which I consider in section 5. As will become apparent from that discussion, the defendant’s claim rests in large part on expert evidence tendered on her behalf to the effect that, as the defects in the bedding mortar were apparent to Mr. Paul Keenan, the expert architect retained by Ms. Barbouti, on his initial inspection in March, 2018, they ought to have been apparent to Mr. Gilligan prior to the closure of the site on 2 August, 2017.

3.2 The Third Parties say that this is a claim which is heavily tainted by hindsight and they say that this is obvious from the fact that the defects in the bedding mortar were not introduced as a significant issue in the case until late 2022. When Mr. O’Connell, the Third Parties’ expert architect, inspected the site with Mr. Keenan in March, 2021, the walls were not a very significant issue, and it was only after the issue of a report from Dr. Jason Bolton that they figured strongly in the case.

3.3 Dr. Bolton has a PhD in architectural conservation along with several specialist postdoctoral qualifications in that area, but with a specific emphasis on mortars. He is the author or co-author of several leadings texts and publications, at least one of which, “Stone, Brick and Mortar: Historical Use, Decay and Conservation of Building Materials in Ireland” (1999), of which he is a co-author, is a standard university text. He clearly has considerable expertise relating to the vulnerability, failure and conservation of historic buildings, and a specific expertise relating to mortar.

3.4 As the timeline as to when complaint was made about the bedding mortar is material to the issue of fact as to whether the undoubted defects in much of the bedding mortar in the new walls was observable by way of visual inspection prior to 2 August, 2017, I think it is worth outlining the history of the case as pleaded and particularised as, on the facts of this case, the time at which the condition of the bedding mortar in the new walls was raised by the defendant may be material to an assessment of when the defects in the mortar became apparent.

The Contractor’s Proceedings

3.5 The Contractor instituted proceedings by way of plenary summons issued on 26 July, 2018, seeking €1,444,593 - the sum claimed in November, 2017 Final Account Rev B – or such other sum as might be determined by this Court, in outstanding payments. A sum of just under €5 million had been paid at that date. It also claimed damages for detinue of its plant and equipment during most of the month of August, 2018, together with loss of profit and other losses said to be consequential on its exclusion from the site. A Statement of Claim was delivered on 1 November, 2018.

3.6 In her Defence and Counterclaim delivered in the main proceedings on 12 May, 2020, the Defendant included 28 particulars of negligence, including, for example, damage to the tiles on the kitchen floor and inadequate grouting. As regards the issues remaining in the case by the time the trial proceeded as against the Third Parties, she pleaded the following: “30.11 Defectively refurbishing the warehouse such that extensive remediation is required including structural repairs.

30.12. Failing to adequately construct the orchard walls.”

The Third Party Proceedings

3.7 The Third Parties were joined on the application of the defendant by Order of Reynolds

J. dated 3 February, 2020. A Third Party Notice was served 20 February, 2020. Although general pleas of failure to exercise skill and care were included, this Notice focusses on the absence of a contract, the delay, and the costs.

3.8 Notably, in her Third Party Statement of Claim delivered on 17 July, 2020, the Defendant set out 23 particulars of negligence against the Third Party, not one of which related to defective work or a breach of any duty to identify the defects in line with Ms. Barbouti’s contract with the Third Parties as Architect.

3.9 The only issue raised in the Statement of Claim which might be thought to relate to any of the defects in the new walls, or indeed in any of the Works, was a high level claim contained in the Particulars of Loss and Damage to the effect that the Architect had allowed works to be carried out which were “not performed to an adequate standard, require remediation and/or were incomplete”. This, with respect, is not a particularisation of any claim, as no particular works are identified, nor were those which were incomplete in any way differentiated from those which required remediation, even in the most general way.

3.10 The Third Parties’ solicitors duly raised particulars on 2 November, 2020, in which they sought full particulars of the works alleged to be of an inadequate standard, requiring remediation or alleged to be incomplete and the defendant was asked for details of any remedial work undertaken. In the Replies of 3 March, 2021, the Third Party was referred to the Appendix to the Replies and was told that no remedial works had been carried out.

3.11 The Appendix, insofar as defective work the subject of these proceedings is concerned, consisted of a Preliminary Schedule of Remedial Works and Repairs drawn up by Mr. Keenan and dated February, 2021.

3.12 It should be noted that, at this time, the walls were classed simply as being either historic or newly constructed. Mr. Keenan subsequently suggested that those portions of the historic walls which had largely been reconstructed be dealt with as a separate category and that was agreed. That agreement was appropriate as, in fact, the reconstructed walls were constructed using the same methods as the new walls and it is alleged that, as a result, they have been constructed with bedding mortar which suffers from the same defects as the bedding mortar in the entirely new walls.

3.13 By way of overview of the remediation recommended by Mr. Keenan as of February, 2021, it should be noted that the main focus was the capping or coping treatment to the walls.

3.14 More specifically, as regards the historical walls – Walls 1 (part), 3, 5, 6, 11, 13 - his recommendations were: “Remove domed loose stone capping to original stone walls where flat stones have been utilised and are de-bonding. Cut mortar bedding down to provide adequate depth for bedding for deeper stone which will be bedded deeply in lime mortar NHL5.”

3.15 He did not recommend any repairs for historical walls 2 or 12, and expressed the view that the capping on wall 2 not been replaced due to difficulties with access.

3.16 Pointing (or more specifically for the purposes of this case, repointing) was not identified as a general issue in the historical walls. The focus was on correcting the coping treatment. The inadequacy of this treatment has been conceded and the only issue I have to decide relating to it is the respective liabilities of the contractor and the Third Parties. This is dealt with in section 10.

3.17 For what are now regarded as reconstructed historical walls (part of 1, 3, 10, part of 11, 13, part of 14, and 15, the only recommendation as regards pointing was repointing of 10 (where he referred to a “weak mix”) and 13 (where he said the existing pointing was “poor”).

3.18 A specification for pointing was added only for Walls 1, and those parts of 4 which had not been pointed. Repointing was recommended for 10 and 13 only.

3.19 For the new walls, Mr. Keenan recommended “raking back to 25mm and repointing with 3.5NHL mortar”.

3.20 Updated Further and Better Particulars dated 2 December, 2021, were served in the Third Party Proceedings on 2 December, 2021. These complained in quite a general way of defects in both the new and historical walls, and complained that the defendant had certified for payments in respect of those works. Although said to be particulars of negligence and breach of contract, it is not in fact stated in these Further and Better Particulars that the Defendant would have seen this on periodic visual inspection, and it appears to have been drafted on the basis that the issue of the certificates by the Architect comprised some sort of absolute or overarching guarantee of the quality of the work, which is not the case. I deal in section 4 with the retainer of the Third Parties and the extent of their obligations.

3.21 Ultimately, Consolidated Further and Better Particulars of Negligence and Breach of Contract dated 28 October, 2022, were served. Given their significance across a number of issues in the case, I think it is worth quoting them in full. “1. The First and / or Second Third Party is guilty of negligence, breach of duty, breach of statutory duty and breach of contract in the following manner: a. Failed to advise the Defendant of the requirement for a written contract to be put in place and failed to proceed to organise such a contract between the Plaintiff and the Defendant. b. Failed to meet the obligation to specify whether certain conditions of the RIAI form of contract apply or did not apply to the services provided. c. Issued a certificate of practical completion in November 2016 when there remained considerable works to be performed on the Property. d. Failed to consider whether there should be a single contract or whether the Works should be spread across a number of tenderers to obtain the best price. e. Allowed the Works to grow disproportionately to the value of the initial costs.

f. Allowed the scope of Works to increase dramatically including the type of work involved. g. Failed to assess and apply the market rates to quantities claimed. h. Failed to advise the Defendant as to the necessity for the services of a quantity surveyor to ensure or check matters of cost. i. Failed to provide adequate level of cost control on the project. j. With reference to certificate no. 35 dated 20 July 2017, set out a series of figures that did not compute. k. Provided costing figures to the Defendant which were not transparent and left considerable doubt as to the amounts the Third Parties were certifying with respect to the true value of the Works. l. Failed to go through a process to verify the accuracy of each claim by the Plaintiff. m. Failed in the performance of their duties by not putting in place a contract with the standard terms regarding completion date and liquidated and ascertained damages. n. Contributed to the delay in completion of the project by failing to have in place a contract with adequate terms to prevent such delay. o. Failed to advise and organise a building contract which set out the clear terms of the appointment of the contractor which resulted in a lack of clarity in contractual relationship and conditions applying to the project in accordance with the duty of an architect. p. Failed to advise budgets for the project and an estimate for the costs. q. Failed to administer the contract, as can be reasonably assumed to apply, in accordance with the requisite skill and care of an architect.

r. Issued certificates for payment to the Plaintiff in the absence of carrying out a full and proper assessment of the extent of the work undertaken and amounts due. s. Certified Works in excesses of value of Works completed. t. Allowed Works to be carried out to the walled garden/orchard and avenue which were fundamentally different than the repair works and renovation works to a house. The foregoing was performed without any contract being in place for same. u. Inappropriately issued a certificate of practical completion in or about November 2016. v. Failed to carry out an analysis of the complaints made by the Defendant on an item-by-item basis to safeguard against over-statement of Works performed or the value thereof. w. The First Third Party failed to provide the services of an architect in a manner consistent with that required by the RIAI Code of Conduct.

2. Certifying the following works which were defective and require remediation: a. The repair of the historic stone walls in the walled garden. b. The construction of the new walls in the walled garden. c. The alterations and extension of the warehouse building. d. The construction of the plant room.

3. Issued certificates for payment to the Plaintiff for 2 (a) – (d) in the absence of carrying out a full and proper assessment of the extent of the work undertaken and the amounts due.

4. Certified the works to 2 (a) – (d) in excess of the value of the works completed.

5. Causing the Defendant to pay monies for the above works in respect of 2 (a) – (d) which were not performed to an adequate standard, require remediation and / or remain incomplete.

6. Causing the Defendant to incur ongoing expenses to remedy the defective works at 2

(a) –(d) above.

7. Failed to communicate the information set out as required under clause 2.8 of the RIAI Code of Conduct 2-13 in terms of the architectural commission undertaken.

8. Undertaking to provide the full services as set out in Schedule A of the standard RIAI Appointed Agreement, but failing to comply with the responsibilities set out in Schedule A as regards the design, specification or monitoring of the works.

9. Acting as project coordinator and lead and undertaking to (i) organise the engagement of other professionals to advise on matters outside of the Third Parties’ remit or ability, and (ii) communicating those parties’ fees.

10. Providing design services in respect of the construction, including the warehouse and stonework to the walled garden.

11. Failing to instruct suitably qualified professionals to specify the correct mortar for use in the stonework in the walled garden.

12. Failing to ensure that there were adequate drawings for the masonry walls or the reconstruction of the historic walls, including in respect of stone coursing and capping.

13. Failing to ensure the stonework construction was adequately monitored.

14. Failing to ensure that the warehouse was appropriately designed and / or its construction appropriately monitored.

15. Failing to comply with the principles of conservation repairs.

16. Failing to exercise due skill, care and attention in respect of the design and implementation of works carried out on a protected structure.

17. In respect of the warehouse, failing to produce drawings of sufficient detail or standard for construction purposes.

18. Undertaking design services for the warehouse, including the foundations of the extended areas.

19. Failing to provide adequate specification for the warehouse works to include proper construction.

20. Delaying unduly in capping the orchard walls or in ensuring that the walls were capped.

21. Failing to provide for temporary protection for the walls, with the exception of the reinforced concrete retaining walls.

22. Causing the finish to the top of the walls to deteriorate due to exposure in the winters of 2015 and 2016.

23. The monitoring of the protection of the walls fell below an acceptable standard of care.

24. Failing to monitor the construction of the warehouse, namely as regards the failed foundations and substandard wall tie installation.

25. Failing to demonstrate any assessment of the quantum of monies claimed by contractors as against the works completed on site.

26. Failed to ensure that works were carried out in accordance with the specification provided.

27. Failed to apply standard procedures in implementing the works.

28. Undertook responsibility for design, including of the repairs to the orchard walls, but failed to provide adequate information in drawings and / or specifications in respect of the work.

29. Failed to inspect the works to ensure compliance with expected standards.

3.22 Updated Particulars of Loss and Special Damage dated 16 November, 2022, were served. These claimed a sum of €1,563,521 in damages against the Third Parties, comprising:

1. Main House Internal - €17,000

2. Main House External - €18,000

3. Warehouse - €97,000

4. a. External Works - €13,000

b. Orchard Stone Wall Remedial Works (aka the Walled Garden) -

€1,216,862 (Comprising €1,263,183 less €46,321 as conceded in letter from Gartlan Furey to the Defendant and the Third Party dated 19 May 2022)

5. Donkey Shed - €1,000

6. Preliminaries and Insurances @ 10% on Items 1,2,3,4a and 5 only - €14,600

7. Professional Fees & Client Supervision @ 10% - €142,378

8. Forecasted Inflation H1 2022 - H2 2022 @ 2.25% - Items 1,2,3,4a and 5 only - €4,417

9. Contingency allowance @2.5% - €39,264

3.23 The claim for €35,000 together with associated preliminaries, fees, and so on, in respect of the House was withdrawn on Day 13 on the basis that there would be no costs implications arising from that. It is manifest from that Notice of Updated Particulars that by far the most significant claim is for remedial works to the stone walls in the Orchard. The reason for the very significant sum claimed is that Ms. Barbouti’s experts claim that the only way to remedy the defects in the bedding mortar is by demolishing and reconstructing the walls. By contrast, the Third Parties’ experts say that the defects can be dealt with by specialist repointing at significantly lesser cost, though still amounting to a figure in the region of €687,000. There was some fluctuation in the relevant figures and it was agreed that the Court would proceed to judgment with figures being confirmed as necessary after judgment.

3.24 This represents a significant change of position from repairs to the new walls indicated in the Replies to Particulars of 3 March, 2021, which referred to the Preliminary Schedule prepared by Mr. Keenan in February, 2021. That claim against the Third Parties was notably less extensive than the claim as expanded in the Updated Particulars served in November, 2022.

3.25 Furthermore, the Claim against the Third Parties, as set out in Mr. Keenan’s Schedule from February, 2021, was drafted notwithstanding that Mr. Keenan had identified the bedding mortar as a significant issue during his first inspection in March, 2018.

3.26 It is clear, therefore, that Mr. Keenan did identify issues with the bedding mortar from the beginning of his involvement. What is less clear is why it is was not raised as such a significant issue as against the Third Parties until so late in the day. I deal with this issue in more detail in section 5, below.

3.27 The “over-certification” claim, that is, the alleged negligence of Mr. Gilligan in issuing interim certificates in the amounts claimed from time to time by the Contractor, generally without reduction, and which is dealt with in section 10 below, was particularised as follows: “The Plaintiff seeks to recover a sum of €1,444,593 in its proceedings against the Defendant. The sum is claimed on the basis that work carried out to a value of €5,315,003.31 was certified by the Third Parties and that the Defendant is liable on foot of the said certification. The Defendant disputes the sum claimed and the alleged consequence of the certification. The Defendant maintains that the works carried out have been over-certified to a value of €232,326.31. In the event that the Plaintiff succeeds in its claim against the Defendant for sums certified by the Third Parties, the Defendant will seek to recover that sum together with interest (if necessary) from the Third Parties. The Defendant furnishes a Scott Schedule herewith that has been prepared by the experts acting on behalf of the Plaintiff and the Defendant.

Fees incurred in engaging an independent expert to assess the value and quantum of works carried out.: €72,588.86 plus 23% VAT.”

3.28 The Third Parties, in their closing submissions, contended that, of the six complaints made against the Third Parties in the opening submissions, only two remained. The original six were: i. Failure to put a written contract in place; ii. Failure to design, specifically a failure to make reasonable enquiries in relation to materials; iii. Failure to supervise and inspect the performance of the works; iv. Failure to exercise cost control; v. Negligence in issuing certificates; vi. Failure to ensure works were completed without undue delay.

3.29 However, I do not agree that all of these matters fell away. All were mentioned to some degree or other in the course of Mr. Keenan’s evidence. He criticised the fact that no contract was in place, for example, as well as the matching of the stone treatment in the new walls with that of the old, and suggested there had been a failure to identify the previous capping treatment of the historical walls. I deal with these matters in sections 8 (so far as the matching of the new to old is concerned) and section 9, below.

3.30 Furthermore, so far as the issues of both cost control and the failure to put a written contract in place are concerned, it is clear on the evidence that Ms. Barbouti specifically wished not to be bound by a written contract. She desired to have maximum flexibility to give rolling instructions as and when she decided those instructions were to be given. In the circumstances, there was no scope of works and therefore there could be no tender process. She was, in any event, protected by the provisions in the Standard RIAI Blue Form Contract – which Mr. Wearen accepted would apply – that a “fair value” would have to be applied to the Works and this is a matter which could be determined by negotiation between quantity surveyors acting for Ms. Barbouti on the one hand and the Contractor on the other. The precise amounts claimed by the Contractor in those circumstances were not a matter for the architect, but a matter for negotiation and ultimate determination as between employer and contractor. This issue has been resolved by the Settlement of the main proceedings to which the Third Parties were, correctly, never joined.

3.31 It would be different if a client came with a defined scope of works to an architect and the architect failed to recommend and carry out a tender process. However, as Ms. Barbouti declined, in my view, deliberately, to provide such a defined scope of works, that could not be done. Her decision to give instructions on a rolling and piecemeal basis was hers alone and makes this case somewhat unique, so far as the ability of Mr. Gilligan to put a written contract in place was concerned.

3.32 The trial of both the main proceedings and this third party action was first listed in March, 2022. Shortly before the trial was due to commence, Mr. Nugent, the quantity surveyor retained on behalf of the Contractor, agreed lower figures in respect of certain matters with Mr. Wearen, who acted on behalf of Ms. Barbouti. The figure claimed in respect of monies due and owing was reduced by €730,000, which was comprised of: i. Payments to nominated subcontractors and suppliers (excluding painting and decorating): €1.8m to contractors and suppliers (excluding painting and decorating): €1.8m to 1.689m – a reduction of €118,000 ii. Painting and decorating: €333,000 reduced to €255,000 – a reduction of €88,000.

iii. Builder’s works: €454,000 reduced to €374,000 – reduced by €80,000 iv. Orchard: €2.59m reduced to €2.348m – reduction of €242,000 v. Forest road: €505,000 reduced to €303,000 – reduction of €202,000

3.33 There was repeated reference to this concession by the Contractor prior to the trial. It is useful to note at this point that the reduction in relation to the Orchard relates to the increased sums for excavation, for which Mr. Gilligan had refused to issue interim certificates, and Mr. Gilligan was not involved in the dealings relating to the Forest Road at all. In addition, the first item relates to third party subcontractors and suppliers. It is difficult to see how Mr. Gilligan could be criticised for claims of this nature.

3.34 In any event, the question is whether any of this gives rise to a cause of action against the Third Parties. I consider this issue in section 8, below.

Section 4: The terms of the contract between Ms. Barbouti and the Contractor, and the terms of Mr. Gilligan’s retainer

4.1 An issue to which a reasonably significant degree of attention was devoted at hearing was the identification of the relevant terms of the contract as between Ms. Barbouti and the Contractor.

4.2 Essentially, the Third Parties claimed that the Standard RIAI Blue Form Contract had been incorporated by a course of dealing between the parties, whereas Ms. Barbouti said that she simply had a contract that the plaintiff would carry out Works for her and she would pay him, and that either party could terminate the contract at any time.

4.3 There were two principal reasons why this might be regarded as a significant issue. First, Ms. Barbouti claims for Mr. Wearen’s quantity surveyor’s fees on the basis that, had Mr. Gilligan sought better and more detailed substantiation for the 35 Certificates which he issued over the three and a half years that the Works were proceeding, Ms. Barbouti would not have had to pay those fees. I consider that claim in section 9 below. This claim seems to be based on the assertion that Mr. Gilligan was obliged to administer the building contract fairly and impartially as between Ms. Barbouti and the Contractor and therefore at least in part turns on what the terms of that contract were. In this regard, Mr. Gilligan’s case is that the Contractor was obliged under the RIAI Standard Blue Form Contract to substantiate his claim at the stage of preparation of the Final Account.

4.4 Secondly, there is an issue between Ms. Barbouti and the Third Parties as to whether she was entitled to summarily terminate her contract with the plaintiff. The Third Parties have raised a significant issue under s. 34 of the Civil Liability Act, 1961, dealt with in section 10, below, to the effect that even if the Third Parties are liable to Ms. Barbouti for the defects in the walls in the Orchard (other than the very limited concession made in relation to the haunching of the historic walls), then she is precluded from recovering by reason of her unlawful action in purporting to summarily terminate her contract with the plaintiff and excluding the plaintiff from the site. This argument arguably presupposes that Ms. Barbouti was not entitled to exclude the Contractor from the site.

4.5 There is another issue material to this issue, which is that, although Ms. Barbouti claims that the written terms of the Standard RIAI Blue Form contract were not incorporated into her agreement with the plaintiff, she asserts that the Third Parties are bound by the terms of the Standard RIAI Agreement between Client and Architect for the Provision of Architect’s Services (2007 edition) (which I will refer to as “the Standard RIAI Architect’s Contract”). The Third Parties very fairly accept this, though they say that Mr. Gilligan also provided services which were outside it. However, it is agreed that Standard RIAI Architect’s Contract governs the principal claim in the case, which is whether the Third Parties are liable to Ms. Barbouti for the defects in the bedding mortar in the new walls in the Orchard.

4.6 I will deal first with the Third Parties’ contention that the Standard Form RIAI Blue Form Contract governed the relationship between Ms. Barbouti and the contractor.

Whether the Blue Form RIAI contract was applicable to the dealings between Ms. Barbouti and the Contractor

4.7 Mr. Gilligan emailed Ms. Barbouti on 16 January, 2014, after the original strip out works commenced and after receipt of the second invoice from the Contractor, stating: “I attach copy of second claim from contractor that we are looking at. I have agreed with [Mr. Kiernan] that we are going to set up a building contract, a standard form as issued by the RIAI. This is to give us a more professional basis to proceed upon now that we are putting everything back together and embarking on new work, not just opening up and repair. It will deal with issues of insurance, retention of monies for a defect liability period, for example.”

4.8 Ms. Barbouti never replied to that email, which does not identify which standard form RIAI contract was to be used. However, only five days later, on 21 January, 2014, Mr. Gilligan emailed Mr. Kiernan, cc’ing Ms. Barbouti. So far as the form of contract between the parties was concerned, he stated: “With regard to building contract I propose to use the standard form of RIAI contract [blue formwithout quantities]. Will draft the appendix and issue to you.”

4.9 This clearly identified the particular standard form RIAI contract which it was intended would govern the relationship between the parties as being the “Blue Form” contract. The reference to drafting the appendix is a reference to the completion of various matters which require to be specified for the smooth operation of the standard terms and conditions of the Blue Form contract, though several items in the Appendix are governed by default provisions in the event that they are not completed. I return to this issue further below, but for now it is sufficient to say that the Appendix appears never to have been completed. Certainly no document as completed and no copy of any such document has been produced by the Contractor or Mr. Gilligan at any stage.

4.10 There is a dispute of fact as to whether the contract was ever signed (which would have necessitated attention being given to the Appendix). Mr. Kiernan gave evidence that either Ms. Barbouti or her solicitor, Mr. Gartlan, was pressing for a formal contract to be signed. He said that Mr. Gilligan suggested the Blue Form contract, which would be the usual for this type of project, and that he prepared a schedule of costings including rates in relation to works for the house, so far as he could anticipate what was required, and this was emailed to Mr. Gilligan on

25 February, 2014. Later that day, he met with Mr. Gilligan in Mr. Gilligan’s office and they completed the Appendix, nominating a 12 month defects period, subject to retention at the rate of 5% retention. He said the date for possession was given as 5 November, 2013, with the date for completion being 12 months later. Four weeks was nominated for the interim certificates.

4.11 Mr. Kiernan was quite categorical that he signed the contract in Mr. Gilligan’s office and that it was to be forwarded to Mr. Gartlan. He did not keep a copy and said this was not unusual. In fact, he said it would be common to agree with an employer’s architect that the standards terms were to apply and never to sign a contract. I would digress here to say that the caselaw shows that this does occur in practice, and there is ample legal authority to the effect that, where all of the details of the contract have been identified, the standard terms of such a contract may be incorporated into the dealings between the parties even if it is never formally completed.

4.12 However, this case is somewhat different as the scope of work was never defined at any stage: the Works to be done were identified from time to time by Ms. Barbouti in a series of rolling instructions. I have already indicated that I agree with Mr. O’Connell, the Third Parties’ expert architect, that Ms. Barbouti identified the precise works to be done and the finishes to be achieved according to an “erratic and unpredictable” timeline. That being the case, no Contract Drawings, Specifications or Schedule of Rates could ever be produced. Even the rates originally provided in relation to the House could not have covered all of the works that were ultimately carried out there. In any event, no such rates were ever identified for that part of the Works relating to the Orchard or Warehouse.

4.13 The lack of even a general indication from Ms. Barbouti at the commencement of the Works as to what she hoped to achieve in the House, the Orchard, or even the Warehouse also meant that no Contract Price, or Completion Date could be identified and it was, in effect, impossible to complete the Contract.

4.14 Mr. Kiernan said he signed a contract in Mr. Gilligan’s office but it has never been produced. The overall impression from the evidence is that Mr. Gilligan was somewhat lax as regards formalities. Whether this was his regular style or whether it derived or was accentuated by his enthusiasm for this project – which seemed for him to provide a refreshing contrast to the commercial work he more usually did – is unclear. But he certainly acquiesced in Ms. Barbouti’s wish – which she articulated on a number of occasions in her oral evidence - that she would not be tied down by a written contract.

4.15 Ms. Barbouti’s evidence was to the effect that she was not bound by any contract if it was not in writing and signed, which, of course, is not correct. It is possible, albeit – as the facts of this case perhaps demonstrate – inadvisable, to have an entirely unwritten or oral contract for a costly programme of works executed over several years. It is my view that Ms. Barbouti made a positive decision herself not to sign a written contract when it was suggested to her.

4.16 In her evidence she said:-

“And if [Mr. Gilligan] had wanted to put a contract in or told me you should have a contract, then it would have gone through my solicitors, it would have gone through Brian Gartlan or Juliana Mullin and it would have been ironclad. There's only two ways I do things, either no contract or ironclad. And when I mean ironclad, I mean it's in my best interest if I do a contract.”

4.17 That response was typical of Ms. Barbouti’s evidence on the issue of the contract; that she did not want a written contract unless she felt that it was in her best interest, by which I am satisfied that she meant that, in the event of any conflict of interest between the parties, it favoured her and gave her some kind of advantage or stronger position. In the absence of that, she did not want a written contract.

4.18 Of course, the response quoted above is inaccurate: Mr. Gilligan did tell Ms. Barbouti that a formal contract should be put in place. She simply never responded. It does not appear that she ever discussed it with her solicitors. I infer from that that she made a deliberate decision not to enter into a written contract because she thought that would be in her better interest. She quite possibly wanted the flexibility that would follow from the informality of an unwritten contract. If there was no written contract, then, if for any reason she wanted to suspend works or change builders or was unhappy about anything for any reason, she could walk away. The extent to which she could walk away while works she had instructed were still underway and incomplete, and before settling her bill, is now in issue in these proceedings.

4.19 I think it is important to note that Ms. Barbouti acknowledged that she did not communicate to anyone else that she did not regard herself as bound by any contract unless it was written and signed. When asked if she had communicated her understanding of what a contract was, the following exchange took place: “Q. You have never suggested in evidence that you explicitly communicated to anybody involved in this project that this was your understanding and that because of the fact that there was no signed document so, therefore, ipso facto – if I can permitted a little bit of Latin - couldn't possibly be any contract?

A. Well, in my brain I didn't see us having a contract which is why I locked the builder out.

Q. Yes. In your brain, we understand that.

A. And that’s all I can tell you. I can only tell you what’s in my brain, I can’t tell you what’s in everybody else’s.

Q. Absolutely, I completely understand that. But it was in your brain?

A. Yes.”

4.20 That exchange I think is important in considering Ms. Barbouti’s assertion as to what the contract was, which I deal with further below. However, for now it is sufficient to say that she did not respond to the suggestion that a written contract should be drawn up. And, even if Mr. Gilligan did not press the matter of the contract, he certainly was alive to the importance of regulating the critical issues of insurance and the applicable defects liability period. As a result, from the date of that email quoted above - that is, from the third invoice issue by the Contractor - Mr. Gilligan, when issuing interim certificates in the standard form applicable to the Standard RIAI Blue Form Contract, also deducted 5% from each invoice, which was a clear reference to the retention monies provided for in the Standard RIAI Blue Form Contract.

4.21 I think it is material to this issue that Mr. Keenan gave evidence that the provisions in the Standard RIAI Blue Form Contract are typical of building contracts in general. Mr. Gilligan gave evidence to the same effect, but said that he had only ever operated the blue form and yellow form contracts. Mr. O’Connell said that the various standard forms of contract had in fact evolved from practices which had evolved over time and that the standard form contracts put those practices in written form. Of course, if the parties don’t adopt those practices in any particular situation, they can’t be imposed upon them. However, if the usual practices are in fact followed by the parties in their dealings with each other, particularly in this case where those dealings took place over a period of approximately three and a half years, then the implied terms of such contracts can be incorporated into the oral contract between the parties by way of course of dealing.

4.22 In this particular case, the only reference to any standard form contract by either Mr. Gilligan or Mr. Kiernan at any stage was to the Standard RIAI Blue Form Contract, and it is therefore clear that it is the terms of this particular standard form contract which they operated. Mr. Keenan accepted in his evidence that the terms of that Contract, so far as payments and certificates, including the Certificate of Practical Completion relating to the House, were concerned, were in fact operated between the parties throughout. As this occurred from early 2014 onwards, with the Contractor clearly referencing the provisions of the Contract in the manner in which he prepared the September, 2017 claim for €524,278.64, and also asserting through his solicitors in correspondence that it applied, I think it is in fact clear that, while it could not be said that the entire of the Standard RIAI Blue Form Contract applied to the dealings between the parties, the provisions as to certificates, payments, insurance and the defects liability period certainly did. It is telling that, though the email from Mr. Gilligan to Ms. Barbouti of 16 January, 2014, was somewhat laconic in its terms, these are the very issues which Mr. Gilligan was anxious to address now that it was becoming clear that there would be more significant works than originally envisaged and that the relationship between the Ms. Barbouti, Mr. Gilligan, and the Contractor, was likely to continue for some time.

4.23 It is also clear from the actions of the parties in relation to the issue of the Certificate of Practical Completion in relation to the House that Mr. Gilligan on behalf of the Third Parties, Ms. Barbouti, and the Contractor, were all proceeding on the basis that the Defects Liability Period would be 12 months, that the retention figure would be 5% prior to Practical Completion and 2.5% thereafter. The action of the parties in reducing the retention figure by one half after practical completion was achieved in relation to the House is the operation in practice of Clause 32(A), by which Partial Possession of the overall works was given to Ms. Barbouti.

4.24 It was, moreover, clear to all, or was readily ascertainable, that the 35 Certificates issued by Mr. Gilligan were interim in nature and were not Final Certificates which bound Ms. Barbouti. If that was not clear to her at the time they were issued, then it was certainly clear to her from late 2016, when Mr. Gilligan advised her that he would be retaining a quantity surveyor to assist him in assessing the Final Account. It was further made abundantly clear to her in the second half of 2017, after she had excluded the Contractor from the site and by the time November Final Account Rev B was received. It was stated clearly in correspondence from the Contractor’s solicitors in a letter dated 3 October, 2017, well before any proceedings were instituted.

4.25 Although it was submitted at various times that the question of whether the RIAI Blue Form contract was adopted was a significant issue, I tend to agree with Mr. Gilligan’s evidence that, in fact, it didn’t much matter. The reason why I say this is that the course of dealing between the parties was that Mr. Gilligan issue interim certificates for interim payments, and none of these were ever asserted by either the Third Parties or, critically, the plaintiff, as being conclusive in nature.

4.26 It should be noted that the RIAI certificates designed for use as Interim Certificates (though they are not explicitly described as interim on their face), were used from the very beginning, albeit that retention monies were not withheld until Interim Certificate no. 3 which issued on 8 April, 2014. That was, presumably, because there had been no discussion prior to the first and second invoices from the plaintiff of whether there should be a formal contract or what it should be. The plaintiff’s second invoice was dated 13 January, 2014, for a total of €32,631.70 (incl. VAT). It included the sum of €550 (ex VAT) for a survey to the Orchard. It was therefore already clear at this point that Ms. Barbouti had in mind much more extensive works than the original strip out and emergency repairs for which the plaintiff and Mr. Gilligan were originally retained. After the emails quoted above, the plaintiff deducted 5% retention from all of his claims, up to and including Valuation 35 in July, 2017.

4.27 The application of a 5% retention clearly reflected the intention of Mr. Kiernan that his contract with Ms. Barbouti would be governed, so far as payment was concerned, by a system of interim certificates which would not be conclusive and from which monies would be held back pending the remediation of any defects during a Defects Liability period. The Contractor never resiled from that position.

4.28 It is clear, as Mr. Keenan acknowledged, that the terms as to interim payments and retention monies were operated consistently and from the outset. At para. 48 of his witness statement, which reflects his oral evidence also, he stated: “The operation of the contract did occur with the use of valuations being submitted and certified by the architect, on foot of which the Defendant discharged up to and including certificate of payment No. 34. The certificate of payment as issued by the architect did not refer to the contract or the date of such contract and, in my opinion, have been used as a manner of recording amounts being confirmed by the architect, rather than with reference to a signed contract.”

4.29 In my view, that is correct so far as it goes. There was no signed contract and the full provisions of the Standard RIAI Blue Form Contract were, and could not be incorporated in the absence of a defined scope of works. Mr. Keenan was critical of the fact that no rates were agreed other than in relation to the House, but Ms. Barbouti’s quantity surveying expert, Mr. Wearen, appeared to assume that the provisions of Clause 13 (b) relating to “fair valuation” were applicable in the absence of rates, and I agree with Mr. Wearen that this clause was also applicable by reason of the course of dealing between the parties over an extended period of time.

4.30 I am therefore satisfied that the following Clauses of the Standard RIAI Blue Form Contract were incorporated by the parties by course of dealing: Clauses 13, 31, 35 (b), (c), (d). (e), (h), (i), (j), and (k). Clause 32(A) was operated so as to give Ms. Barbouti partial possession of the House. While the Certificate explicitly referred to Clause 31, it is clear that both clauses are applicable where only partial possession is given as Clause 32 (A) (v) refers to the remedying of defects as required by Clause 31, that is, the making good of defects shrinkage or other faults which appear before the expiration of the Defects Liability Period.

4.31 The provisions relating to insurance were also operated by the Contractor. Pursuant to Clause 22 (A), the Contractor’s obligation was to maintain “All Risks Insurance” and this continued only “until Practical Completion of the Works is certified by the Architect”. This explains the specific information at paragraph 3 of the Certificate of Practical Completion relating to the House that Ms. Barbouti was thenceforth responsible for insuring the House, although she subsequently insisted that the Contractor continue to insure it and his claim for reimbursement was made as part of Final Account November Rev B.

4.32 It is important to note that the Certificate of Practical Completion cannot issue if defects are present which are non-trivial in nature. In practical terms, this means that the architect must not issue the certificate if there are patent non-trivial defects. In order to confirm that, it follows that some kind of inspection by the architect must take place in order to ensure that it is appropriate to issue the Certificate.

4.33 In this case, what occurred was that, throughout March and April, 2016, Ms. Barbouti, her caretaker Mr. Soule, the Contractor, and Mr. Gilligan, all participated in what is frequently known as a “snagging” exercise, that is, in inspecting the house so as to identify defects for remediation before she would accept that the Works in the House were practically complete. It is not surprising that this exercise slipped over into the more usual “snagging” process, whereby trivial defects are also identified. Those defects would in any event have to be rectified during the Defects Liability Period so it presumably was thought that it was as well to identify them and get them rectified early.

4.34 Furthermore, after issue of the Certificate of Practical Completion in relation to the House, half of the retention monies were released to the Contractor as anticipated by Clause 32

(a) (vi). This is significant because Ms. Barbouti’s solicitors sought and obtained specific authorisation for each payment they made from their client account in response to each of the interim certificates (until Certificate 35, when they were instructed not to pay). She clearly reviewed each payment and must have been aware that monies were being released to the Contractor on foot of the issue of the Certificate.

4.35 Ms. Barbouti gave evidence that she did not know about that Certificate, which was sent by Mr. Gilligan, in accordance with what was by then a well established course of dealing, to Ms. Mullin. Ms. Mullin could not say if the Certificate was sent on to Ms. Barbouti.

4.36 However, even if Ms. Mullin did not send on the Certificate, this would not alter the legal effect of the issue of the Certificate and its status as evidence that the parties were, through course of dealing, operating some of the provisions of the Standard RIAI Blue Form contract which are most material to the issues in this case. All formal correspondence relating to the Works had been passing through Gartlan Furey for several years at that point. Ms. Barbouti had clearly authorised Ms. Mullin to accept service of that documentation and Ms. Mullin then sent it to Ms. Barbouti. So far as Mr. Gilligan and the Contractor were concerned, Ms. Mullin had ostensible or apparent – if not actual – authority to receive these documents on behalf of Ms. Barbouti and indeed it has not been suggested that the Certificate ought to have been sent to Ms. Barbouti directly.

4.37 From Ms. Barbouti’s insistence that the Contractor maintained the insurance, it is clear that she was aware that a step of some significance had been taken and indeed that she was giving instructions on one of the most salient consequences of that step, namely, that responsibility for insuring the House had passed to her. I think she most likely was well aware of the Certificate. In any event, her solicitor was certainly aware on her behalf and that was sufficient, in circumstances where her solicitor clearly had authority to receive it on her behalf, to put her on notice of it.

4.38 In any event, the course of dealing between the parties as to interim certificates was one of several years standing at this stage so the precise degree of knowledge on Ms. Barbouti’s part as to the existence or precise contents of the Certificate of Practical Completion are not critical. Even without the issue of that Certificate, there is ample evidence, accepted by Ms. Barbouti’s architectural expert, Mr. Keenan, that the terms of the Standard Form RIAI Blue Form Contract were applied so far as payments and certificates were concerned.

4.39 Mr. Keenan was less willing to accept that other terms of the standard form contract were implied. For example, he said that if the RIAI terms were incorporated, variations should be agreed in writing and he didn’t see evidence of this so far as the Orchard, Warehouse and indeed the Forest Road were concerned, although he thought the detailed drawings produced in relation to the house could perhaps be regarded as variations.

4.40 He also said that you have to have a schedule of rates and that the only rates given were for the House. The works to the Orchard were quite different, involving, for example, significant excavation of earth.

4.41 However, Mr. Wearen in his evidence seemed to accept that the Works could be valued by reference to the principles in Clause 13 of the Standard RIAI Blue Form Contract. These consist of four rules. Rule 1 is to apply the rates in the Bill of Quantities or schedule of rates where the additional work was of a character similar to that on which the rates are based and is carried out under similar conditions. Rule 2 is that, even if the work was not of a similar character or carried out under similar conditions, the schedule of rates can be used if reasonable to do so. However, as in this case there were no rates set out in a Bill of Quantities or schedule of rates relevant to the Works in the Orchard, Rules 1 and 2 could not apply. Rule 3 is to apply a fair value based on either the notion of reasonable costs properly incurred together with an allowance for profit and overhead, or based on typical rates in the locality, and fourthly, apply dayworks, which is rarely done.

4.42 It is common case that the Contractor proceeded in this case on the basis of a fair value in accordance with the third principle, and Mr. Wearen also stated that several standard form construction contracts approach the question of valuing works on the basis of fair value. There was ample protection for Ms. Barbouti in this as confirmed by Mr. Wearen, who said that, in order to establish a claim based on fair value, it had to be properly substantiated by reference of contemporaneous records of “the resources involved, the time taken and the activities undertaken and the level of substantiation is akin to that required to support the resources included in a claim for Dayworks.” [Para. 57 of his report.] The Third Parties argued, and I accept, that it was for the Contractor to justify his claims at the stage of preparation of the Final Account and, insofar as he could not do so, Mr. Gilligan – who intended at that stage to have the assistance of a quantity surveyor – would not have allowed the claim and would not have issued a binding certificate in relation to it. However, Ms. Barbouti did not allow those procedures to be followed.

4.43 Nevertheless, it is the case that the Contractor’s approach to charging for work done was consistent with the Blue Form contract.

4.44 I am satisfied, therefore, that the Clauses of the Standard RIAI Blue Form Contract relating to the ascertainment of price, payments, interim certificates, the Defects Liability period, and the period of final measurement and preparation of a final account, were all incorporated into the contract between Ms. Barbouti and the Contractor. This has ramifications for the case made against Mr. Gilligan, and specifically, the plea of contributory negligence and obligation to mitigate loss, which are dealt with in section 10 below.

4.45 However, I am not satisfied that the provisions of Clause 33 of the Standard RIAI Blue Form Contract, which govern dismissal of the contractor by the employer in certain circumstances and on the giving of prior notice, are applicable. If they were, there would be no doubt in my mind that Ms. Barbouti had not complied with them and that her actions on 1 and

2 August, 2017, in summarily dismissing the Contractor without notice were in breach of her contract with the plaintiff.

4.46 That is not the end of the matter, however, as it does not follow from the nonapplicability of Clause 33 that Ms. Barbouti’s actions were not in breach of contract. While some of the terms of the Standard RIAI Blue Form Contract were incorporated by course of dealing, as I have said, the question of whether Ms. Barbouti’s actions in excluding the contractor were permissible requires consideration of what the remaining terms of the contract were.

Ms. Barbouti’s case as to the nature of the building contract

4.47 There was, from the outset of the hearing, uncertainty as to what Ms. Barbouti said her contract with the Plaintiff actually was. It is not identified at any stage in the pleadings

4.48 Counsel for Ms. Barbouti contended in their closing submissions (para. 51) that: “There were no contractual notice provisions regarding termination, express or otherwise. Where the Plaintiff had been paid the value of works done, there was simply no obligation on Ms. Barbouti to continue his employment.”

4.49 This submission contains a number of fundamental misconceptions, in my view. First, Ms. Barbouti gave no evidence of any express contract, oral or written. Her evidence, part of which is quoted above, was that she never communicated her alleged understanding of the contract with the plaintiff to anyone. There is, therefore, no evidence supporting an agreement between Ms. Barbouti and the Contractor on those terms, as opposed to a subjective view by Ms. Barbouti that she could terminate the contract unilaterally whenever she wished

4.50 Secondly, she gave no evidence which would support an implied term regarding termination. In her oral evidence she contended that either she or the Contractor could simply walk away from the contract at any time. She gave no basis whatsoever for implying such a term. As the ramifications of such a term would be that the Contractor could walk away without completing the works, or that the Employer could terminate the contract without notice when a Contractor had already entered into arrangement with employees, subcontractors, or plant hire companies to which he was financially committed, it is difficult to see how such a term could be implied. An officious bystander who said that surely such a term would be implied would, I think, be met – certainly by the Contractor but in my view also by Ms. Barbouti at the outset of the works to the House and for a long time thereafter, probably up to November, 2016, when she first started to become concerned about costs – with the response that needless to say such a term was not part of their agreement. Indeed, Ms. Barbouti’s own expert, Mr. Keenan, agreed that a contractor should be notified of a defect and given a reasonable time to remedy it before any action should be taken to determine the Building Contract.

4.51 Furthermore, this submission proceeds on the basis that “the Plaintiff had been paid the value of works done”. This submission I assume rests on Mr. Wearen’s evidence that the Contractor had overstated the true value of the Works. However, the expert evidence, including that of Mr. Wearen, was that in the absence of agreement of a specific Contract Price, with agreed variations, the “fair value” of the work would have to be determined in effect by negotiation. There had been no attempt to asses the fair value of the Works by 2 August, 2017.

4.52 Just as importantly, Ms. Barbouti acted to purportedly terminate the contract before specific works, such as the construction of gates and piers on Wall 1 and the cladding of the Warehouse were complete. There could be no implied term that an employer could retain a building contractor to carry out works, and then terminate the contract while the works were only half complete. The works would have limited, if any, value to the employer – Ms. Barbouti’s own expert, Mr. Wearen, said an employer would pay a premium to a new contractor to complete half-finished work – while the Contractor would be out of pocket for materials, labour, overheads, and so on.

4.53 I would accept that Ms. Barbouti could cease instructing the plaintiff to do additional works once the works she had already asked to be done were complete. To that extent, she had the flexibility and control that she desired. However, I can see no basis whatsoever for implying a term that she could simply change her mind after works commenced but before they were complete.

4.54 In short, I am satisfied as a matter of fact that the Contractor never agreed to a contract with Ms. Barbouti, the terms of which would have allowed her to dismiss him summarily while Works she had instructed to be done were still under construction. Such an agreement could not be implied as it would clearly fail any of the recognised tests for implied terms, such as business efficacy or the “officious bystander” even if there were any evidence to support an implied agreement on those terms, which there is now.

4.55 Insofar as Ms. Barbouti was concerned that she had paid over and above the “fair value” of the Works, that was a matter for determination having regard to Clause 13 of the Standard RIAI Blue Form contract. Mr. Wearen, on behalf of Ms. Barbouti, appears to have assumed that this Clause applied in order to ascertain the Contract Price which could not have been specified for the reasons I have already stated. Under Clause 35 (h), the contractor was obliged to substantiate his claim for payment. These terms undoubtedly applied to the relationship between Ms. Barbouti and the contractor and, it should be stressed, operated to her benefit by placing the onus on the Contractor to justify any claim. Any concern she had about costs could have been dealt with in an orderly fashion and there is no basis for implying a term permitting summary exclusion or dismissal of the kind effected by Ms. Barbouti on 2 August, 2017.

Terms of Mr. Gilligan’s Retainer

4.56 The terms of Mr. Gilligan’s retainer are obviously important because they define the scope of his duty of care. As stated by Lardner J. in Sunderland v. McGreevy [1987] I.R. 372, Lardner J. (at p. 385): “The duty of care which an architect undertakes is related to and determined by the scope and terms of his engagement, that is of the work which he is engaged to carry out.”

4.57 An example is given by the facts of that case where the architect was asked to inspect the house by the plaintiffs as prospective purchasers as a matter of urgency and to give a report. He interpreted this as meaning a “walk through” visual inspection of the property. This Court accepted that that was a reasonable interpretation of the architect’s retainer and that his duty was confined to inspecting the building with the eye of a competent architect and to draw the inferences which such an architect would draw from what he sees. He had a duty to advise his clients if he saw anything that might be a problem or a danger but was not obliged to direct the opening up of the building, which did not belong to his clients. The circumstances, therefore, were quite different but it provides a good example of an architect’s duty being constrained by his retainer.

4.58 In this case, while the Third Parties accepted they bore the usual inspection duties of an architect, an issue shortly to be discussed in more detail, some of the other criticisms of Mr. Gilligan relating to the absence of a written contract, the failure to appoint a quantity surveyor, and so on, can only be assessed by reference to the important and fundamental point that the specific instructions of a client in the particular case are material to an assessment of whether an architect might be said to have failed in his duty by reason of not having taken a step which might, in the absence of those specific circumstances of the architect-client relationship, be thought to be a standard. I refer to this issue further in section 8, below.

4.59 However, as regards the primary issue in this case, which is the alleged failure of Mr. Gilligan to identify the defects in the bedding mortar prior to 1 August, 2017, it was not in dispute that Mr. Gilligan’s retainer, though never agreed explicitly and never reduced to writing by the signing of a formal contract, was defined by the scope of the Standard Services at A as set out in the Standard RIAI Architect’s Contract. Although Mr. Gilligan provided services, such as carrying out shadow studies to assist Mr. English in designing the planting scheme, dealing with a neighbour about overgrown structures, and dealing with utilities, none of those services are material to the issues in dispute which, it is agreed, fall to be determined by reference to the Standard Services set out in the Standard RIAI Architect’s Contract.

4.60 The Standard RIAI Architect’s Contract consists of a one page Agreement which envisages that it will be signed and witnessed by the client and by the architect, followed by several pages of standard terms and conditions.

4.61 The scope of an architect’s retainer under this Contract is set out in Section A, Services To Be Provided, which is divided into eight Work Stages. Work Stage 1 is Inception & General Services, for example, and Work Stage 8 is Operations on Site and Completion. Each Work Stage is divided into Standard Services and Additional Services and a proportion of the total charges, of fees payable to the architect, is set out for each Work Stage.

4.62 Those charges are to be defined by completion of Section B, which envisages that for Standard Services, the charge will be either a percentage of the Total Construction Cost, or a lump sum fee which was to be identified. As none of this Contract was ever completed by the parties, nor does it appear to have been discussed at any stage, there was never any agreement between the parties as to whether Mr. Gilligan would be charging a lump sum or a percentage of the Total Construction Cost. Indeed, he seems – unwisely – not to have sought agreement on his fees until the email exchange of emails of November, December, 2016 when Ms. Barbouti sought an estimate of the final costs for the Works.

4.63 Section B also provides that Additional Services were to be charged on an hourly rate. Ms. Barbouti did not assert that Mr. Gilligan was obliged to provide any of the Additional Services in relation to any of the Work Stages. Mr. Keenan gave evidence that, from his review of the documents discovered, Mr. Gilligan did not agree to provide Additional Services and that his retainer was confined to the Standard Services. I will return to this as it seems to me that, at least in one respect, it was nevertheless contended by Ms. Barbouti that Mr. Gilligan was liable to her for failing to advise her on the provisions relating to the dismissal of the contract. Although I do not believe this was ever argued, this architectural service of advising a client on the form of contract with the Contractor and explaining her obligations thereunder, is an Additional Service at Work Stage 4.

4.64 Ms. Barbouti’s complaint in this regard is arguably relevant also to the Standard Services in Work Stage 7: Project Planning, one of which is to “advise client on the appointment of the contractor and on the responsibilities of the parties and the architect under the building contract”. It is not entirely clear from the standard form document what the dividing line between these services, one of which is Additional and one of which is Standard, might be.

4.65 However, I do not believe that either of them impose on an architect any obligation to advise a client in advance, and without any intimation from a client that the termination of the builder’s contract is being contemplated, of the need to comply with the notice provisions in the standard form building contract. These Services, arising as they do at Work Stages 4 and 7, arise prior to and at the signing of the contract and can only, at most, constitute an obligation to outline in very general terms to a client the significance of the drawings, the possibility of Variations, the date for completion (if any) and so on. The provision of specific advice in a situation of dispute, particularly where a client not only does not seek the advice but purposely conceals from the architect what she intends to do, could not be contemplated as a Standard Service to be afforded to a client in all cases.

4.66 It should be noted that a further Standard Service at Work Stage 7 is to prepare the building contract and arrange for it to be signed. I have already set out the reasons why Ms. Barbouti’s approach to the Works made this impossible.

4.67 Section C relates to provisional estimates of costs which would be incurred. This included statutory fees, i.e., planning application charges and commencement notices, and planning application costs, such as newspaper and site notices. It is common case that Mr. Gilligan has discharged these and has not been reimbursed, and that he is in fact out of pocket in respect of fees for planning applications and associated searches and advertisements.

4.68 After these sections, the Standard RIAI Architect’s Contract contains two pages of standard Terms and Conditions. A number of these are material to the issues in the case.

4.69 For example, in clause 2, Architect’s Duties, it is provided that the architect will “exercise reasonable skill and care on the project in accordance with the normal standards of the architect’s profession, and will provide the client with the services agreed,… and will administer the building contract as the client’s agent, while acting impartially between the client and contractor.

4.70 The Client’s Duties are set out in clause 3. These include an obligation to “employ a contractor under a separate agreement to undertake building or other works” and, critically, for the principal issues relating to the defects in the walls, “hold that contractor (and not the architect) responsible for the supervision of construction work, for the operational methods, techniques, sequence of procedures and safety precautions, for the proper execution and completion on time of the building work, for any design work the contractor undertakes, and for the remedying of defects in accordance with the terms of his contract with the client.”

[Emphasis added.]

4.71 The Architect’s obligation to inspect is defined by Clause 5 of these standard Terms and Conditions, headed “Inspection of building work”, as follows: “During Work Stage 8 the architect will visit the site at intervals s/he considers appropriate to the stage of construction to inspect the progress and quality of the work and to determine that the work is being carried out generally in accordance with the contract documents. Frequent or constant inspection does not form part of the standard service at [A]. It is the contractor’s responsibility to supervise the building work.”

4.72 This is reiterated by the definition of Standard Services provided at Work Stage 8, which include: “At periodic intervals appropriate to the stage of construction visit the works to inspect the progress and quality of the works and to determine that they are being executed generally in accordance with the contract documents.”

4.73 As a result, it is clear that Mr. Gilligan was not obliged to supervise the works. His obligation was to conduct periodic visual inspections. As explained by Mr. O’Connell, the contractor undertakes to the employer to supervise the works, and the contractor does that as an expert, that is, he is assumed to have the competence to execute the works to the requisite standard. As Mr. O’Connell explained: “It is the expertise of the general contractor to coordinate all of the inputs from specialists and from subcontractors and from his own labour force, and he provides a foreman for that purpose.” This means that he must comply with the design specifications provided to him by the employer, through the Architect, and ensure that the work is carried out competently and in accordance with regulations, as well as the design specification.

4.74 Mr. O’Connell explained the type of inspection usually conducted by architects, which is visual in nature. He pointed out that an architect will visit the site at reasonably frequent intervals, perhaps on a fortnightly basis, and visually inspect what is going on. His or her focus will be on the works going on at the time. An architect will develop a nose for where issues arise, for example in residential work there can be issues with damp proof courses. His or her obligation is to inspect visually and require the opening up of works if the visual inspection gives rise to concern. The mixing of mortar does not usually give rise to concern as it is well understood by building contractors and their workmen.

4.75 By contrast, a defect of workmanship was a defect in the execution of the works, and the responsibility of a contractor. The architect was responsible for design. There could also be an issue of specification, but if none were given, then the normal practice, as established in the industry, would be implied. The architect’s duty was to conduct periodic visual inspection and, if a defect was identified, to intervene to require correction.

4.76 Mr. Gilligan also said that a building contract, where work was continuous, but architect’s inspections necessarily periodic, meant that work was ongoing and was constantly being covered up. The only way in which it could work is if the Contractor were responsible for defects. He also pointed out that the costs of continual supervision were built into the building costs, which were recoverable by the Contractor as part of the contract price (or, in this instances, as part of the “fair value” of the Works). By contrast, the Standard RIAI Architect’s Contract assigned 80% of the architect’s fees to the design, planning and tender stages, and only 20% to Work Stage 8, Operations on Site and Completion. This reflected the much more limited role of the architect in ensuring that the works were executed in conformity with the contract.

4.77 Insofar as it is contended by Ms. Barbouti that the Third Parties guaranteed the quality and workmanship of the construction, that is incorrect as a matter of law. It was not clear whether this was in fact contended.

4.78 First, it was submitted on Ms. Barbouti’s behalf that Mr. Gilligan’s liability was to be ascertained by reference to the principles in McGlinn v. Waltham Contractors Ltd. (No. 3) [2006] EWHC 2322 (TCC). The Third Parties agree that those are the relevant principles and submit, in effect, that they constitute a comprehensive statement of the liability of an architect who has a duty to conduct periodic inspections of works.

4.79 However, it was also submitted on behalf of Ms. Barbouti that the Third Parties had a threefold liability to Ms. Barbouti. First, at common law. Secondly, under contract to provide the services under the RIAI Standard terms of engagement, and thirdly, on the basis that he had issued interim certificates which meant he had not only certified the value of the work done but also the quality of the work done.

4.80 The defendant’s case as to the precise relationship between these three bases of liability was never, with respect, made entirely clear. Reliance on these three separate headings may not have been intended to constitute a submission that the scope of the Third Parties’ duties was wider in law than that set out in McGlinn.

4.81 However, insofar as it was contended that the scope of the Third Parties’ duty of care went beyond that as described in McGlinn, I would reject that argument. As already stated above, the duty of care of an architect will be defined by the terms of his or her retainer. I do not understand the common law to go further than this, and the common law duty of care is circumscribed by the terms of the retainer.

4.82 Insofar as the certificates are concerned, these were issued under the Standard RIAI Blue Form Contract and I have already found that the provisions of that contract relating, inter alia, to certificates and payments were incorporated into the contract between Ms. Barbouti and the contractor by course of dealing.

4.83 That contract, of course, does not govern the Architect’s duties to the client. The Architect has a role under that contract as regards certifying payment, but those certificates are issued by him or her in accordance with his duty of care as defined by his or her contract with the employer. That is made clear by the extract from Jackson and Powell on Professional Liability 9th ed., (London, Sweet and Maxwell, 2021) which was relied upon by Ms. Barbouti, as follows:- “The employer is entitled to expect his architect or engineer so to administer and inspect the works so as to ensure, as far as is reasonably possible, that the quality of the work matches up to the standard contemplated by the building contract. In practice, the professional charged with inspecting the works is likely also to be a professional whose responsibility it is to carry out the administration of the building contract, including the task of certifying that the interim and final payments are due to the contractor. The certification function may require the architect or engineer to carry out detailed and frequent inspections. This is not to say that a construction professional who certifies payment for work, which is in fact defective because, despite reasonable skill and care, he is unaware of the defects, is in breach of his duty to supervise. His duty is to exercise reasonable skill and care in seeking to achieve a particular result; he does not (normally) guarantee that a particular result will be achieved.” [Emphasis added.]

4.84 The issue of an interim certificate requiring the client to pay certain amounts to a contractor, while it amounts to a certificate not only that works of a certain value have been done but that they are of a quality as to be generally in accordance with the contract does not extend the duty of the architect so as to make him or her a guarantor of quality of the works. The quality of the works is certified by the architect only to the extent that he or she can be satisfied of them on discharging his or her duty to conduct visual inspections of the works in accordance with the principles set out above.

4.85 As such, the issue of the interim certificates does not add anything to the liability of the architect or the scope of his duty. The certificate should not be issued unless the architect has inspected the works in accordance with the standards relevant to such inspections but, if such inspection does not disclose any defects, then the architect may issue the certificate. The fact that he issues a certificate in relation to certain works does not in any way constitute a guarantee that there is no defect. Insofar as Mr. Keenan suggests the contrary in his reports and in his evidence, he is mistaken as a matter of law.

4.86 In the circumstances, I am satisfied that the scope of the Third Parties’ duty to Ms. Barbouti is as summarised by the High Court of England and Wales in McGlinn v. Waltham Contractors Ltd. (No. 3) [2008] Bus LR 233, [2007] EWHC 149 (TCC) at para. 218 as follows: “(a) The frequency and duration of inspections should be tailored to the nature of the works going on at the site from time to time: see Corfield v Grant 29 Con LR 58 and Jackson & Powell, at para 8-240. Thus it seems to me that it is not enough for the inspecting professional religiously to carry out an inspection of the work either before or after the fortnightly or monthly site meetings, and not otherwise. The dates of such side meetings may well have been arranged sometime in advance, without any reference to the particular elements of work being progressed on site at the time. Moreover, if inspections are confined to the fortnightly or monthly site meetings, the contractor will know that, at all other times, his work will effectively remain safe from inspection.

(b) Depending on the importance of the particular element or stage of the works, the inspecting professional can instruct the contractor not to cover up the relevant elements of the work until they have been inspected: see Florida hotels Pty Ltd v. Mayo

(1965) 113 CLR 588 and Jackson & Powell at para 8-241. However, it seems to me that such a situation would be unlikely to arise in most cases because, if the inspecting officer is carrying out inspections which are tailored to the nature of the works proceeding on site at any particular time, he will have timed his inspections in such a manner as to avoid affecting the progress of those works.

(c) The mere fact that the defective work is carried out as covered up between inspections were not, therefore, automatically amount to a defence to an alleged failure on the part of the architect to carry out proper inspections; that will depend on a variety of matters, including the inspecting officer’s reasonable contemplation of what was being carried out on site at the time, the importance of the element of work in question, and the confidence that the architect may have in the contractor’s overall competence: see Sutcliffe v. Chippendale & Edmondson 18 BLR 149 and Jackson & Powell, para 8- 242.

(d) If the element of the work is important because it is going to be repeated throughout one significant part of the building, such as the construction of a proprietary product or the achievement of a particular standard of finish to one element of the work common to every room, then the inspecting professionals should ensure that he has seen that element of the work in the early course of construction/assembly so as to form review as to the contractor's ability to carry out that particular task: see the George Fischer Holdings case 61 Con LR 85….

(e) However, even then, reasonable examination of the works does not require the inspector to go into every matter in detail; indeed, it is almost inevitable that some defects will escape his notice: see East Ham Corpn. v. Bernard Sunley & Sons Ltd [1966] AC 406 and Jackson & Powell, at para 8-239.

(f) It can sometimes be the case that an employer with a claim for bad workmanship against a contractor makes the same claim automatically against the inspecting officer, on the assumption that, if there is a defect, then the inspector must have been negligent or in breach of contract for missing the defect during construction. That seems to me to be a misconceived approach. The architect does not guarantee that his inspection will reveal or prevent all defective work see Corfield v. Grant 29 Con LR

58. It is not appropriate to judge an architect’s performance by the result achieved: see Jackson & Powell, at para 8-238.”

4.87 It is clear, therefore, and accepted by both Ms. Barbouti and the Third Parties, that the mere fact that the bedding mortar is defective does not establish liability on the part of the Third Parties. An architect is not automatically liable where works are found to be defective and those defects were not noted on visual inspection. The onus is on the Ms. Barbouti to demonstrate negligence in the form of a failure to conduct reasonable inspections and a failure to see what ought to have been reasonably apparent on the conducting of those visual inspections.

4.88 In addition to those principles, however, the Third Parties also rely on Keating on Construction Contracts 11th ed., (London, Thomson Reuters, 2021) at para. 14-120, citing Sutcliffe v. Chippendale & Edmondson (1971) 18 B.L.R. 149,165, to the effect that: “Prolonged and detailed inspection and measurement at interim stage is impractical and not to be expected.”

4.89 The Third Parties further rely on East Ham Corp. v. Sunley [1966] A.C. 406 at 443, where it was stated: “As is well-known, the architect is not permanently on the site but appears at intervals, it may be of a week or a fortnight, and he has, of course, to inspect the progress of the work. When he arrives on the site there may be many very important matters with which he has to deal: the work may be getting behindhand through labour troubles; some of the suppliers of materials or the subcontractors may be lagging; there may be physical trouble on the site itself, such as, for example, finding an unexpected amount of underground water. All these are matters which may call for important decisions by the architect. He may in such circumstances think that he knows the builder sufficiently well and can rely upon him to carry out a good job; that it is more important that he should deal with urgent matters on the site than that he should make a minute inspection on the site to see that the builder is complying with the specifications laid down by him... it by no means follows that, in failing to discover a defect which a reasonable examination should have disclosed, in fact the architect was necessarily thereby in breach of his duty to the building owner so as to be liable in an action for negligence.

4.90 The application of those principles requires, therefore, careful consideration of the specific facts of the case. Much of the caselaw will be distinguishable on the basis that the circumstances of the building works and the nature of the defect differ from the issues in this case.

4.91 For example, Ms. Barbuoti relied on Jameson v. Simon (1899) 1 F. (Ct. of Sess.) 1211 where an architect who was obliged to carry out inspections of the construction work never conducted any inspection of the “bottoming” or infill for a cement floor, but in fact directed the plasterer to cover it up without inspecting it. There it was held that an architect should ensure that he sees the principal parts of the work before they are covered up.

4.92 However, that case is distinguishable from the issues which arise here in relation to the bedding mortar. Aside from the very significant issue of fact in this case as to when the defects in the bedding mortar became visible, it was also, of course, in the nature of the construction that the stone masons were laying the mortar and then immediately laying a course of stone façade on top of it. Mr. Gilligan was only on site approximately every fortnight, though the intervals were not entirely regular and there was a relatively lengthy period in early 2016 where the Works were at a standstill due to planning issues. His attendance on site was in accordance with the specific statement in Jameson v. Simon that an architect cannot and need not be continuously present.

4.93 In addition, there is the critical factor in this case that the defects with the mortar arose from mixing and that there would most likely have been a separate mix of mortar every day, which it is accepted the architect was not bound to oversee.

4.94 That is an entirely different situation from the infill for the flooring of a wall where the very nature of the material itself was inadequate as being composed of perishable material. That would have been evident had any part of the floor have been inspected before it was covered up and is entirely distinguishable from the defects in the mixing of the bedding mortar. Indeed, it is more akin to the defects with the foundations to the warehouse in respect of which Mr. Gilligan has conceded liability.

4.95 The nature of the architect’s duty to inspect and, in particular, its application to the facts of this case and the specific defect which has now been identified as a defect in the mixing of the mortar, is the critical issue in this case and I consider that in some detail in the next section.

Section 5: Whether the defects in the New Walls were patent

Introduction

5.1 I agree with the Third Parties’ submission that the new, historical and reconstructed portions of the historical walls all require separate treatment.

5.2 This is because the requirements for the construction and pointing of new and historical walls, respectively, vary. The evidence in this case was that Mr. Gilligan procured the specifications used by the National Roads Authority (“NRA”) from Messrs. Moloney Millar at an early stage and passed it to the Contractor for reference. Mr. O’Connell gave clear evidence that this NRA specification was sufficiently comprehensive to deal with all aspects of the Works in the Orchard, so far as repairing, restoring or constructing walls was concerned. There was an exception in that Messrs. Moloney Millar, consulting engineers, were retained by Mr. Gilligan on behalf of Ms. Barbouti to design retaining walls which were required given the gradient in the Orchard. However, while initially there was some dispute as to whether Moloney Millar had specified the stonework and the design elements or specifications relating to that, that issue fell away. It was quite clear that Mr. Gilligan was responsible for the stonework in the garden, insofar as the Contractor required direction, and not Moloney Millar.

5.3 The key distinctions made in the NRA Specification between new and old walls were that new walls could be constructed and pointed using one of a number of cementitious mortars, whereas the historic walls had to be repaired and pointed with lime mortar and, in the case of historic walls, there was an obligation on Mr. Gilligan to require the Contractor to conduct weekly tests and to seek out the results of same. It was common case that such test results were not in fact sought.

5.4 In any event, the walls have to be categorised in three, as a result of the differing specifications. In this section, I deal with the new walls, in the next with issues relating to the historic walls, and in the third, I consider whether the reconstructed portions of historical wall should have been constructed in accordance with the specifications for historical walls or whether it was sufficient, as in fact occurred, that they were built as new walls, and I consider the consequences flowing from that categorisation for the issues in the case.

5.5 The principal issue in the case is whether the defect in the mixing of the bedding mortar in the new walls ought to have been identified by Mr. Gilligan in the course of his periodic visual inspections of the Works, prior to exclusion of the Contractor by Ms Barbouti. Most of this section is taken up with consideration of that issue and I will deal with it first.

5.6 However, Dr. Bolton also criticised the pointing mortar in the new walls and it is convenient to deal with the issues relating to the pointing of the new walls first.

Alleged defects in pointing of new walls

5.7 Having considered the evidence relating to the pointing of the new walls, it is my view that there was inadequate evidence of defects in the pointing mortar in the newly constructed walls, and there was further a lack of evidence that any such defects would have been discernible on periodic visual inspections prior to August, 2017.

5.8 Mr. O’Connell said that during his visual inspection of the walls in March, 2021, he saw deterioration or degrading in the pointing mortar, though he didn’t specify which walls. In his oral evidence he stated: “I wouldn’t have thought it was … extremely extensive. But, again, it does appear that there were certainly elements of it that were open to question.”

5.9 He accepted that his inspection was more cursory than that carried out by Dr. Bolton later that year. However, this was because no significant issues in relation to the mortar had been raised at the time of Mr. O’Connell’s inspection in March, 2021. (This appears to have occurred later on foot of Dr. Bolton’s inspections and reports.)

5.10 Mr. O’Connell’s evidence was also to the effect that the failures in the pointing mortar were quite different to the failures of the bedding mortar (Q. 270, Day 23.) He said that the functions of the two types of mortar with the bedding mortar having a structural function and the pointing mortar acting as a breathing zone. His view was that the failures in the pointing mortar were “due to the fact the wall wasn’t protected, there was a fair bit of water flowing through the wall.” This was a reference to the fact that the walls had been uncapped or the capping had not been completed when the builder was excluded from the site in August, 2017, and the walls had lain open to the elements since then.

5.11 As regards defective pointing, Mr. O’Connell was cross examined by reference to photographic evidence of Wall 1 and that portion of Dr. Bolton’s report dealing with Wall 1, and it was put to him that the defects in the pointing should have been apparent. Mr. O’Connell said it was “largely intact and there were certainly deficient areas of it, yes.” (Q. 184, Day 24).

5.12 Mr. Keenan’s evidence, quoted further below, of what he saw in March, 2018, on his first inspection, relates to the area of Wall 1 and the Warehouse, where construction was ongoing on 1 August, 2017, and therefore is not evidence of any failure in pointing as the contractor had not got to the stage of pointing the section of Wall 1 around the piers or the Warehouse when he was excluded.

5.13 In the Appendix to Replies to Particulars dated 3 March, 2021, Mr. Keenan does not identify the pointing of the mortar as an issue for remediation. He only recommends that Wall

10 (where he said there was a “weak mix”) and Wall 13 (where he said the existing pointing was “poor”) would be repointed. He specified that the unpointed sections of Walls 1 and 4 would be pointed.

5.14 There is a reference in Mr. Keenan’s Schedule of Defects and Snags in April, 2018, to “some walls” having a shallow depth of what appears to be lime-based mortar, but the composition of which would have to be confirmed by testing. This appears to be a reference to inadequate pointing, though this is not clear. Clear recommendations for repointing of new walls came only three years later, by which time constant exposure to the elements must have contributed further to deterioration of the mortar in unfinished walls, including the pointing mortar, due to the fact that the walls had not been capped by the time Ms. Barbouti dismissed the Contractor.

5.15 Even then, only Walls 10 and 13 were required to be repointed, so it follows that only those walls – at most – could have been perceived to have been defective some three years earlier.

5.16 This is important because it shows that, at a remove of over three and a half years from the exclusion of the Contractor, the pointing in the walls was not being raised as a systemic issue. Furthermore, it is not apparent that the pointing in the new walls was raised as an issue by Mr. Keenan after his inspection in March, 2018. Indeed, Mr. Keenan in his direct evidence, when viewing a video of Wall 4 taken on 8 February, 2022, that the pointing was “in reasonably good condition”.

5.17 The issue seems to have been raised as a more systemic one after Dr. Bolton produced his report in December, 2021. At Fig. A-29, for example, he included a picture of the pointed up section of Wall 4, which he said was “flaking”. However, first, it is not possible to infer from a picture taken in 2021 that similar flaking was visible prior to August, 2017. The lengthy period of time for which the wall had incomplete capping meant significant water had fallen on it and this would, inevitably have led to deterioration.

5.18 Mr. O’Neill, the expert engineer for Ms. Barbouti, conceded that, while he had not done a full survey of the walls, in those pointed up portions that he had inspected, he didn’t see any defective pointing. It was not clear which portions he was referring to, but it presumably included Wall 4, at least, as that is near the entrance to the Orchard and is, essentially, the first wall one would come to when walking through the garden.

5.19 I am of the view that the defendant has not shown that there was any defect in the pointing mortar of the new walls which would have been visible on periodic inspection by Mr. Gilligan prior to August, 2017. The preponderance of the evidence was that, as of 2021, the pointing to the new walls was – at least in the main - still in good or reasonable condition, notwithstanding lack of protection from the elements for a period of four years.

5.20 Furthermore, in February, 2021, a detailed Schedule of remediation works was provided by the defendant in Replies to Particulars. This identified only two of the newly constructed walls as having defective pointing. The Schedule from 2018 is unclear on the point but, in any event, even by March, 2018, all of the new walls had been left without protection to the top of the walls in the form of incomplete capping. It does not follow that even those limited defects in the pointing mortar which might have been visible in March, 2018, would have been visible the previous summer.

5.21 Dr. Bolton may well have been dissatisfied with the pointing mortar when he first inspected it in August, 2021. However, he was not told prior to inspection that there was litigation and his report was not drafted with a view to addressing the issues in these proceedings. It was a report for Ms. Barbouti simply as to the repairs that he would recommend. This is problematic because it means that the report put in evidence is, for that reason, likely to overstate the standard which it is now said that the Third Parties should have achieved in supervising the Works. This is because the incomplete new walls had been open to the elements for over four years by the time Dr. Bolton conducted his first inspection. As a result, he was viewing them in a condition which was poorer than would have been the case in 2017. Neither was he asked to address whether the defects he was identifying were ones which would have been visible in 2017.

5.22 I am satisfied from a consideration of all of the evidence on this issue that the pointing of the new walls is generally satisfactory, save perhaps for Walls 10 and 13, but that any defects in the pointing of those walls is a result of exposure to the elements since 2017.

5.23 As a result, there is no evidence of any patent defect in the pointing mortar to the new walls as of August, 2017, and the Third Parties bear no liability for any defects in the pointing mortar which might since be found to exist.

New Walls: Nature of the defect in the bedding mortar

5.24 The precise nature of the defect in the bedding mortar was first identified when samples from the walls were taken at a joint inspection in 2022 and sent by Dr. Bolton to Sandberg Consulting Engineers in London for petrographic analysis. They produced a Report dated 20 October, 2022 (“the Sandberg Report”) which was jointly commissioned and constitutes, in effect, agreed evidence.

5.25 The Sandberg Report concludes that the defects in the bedding mortar used in constructing the new walls arises from the fact that the mortar was not properly mixed at the time the walls were being constructed. All but one of these samples (sample 8) were taken from new walls or newly constructed portions of historical walls. Samples 1 to 7 and 9 are from new or newly constructed portions of historical walls and samples 10 and 11 were taken from the Warehouse.

5.26 Mr. O’Connell explained that mixing is the process whereby the binder is distributed throughout the aggregate. The binder wraps itself around the aggregate and crystallises and, if it is not sufficiently mixed and if, therefore, too many of the granules of the aggregate (i.e., sand) do not come in contact with the binder but instead stay in clusters or balls, then in fact those granules won’t be coated and the crystallisation process which is required and which takes part in the hydration stage will not take place.

5.27 It is important to note certain points which flow from the fact that the defect was caused by the mixing of the mortar and which are relevant to a consideration of the liability of the Third Parties for the defective bedding mortar in the new walls.

Defective mixing as the source of the defect in the bedding mortar: general comments

5.28 It was accepted by expert witnesses for both sides that the mixing of the mortar is a matter of workmanship, that is, it is part of the execution of the works and the therefore the responsibility of the contractor, not the architect. Mr. Keenan agreed that a competent contractor, using the NRA specification as passed to him by Molony Millar, was responsible for selecting any of the three cementitious mortars recommended for new build walls, and that it was not a matter for Mr. Gilligan as architect. While his own preference was to specify the mortar himself, he agreed that that was a matter on which architects might differ as to their practice and there was nothing wrong with leaving the choice to the Contractor. The Contractor, of course, could always seek a direction from the architect, but there was no evidence that he ever did so at least in so far as the choice of mortar for the new walls was concerned. It is, in any event, agreed that the mortar selected and used by the Contractor in the newly constructed walls was appropriate.

5.29 It is also agreed that there was, in any event, no obligation on Mr. Gilligan to test the mortar in the new walls as this is not a requirement of the NRA Specification. Mr. Keenan agreed that under the Standard RIAI Architect’s Contract, primary responsibility for carrying out works according to the applicable design and specification rested with the contractor

5.30 Mr. Keenan further agreed that the defect in mixing was a defect in workmanship, and primarily the responsibility of the Contractor. He also accepted that the duty to the architect did not extend to supervision of the Works, and that the use of the word “monitoring” in his report was intended only to refer to periodic inspection.

5.31 A preliminary issue also arises in considering liability for the defective bedding mortar which is that it was, essentially, conceded by the defendant that the Third Parties could not have identified the defects in those portions which were pointed up.

5.32 Wall 4, in which it is accepted that the bedding mortar was defective - and at least a portion of which was identified by Mr. Sutton, the expert engineer who gave evidence for the Third Parties, as being particularly bad - was largely pointed up, save for a lower section towards the end furthest from the piers which was unpointed but which had a mound of earth lying against it until approximately September, 2016. (Photographs later than that show that the earth had been removed around that time.)

5.33 However, Walls 7, 8, 9 and the area of Wall 1 near the piers, all of which are agreed were constructed with defective bedding mortar, remained unpointed at the time the Contractor was excluded from the Site. The existence of pointing on some of the new walls did not, in itself, prevent Mr. Gilligan from observing the defects in the bedding mortar to the new walls.

5.34 The difficult issue which arises for determination is whether Mr. Gilligan, on behalf of the Third Parties, ought reasonably to have observed the difficulties with the bedding mortar during the periodic visual inspections which were conducted on the site. There are a number of factors relevant to this issue and the evidence of the various witnesses, both expert and as to fact, have to be considered in light of those factors.

5.35 First, the nature of the inspections which Mr. Gilligan was required to carry out were visual only. Such inspections do not involve poking between the stones with a chisel, spraying the mortar with water to see if it will be dislodged by that slight pressure or using a microscope (as done by Dr. Bolton during his inspections), or placing one’s fingers into the recess between the stones (as described by Mr. Keenan) as part of the inspections they conducted in the course of examining the walls.

5.36 Secondly, bedding mortar is, of its nature, lying in the interior of the wall where it cannot be seen once the wall is constructed. The mortar in this case was lying some depth in from the face of the wall when it was laid, with space left to allow for the application of pointing mortar. Dr. Bolton thought it had receded due to deterioration but Mr. O’Connell was of the view that there had been no recession and the mortar had been laid like that to await the separate application of pointing mortar. As Dr. Bolton does not generally observe the construction work nor did he purport to give an opinion on the duties of an architect in this situation, the question of the likely building methods seems to me to be within Mr. O’Connell’s expertise rather than Dr. Bolton’s and I therefore accept Mr. O’Connell’s view of the matter.

5.37 The question is when the mortar deteriorated and formed into globules which could be observed from looking at the face of those portions of the wall which were not pointed up.

5.38 The factual issue which the court has to decide under this heading reduces itself to whether the globules of binder which are evident in the photographs taken by Dr. Bolton in 2021 would have been visible on periodic inspection and, if they were visible prior to 1 August, 2017, whether an architect, meeting the reasonable standards of his profession, should have assessed them as identifying a problem with the mix.

5.39 The defendant’s case is that the globules would quickly have become apparent and that Mr. Gilligan should, at an early stage in the construction of the walls, have directed the Contractor to ensure that his workmen were adequately mixing the mortar before application, thus preventing much of the problem. The defendant says that Mr. Gilligan could then have directed the reconstruction of part of the new walls which was first constructed, and dealt with the problem by ensuring that the defective mixing was fixed, before the issue became pervasive throughout the site.

5.40 Thirdly, there was some criticism by Ms. Barbouti’s experts of the failure of the Contractor to direct its workmen to point up as they went along, so that the bedding mortar was not protected from the elements. However, on the evidence of the Sandberg report, the mortar was defective from the outset. As a result, had the contractor pointed up as he went along, that would not have altered the extent of the defect in any material way, as the defect did not result from lack of protection.

5.41 However, the lack of pointing did leave the internal bedding mortar open to the elements.

5.42 In addition, some of the new walls were uncapped and those that were capped seem – in the main – to have been left with open joints as the Contractor was excluded before the capping could be pointed up. Mr. O’Connell said that, without weathering the joints, the capping could not protect the walls.

5.43 Water was, therefore, entering both the face of the new walls (due to the absence of pointing) and from the top of the walls (due to the absence of capping or the absence of watering of the joints between the limestone capping stones).

5.44 It is the case, therefore, that none of the newly constructed walls had functioning capping as of 1 August, 2017, and they were all prone to deterioration from exposure in the following years. It was common case that, as the mortar was in fact defective, it would have deteriorated more rapidly than good quality mortar.

5.45 This is a very significant issue in the case because there is no direct evidence – other than one photograph which I discuss further below – of any apparent defect in the mortar prior to at the least March, 2018, and no photographic evidence of any defect in the mortar prior to August/September, 2021, when Dr. Bolton inspected for the purposes of his report, which he issued in December, 2021.

5.46 As a result, the defective bedding mortar had been exposed to the elements for a considerable period of time, not only prior to the trial, but prior to the first raising of this defect as a significant issue in the proceedings against the Third Parties, who were only first sued in 2020. Ms. Barbouti’s experts agreed that exposure to the elements would cause the mortar to deteriorate and that deterioration would occur at a faster rate than if the mortar had not been defective. This is highly material to a consideration of the appearance of the mortar at a later time and whether it can be inferred from the fact that defects were patent after the Works concluded or that the defect would have been patent prior to 1 August, 2017.

5.47 The dateline of when the defect was discovered and the extent to which it was raised as an issue either prior to or after the Third Parties were joined to the proceedings is therefore important as these are all matters which tend to disclose the extent to which the defect in the bedding mortar was apparent

5.48 This is highly material to the consideration of the evidence of Mr. Keenan, who first inspected the Warehouse and the portion of Wall 1 near the piers - both areas where the Works were incomplete at the time of the exclusion of the Contractor - in March, 2018, and whether it can be inferred from that that that the defect ought to have been identified by Mr. Gilligan prior to 1 August, 2017.

5.49 Similarly, Dr. Bolton first inspected the site in August/September, 2021, and videos of the walls were taken by Dr. Bolton and Mr. Keenan in February and July, 2022. Those videos show that the bedding mortar is defective, but I am satisfied that they are not of assistance in demonstrating how the walls looked, from visual inspection only, while the Works were ongoing. Indeed, much of the video evidence related to walls which had been specifically opened up to see if the defective mortar observed elsewhere was present in them also. They are therefore not probative of what would have been seen on periodic visual inspection in 2022, let alone in 2016 or the first half of 2017.

5.50 The probable deterioration of the exposed bedding mortar over a minimum of four winters before any serious complaint was made as against the Third Parties about the defect in the mortar is, therefore, an important consideration in considering the expert evidence.

5.51 The next important general consideration is that it was common case that mortar is mixed in small batches. As Mr. Gilligan stated, a mix might not last a day. One of the mysteries of this case is how a defect in the bedding mortar could be so apparently pervasive through such an extensive network of walls. While not every section of new (or newly constructed) wall has been opened up so as to verify that they too were constructed with defective mortar, and while some of the walls are historic walls where the only work done was pointing and haunching, the defect is nevertheless sufficiently pervasive that it appears that one or more workmen was not mixing the mortar properly at any time. It is, of course, the Contractor who is liable for these workmen who were stone masons, and therefore skilled tradesmen in their own right.

5.52 But the important point is that, looking at it from the viewpoint of an architect conducting an inspection of a particular section of wall or of such a section after it is built, then the fact that mortar is mixed in small batches has the consequence that, even if the architect identifies the mix as defective, that does not necessarily put him on enquiry about the remainder of a large network of walls. He could reasonably interpret that as being down to the defective mixing of a particular batch of mortar, and therefore confined to that particular portion of wall. It would not be reasonable to infer from one or possibly a limited number of sections of wall that large tracts of a network of walls of 1 kilometre in total had been constructed with defective bedding mortar. The architect in question might reasonably conclude that that that mix would have been applied to a particular section of wall and a different mix used the following day.

5.53 Although none of the expert witnesses specifically commented on this particular detail in the Sandberg report, its findings appear to bear out the significance that, because mortar is mixed in small batches, sections of the same wall may be of varying quality. The Report concludes that a section of Wall 4, which the evidence establishes is particularly defective, at least in the area nearest to Wall 1, is also the location of a sample of mortar (Sample 6) which is described in the Sandberg Report as “typically well-mixed”, and, even more pertinently, that Sample was taken from a part of Wall 4 that is quite close to a Sample which the Sandberg Report describes as being “very poorly mixed”.

5.54 The nature of the defect, therefore, is that it may be caused by a single incident of poor mixing, in which case it would not be pervasive, or it may be caused by multiple incidents of poor mixing, in which case the defect will be pervasive throughout the site. This issue is material to the evidence, in particular, of an incidence of defective mortar which was identified by Mr. Gilligan and photographed by him for reference. This photograph is an important part of the evidence and it is discussed in more detail below.

5.55 The final general observation flows from the nature of periodic inspection. Mr. O’Connell was very clear in his evidence, which I accept, that an architect has to prioritise some matters above others in conducting his site visits and inspections. If work is ongoing on a particular item, one can expect that to demand the architect’s attention.

5.56 In this case, the book of site inspections shows that a large number of matters were still demanding attention up until the time that the Contractor was excluded. Snagging in the House was continuing. Ms. Barbouti was still considering pergolas, waterfalls, and outside lighting. There were still issues relating to security cameras and related services. The book of site inspections put in evidence suggests that most of the attention in 2017 was directed to the Warehouse and to the lower part of the garden, near Wall 4. Much of that was pointed up. There were planters being constructed in the upper part of the garden but the walls had been constructed for some time and were either awaiting capping or awaiting the weathering of that capping. It is not entirely clear to me that Mr. Gilligan was obliged to actively inspect the faces of these walls as part of any inspection, though he certainly was on site from time to time and would have passed by the walls.

5.57 All of these factors need to be borne in mind in considering the evidence.

Categories of evidence as to whether the defect was patent

5.58 On review of the evidence, it was possible to draw a distinction between those who were present on the site at the time of the Works and who said that they had observed no systemic issues with the bedding mortar (Mr. Gilligan, Mr. Goggin), those who were present on the site at the time of the Works, and stated positively that the defects were not only observable, but were pointed out to Mr. Kiernan and Mr. Gilligan (Ms. Barbouti and Mr. English), those who were not present on the Site and therefore declined to say positively when the defects in the mortar would have became apparent (Mr. O’Connell, Mr. O’Neill, Mr. Sutton), and those who were not present on the site but who expressed a more definite opinion as to when the defects in the mixing of the mortar would have been apparent (Mr. Keenan and Dr. Bolton).

5.59 In addition, some of Ms. Barbouti’s employees were present on the Property and had access to the site both during and after the Works, but either did not give evidence at all (Mr. Patterson, a Chartered Building Surveyor who retained Dr. Bolton on behalf of Ms. Barbouti to inspect the walls in mid-2021), or who gave evidence but gave no evidence on this point (Mr. Soule).

1:The evidence of Ms. Barbouti and Mr. English that problems with mortar were identified while the Works were ongoing

5.60 Both Ms. Barbouti and Mr. English gave evidence that, not only were the problems with the mortar evident while the works were ongoing, but that they specifically raised the defects in the mortar with Mr. Kiernan and Mr. Gilligan. If the events described by Mr. English and Ms. Barbouti on this point took place, then it would be very difficult for Mr. Gilligan to say that the difficulties with the bedding mortar would not have been apparent to him on periodic visual inspection and, indeed, it would have been difficult for him to deny that the difficulties had been positively brought to his attention.

5.61 Their evidence on this point described two incidents dating back to 2016.

5.62 First, Ms. Barbouti described a meeting in early 2016 where Mr. English raised a capping stone and it lifted straight out and the mortar beneath it was loose. She said both Mr. Kiernan and Mr. Gilligan were present and that Mr. Kiernan told her it was “Irish mortar” and could take years to set. She said Mr. Gilligan was there and he didn’t say anything.

5.63 Mr. Gilligan said he could not recall that having ever occurred but, if it had, it would have been interpreted by him as an issue with the capping of the historic walls, an issue which he accepts was visible prior to 1 August, 2017, and on which he accepts he has prima facie liability, subject to apportionment of that liability with the Contractor, which is dealt with in section 10 below.

5.64 Mr. Kiernan was more categorical in his evidence. He said that this never happened and that Ms. Barbouti’s evidence on this incident was “a complete fabrication”.

5.65 By way of preliminary remark, it is accepted that the haunching of the historic walls is inadequate in that the capping stones are not properly set in the lime mortar on which they are bedded. It is acknowledged that the stones are not of a sufficient mass and are loose. By contrast, the capping for the new walls was flat limestone capping in respect of which there were significant delays due to problems with the supplier.

5.66 Mr. English said that this incident occurred near the water feature, and therefore near Wall 4, which is a newly constructed retaining wall, in at least parts of which the bedding mortar is particularly defective. That wall does not appear to have been capped by early 2016, and there was a large mound of earth in front of much of it until September, 2016, so it seems somewhat unlikely that this incident occurred as described in early 2016.

5.67 In fact, the evidence was that little work was done on site in early 2016, due to planning issues. This is born out by the Book of Minutes of Site Meetings, which is in evidence and which shows a gap from November, 2015, to July, 2016. I am satisfied that the incident was most unlikely to have occurred at the site and at the time given by Ms. Barbouti and Mr. English.

5.68 Furthermore, as already stated, Mr. English as a witness had in my view no credibility on any issue in dispute. I have already commented on his evidence relating to Mr. Gilligan which I am satisfied was entirely false.

5.69 In any event, their evidence on this point must also be rejected as it is clear to me from the evidence relating to the meeting in Gartlan Furey’s offices on 1 August, 2017, that this incident never occurred. At that meeting, Ms. Barbouti raised issues about the quality of the Works, particularly in respect of the snagging issues relating to the House, all of which were accepted by her own expert, Mr. Keenan, as being minor in nature. Her willingness to raise what were relatively trivial issues in the context of the overall Works shows that Ms. Barbouti had good attention to detail. However, she never raised any issue about the walls or, in particular, the bedding mortar.

5.70 I am satisfied to a high degree of probability that, had Ms. Barbouti been aware prior to 1 August, 2017, that the mortar was not setting, she would have raised that as an issue – and probably as a significant issue – at the meeting in the offices of Gartlan Furey on 1 August, 2017. She did not, and I am satisfied that the reason for that was that neither she nor Mr. English, whom she obviously trusted, had observed any defect in the mortar prior to that time.

5.71 In addition, Mr. English gave evidence that when security cameras were being fitted on poles in mid-2016, it was proposed to put them on top of the walls but it was evident to those present (who he identified as Ms. Barbouti, Mr. Gilligan, Mr. Soule and Mr. English himself) that the mortar on the walls was insufficient to hold the poles. Mr. Gilligan said he had no specific recollection one way or another but, if this had occurred, it would more than likely have been noted in the site meeting notes, which it is not.

5.72 Furthermore, Mr. Kiernan gave evidence, which I accept, that the reason why the poles were not put on top of the walls was a concern about planning permission for the walls and whether installing poles on top of the walls would breach the relevant height restrictions and therefore cause an issue for Ms. Barbouti as regards her planning permission. Another concern was that some of the walls were party walls and it was inappropriate to place security cameras on those walls. I accept Mr. Kiernan’s evidence that the decision to mount the security cameras on stand alone poles rather than on the walls was for those reasons and that Mr. English never pointed out that the mortar was deficient and would not hold them in place. I therefore do not accept this happened.

5.73 Furthermore, as in relation to the other alleged incident, I do not accept that Ms. Barbouti or Mr. English ever pointed out to Mr. Gilligan that they had concerns about the mortar in the top of any of the walls as, had they had any concern about the mortar, such as was described by both of them in their oral evidence, Ms. Barbouti would have raised it at the meeting on 1 August, 2017, and she did not.

5.74 Indeed, Mr. Gilligan indicated in his direct evidence that it was not raised with him by Gartlan Furey at any time in 2017. I understood his reference to Gartlan Furey in this context to refer to their increased role on behalf of Ms. Barbouti from 1 August, 2017, that is, that they were providing her with legal advice in connection with a dispute with the Contractor and they anticipated that litigation would follow, as evidenced by the attendance of a litigation partner at the meeting in their offices on 1 August, 2017. This, therefore, seems to be a reference to the period from 1 August, 2017 until Mr. Gilligan was dismissed as architect on 21 December, 2017. It is a matter of record that this issue was not raised until after Mr. Keenan inspected the Works in March, 2018. Indeed, as Mr. Gilligan pointed out, even when he was joined as Third Party in February 2020, the focus was elsewhere.

5.75 In addition, it is notable that Mr. Keenan says in his report of 23 December, 2021, on the potential liability of the Third Parties that “[m]y original instruction was to advise on contractual matters and the administration of the building contract, if any, in respect of the works.” It does not appear from that summary that Mr. Keenan, when originally instructed in early 2018, was asked to consider any issue relating to the mortar and, indeed, it appears from his evidence, that it was he who first identified issues with the mortar on inspection in March, 2018. At para. 63 of his report, referring specifically to the reasons why Ms. Barbouti terminated her contract with the Contractor, he expressly states that many of the defects only became known later, albeit he does say it is a matter for Ms. Barbouti to clarify whether she knew of the “major defects” at the time she terminated the plaintiff’s contract. However, it does not appear from Mr. Keenan’s report that any issue relating to defective mortar was raised with him when he was first instructed in early 2018.

5.76 I therefore have no hesitation in rejecting the evidence of Ms. Barbouti and Mr. English and I am satisfied that they never drew any issue with the mortar to Mr. Gilligan’s attention at any time prior to 1 August, 2017.

5.77 I am therefore satisfied that neither Ms. Barbouti’s nor Mr. English’s evidence on these two alleged incidents can be accepted and neither of them raised the bedding mortar with Mr. Gilligan as an issue prior to 1 August, 2017.

2: Whether the defects would have been visible on mixing, or during application of the mortar

5.78 Dr. Bolton gave evidence in direct examination that the globules of binder caused by the incorrect mixing, which were apparent on his inspection in 2021, and at a microscopic level on petrographic analysis by Sandberg (and indeed previously by the Scottish Lime Trust, to whom Mr. Bolton sent two samples of his own initiative, prior to the matter being further addressed by Sandberg on foot of a joint inspection by experts), would have been visible while the mortar was being mixed or on the trowel as it was being applied. He stated: “That's what I saw on the site, is that I think this mortar failed at the outset, at the moment of mixing. And you would have seen that because you would have seen those globules, those large spherical pieces that are seen in the bedding mortar, they would have been semi-solid pieces in the paste so they would have been visible in the mortar mixer when it was being mixed. When it came out of the mixer into the wheelbarrow you would have seen all these lumps. When the mason is taking them out on to his trowel and he is putting it on the wall you would have seen these lumps. And as the material dried out, these round spherical pieces would have been there. So the globules were an indicator that this material was poor right at the outset.”(Day 16, Q 169.)

5.79 However, I am satisfied that this is incorrect as a matter of fact and is moreover outside Dr. Bolton’s expertise.

5.80 Expert engineers and architects gave evidence for both sides, and these are the professionals who have the requisite expertise as to the role of an architect in the mixing of mortar. Mr. Keenan accepted that the architect was not responsible for mixing the mortar and would not usually be present. Mr. O’Neill, Ms. Barbouti’s engineering expert, also stated that, as a structural engineer, he would not observe the mixing of the mortar, and that the obligation of an engineer in those circumstances would be to test samples. Mr. O’Neill also agreed that, even if he were on site and saw mortar being mixed, it wouldn’t be obvious to him that the mix was being incorrectly performed. His expertise would be in assessing its components (which I understood to mean testing it) or on seeing it. On Day 14, he stated: “My expertise wouldn't be in the actual function of mixing it. It would be in assessing its components, its strength, and I would say visually seeing it, once it's in place, that it is adequate or if it raises any concerns.”

5.81 There is no doubt that Dr. Bolton, a materials scientist, is an expert in the properties and qualities of mortar. He identified “poor mixing practice” in his first report as a possible cause of the degradation of the mortar and this was subsequently confirmed by Sandberg.

5.82 In fact, Dr. Bolton readily agreed that he has never actually seen mortar being mixed, and has never observed globules in poorly mixed mortar as it was being mixed or applied. Having given the evidence already quoted above, he was asked in cross examination if he had ever seen anything like that in real life, and he said: “No, I don’t deal with new build walls, I only see them after the fact, so I wouldn’t have been involved. But it’s unfortunately it’s a common failing among modern construction, so most masons will complain at length about it. So I would see it after the fact, I would see globules in a wall.” He then agreed that he had seen globules in the walls that were not pointed up, at least four years after the most recently constructed of them had been left open to the elements. However, it is clear from that answer that Dr. Bolton is not familiar with the mixing process or the appearance of mortar either as it is mixed, or while it is being applied.

5.83 Mr. O’Connell in fact gave quite specific evidence that the phenomenon of laitance (derived from “lait”, the French word for milk, and meaning a smooth or milky appearance) which occurs as the trowel strikes the mortar on application would mean that the defects in the mortar would not be immediately evident and would only become so over time.

5.84 Mr. Sutton gave evidence corroborative of this, saying (on Day 24): “Yeah. When mortar is being mixed on site and is being used, it is mixed so that you are looking at the same colour throughout the entire mix and it has got a wet consistency because there is water mixed into it. I think, as Mr. O'Connell had said, once you put the mortar in place and you then strike it, a laitance comes to the outside of the mortar which is a sheen et cetera and which will not go away until over a period of time et cetera whereby it will break down. So when you are looking at it, the test in accordance with the NRA specification is that the mixing has to be such that the colour of the mixture is the same throughout, that's what it is saying. When water is added, et cetera - and don't forget that cement is powder and when you add water to powder, et cetera, it is wet and it is damp, you are not going to see globules or you are not going to see these balls of cement because it is in a wet matrix. You wouldn't see it at that point in time. I can understand how over a period of time that as the laitance disappears and is exposed to open bed joint sections of the wall, that as that dries and it starts to deteriorate on the outside it would become more obvious at that point in time. But my opinion is that during the course of construction of the wall it wouldn't be readily identifiable visually to the human eye.”

His evidence, therefore, was to the effect that the defect would have become visible over time but not during the construction of the wall. He did not express a view as to when it would become visible.

5.85 As a result, it is difficult to see how they would have been apparent on visual inspection either during the mixing or the application of the mortar, and I therefore do not accept the evidence of Dr. Bolton on this point. Dr. Bolton’s undoubted expertise is as a materials scientist, familiar with the properties of mortar, and he concentrates in his work on the reasons for failure in mortar. That expertise does not extend to general experience of building methods on site, and he himself confirmed that he would not be competent to give evidence on the standards to be reached by a reasonable architect. Dr. Bolton was therefore correct to say that the problem was such that the mortar failed at the outset. However, he was incorrect in stating that this would have been visible to the naked eye at the time the mortar was being mixed and applied.

5.86 In my view it was plain from the architectural and engineering experts who have the necessary expertise on this point that, not only would an architect not normally be present at the mixing of mortar, but no one present would have seen globules of the type described by Dr. Bolton. I therefore do not accept his opinion on this point.

3: Whether the problem was evident from lime leaching on the walls.

5.87 Secondly, Dr. Bolton was also of the view that the lime leaching would have occurred quite quickly, within a matter of weeks, on the face of Walls 1 and 8, and that it would therefore be apparent on periodic visual inspection as indicating a problem with the walls.

5.88 He reviewed Mr. Gilligan’s photographic record of the project and indicated that from the photos on pp. 135, 142, 146, 151, 154, it should have been clear to him while the Works were ongoing that lime leaching was taking place.

5.89 It was not disputed by the Third Parties that lime leaching was occurring while the Works were ongoing, but the extent and significance of that lime leaching were very much in issue.

5.90 Dr. Bolton gave evidence that lime leaching is a process whereby water is passing through a wall and transporting soluble elements of the mortar onto the face of the wall, where it then dries out and leaves a deposit. Lime leaching continues as long as there are soluble elements capable of being transported by water. In addition, as well as transporting material outside the wall, where it appeared as lime leaching, it also indicates that the material was moving within the wall and being deposited. This meant the mortar was losing strength.

5.91 Mr. O’Connell was of the view that the lime leaching was not systemic throughout the site. He had visited the site and viewed the photographs, and his view was that the lime leaching seemed to be occurring in two locations. The first was where new wall was built on old wall, and that he would expect to find lime leaching at that point even if there had been no issue with the mortar. He said lime leaching at that location would not put an architect on enquiry and one would expect the lime leaching to be cleaned off as part of the snagging process during the period of final measurement by specialist subcontractors using an acetic acid type base and there would be nothing unusual about this.

5.92 The second incidence of lime leaching that he had observed was where tracking seemed to be occurring. He said this was explicable by reference to the fact that the walls were not capped, or capping had not been completed, and to the fact that there were very large quantities of rainfall falling on these walls, which he said was approximately 700 litres per meter. If there were no capping or haunching to guide it off the wall, it would percolate down through and wind its way through the wall like a river, eventually finding its way out at a joint.

5.93 This is consistent with Mr. Gilligan’s evidence, in which he stated that any lime leaching which occurred was sporadic and limited, and was explicable by reference to specific issues, such as for example the run off of surface water behind Wall 8, which was located at the bottom of a slope. He said that, during construction, that particular area could get quite muddy and saturated and he had been considering whether a land drain or kerb would deal with the issue. He said that, given the large site and extent of the walls in question, a number of instances wouldn’t be out of the ordinary and could be dealt with as part of the snagging exercise. As of the date of trial, he remained of the view that the difficulty with Wall 8 was related to the surface water on the site and not the mortar.

5.94 Overall, he said there were about six instances of lime leaching which he had noted during the works. He had intended using some of the retention monies to deal with such lime leaching as was apparent on the site during the Works to ensure the issues causing the leaching were dealt with prior to issue of the Final Certificate and that the existing staining was cleaned off.

5.95 One of his own photographs of Wall 1, from the Warehouse or House side, was put to him under cross examination. That photograph shows lime leaching in a particular area and seems therefore to indicate a localised incident rather than a systemic issue. Mr. Gilligan indicated in relation to that Wall also that he noted it but interpreted it as a localised event and thought it might be related to changes in level at the other side of the wall, near the Warehouse, which meant that Wall 1 was subject to ingress of surface water. However he had not finally resolved this issue prior to the exclusion of the Contractor from the Site.

5.96 In the photographs included in his report, Dr. Bolton (Figs. 6 and 7) showed significant lime leaching on the warehouse and near the pedestrian opening on Wall 1. He did not show photos throughout the garden. Indeed, at para 3.3 of his report, Dr. Bolton states that the lime leaching on the new walls occurred in “a number of areas”. This does not convey a systemic issue throughout the walls.

5.97 It was put to Dr. Bolton in cross examination that any lime leaching on the site was sporadic. This was Mr. Gilligan’s position in his evidence and his expert, Mr. O’Connell, was of a similar view. Mr. Gilligan said that he had noted lime leaching near one of the pedestrian gates in Wall 1 and there are clear photos of that. He also noted three streaks on wall 8 but had not come to a conclusion on the cause. One possible explanation he had in his mind was that there was a quite a run off of water down to this wall and he thought he might have to come up for a design solution for that. He was considering installing a land drain or a kerb, but he had not come to a decision on the cause and therefore on the appropriate solution before the Contractor was locked out of the site. It was his intention to use the retention funds to deal with this issue during the final account stage.

5.98 Having reviewed the photographs put to Dr. Bolton in cross examination, some of which are undated but which largely date from 2016 and 2017, and athe photographs included in the booklet of documents extracted by the defendant’s experts from the discovery made by the Third Parties, I do not think it can be said that lime leaching was systemic throughout the site.

5.99 From those photographs handed in – which I refer to by their page numbers in the relevant booklet – it appears that lime leaching is present on Wall 8, with a more specific incidence of lime leaching near the pedestrian gate on Wall 1, which is consistent with Mr. Gilligan’s observations while the Works were ongoing. Dr. Bolton referred to photos 135, 142, 146, 151 and 154 in the booklet of documents extracted from the Third Parties’ discovery as evidence of lime leaching. However, 135 and 146 relate to a specific instance on Wall 1 where new meets old, 142 appears to be where new meets old, and 151 shows the streaks on Wall 8 with possibly some additional lime leaching.

As against that, the photos on pp. 150 and 152, for example, are not relied on. 150 shows Wall 4, which is acknowledged by the Third Parties as having, at least in some parts, particularly poor bedding mortar, at a late stage in the works and there is no evidence of any lime leaching on it. 153 is a reasonably clear photograph of the lower garden taken possibly somewhere in the region of Wall 8 and it does not show any systemic lime leaching on Walls 4 or 7. 5.100 It should be noted that, in a photograph from June, 2017 at Tab 6 of a booklet of photographs put to Mr.

Gilligan, large parts of Walls 4, 7, 8, and 9 are visible and these do not show systemic lime leaching. An aerial photograph referred to in closing submissions by counsel for the Third Parties, and which was taken when construction of the piers and gates in Wall 1 seems to have just begun but after construction of the steps at either side of Wall 4, and which appears to have been taken in July 2017, discloses no systemic issue with lime leaching. Specific portions of Wall 8 and what appears to be Wall 13, where new wall was built on old, show visible leaching but there is no evidence that this was systemic throughout the site.

Wall 4, in particular, at least a portion of which was agreed by witnesses on both sides to be particularly defective, does not appear to be suffering from any lime leaching. I am satisfied from a consideration of the relevant photographs that they do not disclose lime leaching as any kind of systematic problem, even by the summer of 2017. I say this in particular in view of Mr. O’Connell’s evidence that lime leaching was to be expected on a site of this nature. His evidence, which I accept, was that the lime leaching depicted on the photos of the site while the Works were ongoing did not suggest there was any issue with the setting of the mortar. 5.101 Dr. Bolton did give the view at one point in his evidence that lime leaching would only occur where the mortar was saturated from the beginning and could not set.

As his evidence in relation to visible globules in the mix demonstrates, Dr. Bolton was prone to some exaggeration in favour of his client and I preferred the more balanced evidence of Mr. O’Connell. Indeed, I did not understand it to be seriously disputed that lime leaching could occur where a new section of wall was built on an old, particularly where the new section was constructed with cementitious mortar, or where there was water tracking. In the circumstances, I accept Mr. O’Connell’s view of the matter. 5.102 It was suggested to Mr.

Gilligan under cross examination that he had failed to investigate the lime leaching. However, Mr. O’Connell’s expert evidence on whether the lime leaching was such as to warrant further investigation, beyond that actually engaged in by Mr. Gilligan, was as follows: “The standards of a reasonable architect are very much formulated by the person, by the place, by the time, by the circumstances…. Like all professional matters, a lot of it has to do with judgment…. I think in these circumstances a very large quantity of wall was being built.

The walls were not capped. There were various different conditions. In some the ground was higher on one side than the other. There were water channels running, large quantities of water were falling in the form of rain on this construction, it all had to finish up somewhere.”(Day 23, Q.58) 5.103 The Defendant placed some reliance on the fact that Mr. O’Connell said that a conservation architect should understand the significance of lime leaching. However, that must be put in context: Mr. O’Connell was very clear in his evidence that the lime leaching as it presented in the photographs (and on his initial inspection) did not signify that the bedding mortar had not set properly. 5.104 Critically, on the investigation point, Mr.

O’Connell said that perhaps he himself would have investigated it further but that would be a matter of individual judgment and that it would be “quite unreasonable to say that in itself this would fall below the standards to be expected of an architect in the circumstances.” Furthermore, had the contract been allowed to proceed to conclusion, I am satisfied that Mr. Gilligan would have ensured that the lime leaching was (in the case of Wall 1) cleaned off, and so far as Wall 8 was concerned, that steps would be taken to deal with the surface water which he saw (and reiterated at trial) was the reason for the lime leaching in that area. 5.105 Mr.

O’Connell is a very experienced architect and I found him to be very balanced in his evidence. In my view, he was less partisan in his evidence than Mr. Keenan or Dr. Bolton, and he framed his evidence in terms of the responsibilities of an architect rather than on the basis of any mistaken view that the architect provides a guarantee as to the quality of the workmanship. He clearly addressed his mind quite deliberately to the correct scope of an architect’s duty under the Standard RIAI Architect’s Contract. He did not equivocate in any way on this issue, stating that it would be “quite unreasonable” to say that an architect who did not take steps to investigate lime leaching prior to the Defects Liability Period Process had fallen below the standards to be expected of him. 5.106 Similarly, Mr.

Sutton, who gave expert engineering evidence for the Third Parties, did not identify the lime leaching he had observed as being indicative of a systemic or pervasive failure of the mortar. He was of the view that the extent of lime leaching disclosed in the photographs did not materially differ from what he had observed in his inspections. The evidence then is that the lime leaching was not progressive and therefore not a major cause for concern. 5.107 Interestingly, Mr. Keenan, did not point to lime leaching as evidence of any patent defect which ought to have been identified by the architect in the course of Works.

This is significant because Mr. Keenan, as part of the preparation of his expert report and his evidence, went through each of Mr. Gilligan’s photographs taken while the Works were ongoing. Apparently, up to a thousand photographs were discovered. Those photographs must have given the most reliable contemporaneous visual record of how the walls appeared while the works were ongoing. Insofar as lime leaching is concerned, this would be evident from a distance, and the fact that many – if not the majority – of these photos – which were not made available to the Court – might have been taken at a distance would not prevent an expert such as Mr.

Keenan from identifying systemic lime leaching as an issue from those photographs. Nevertheless, this is simply not an issue mentioned by him at any point in either his reports to the court or his oral evidence. 5.108 Given therefore, the sporadic nature of the lime leaching as confirmed by Mr. O’Connell, the fact that it could be expected to be caused by water ingress and tracking rather than failure of bedding mortar, and the absence of a duty on the architect to investigate the issue in more detail prior to the remediation of the defects during the period of final measurement, I am satisfied that the lime leaching that was evident on the site prior to 1 August, 2017, did not indicate that there was an issue with the mixing of the mortar or that it had not properly set, and therefore it did not put the Third Parties on enquiry over and above the consideration that Mr.

Gilligan had in fact given to the causes of such incidences of lime leaching as were apparent. 5.109 Finally, I would point out that at a joint meeting of experts on 31 January, 2023, (at which Dr. Bolton was present), it was agreed that lime leaching was of “aesthetic concern”. This is consistent with Mr. Keenan not raising lime leaching as an issue at all, with the fact that Mr. O’Neill did not refer to it in his report, and with Mr. O’Connell’s view that it was an issue which often arose due to specific issues or for specific reasons, that it did not necessarily indicate a defect, and that it could be cleaned off by professional subcontractors at the snagging stage. 5.110 Taking all of the evidence on this issue into account, therefore, it is my view that lime leaching was presenting, prior to July 2017, as a sporadic issue, and not a pervasive one which would put an inspecting architect on enquiry that there was a systemic issue with the construction of the walls which, had it been investigated further, would have turned out to be defective bedding mortar.

Lime leaching could have a number of causes and did not necessarily signify a problem with the setting of the mortar. It has not been established on the basis of the lime leaching that was present, that Mr. Gilligan ought to have directed further investigations in relation to the mortar. The evidence is that the lime leaching as it presented while the works were ongoing was explicable by the building of new portions of wall on top of old, delays in capping of walls, and surface water on the site. This cannot, therefore, be relied upon to establish liability on the part of the Third Parties.

4: Vegetation

5.111 Dr. Bolton referred to vegetation on the walls as evidence of water ingress. There is no dispute between the parties as to the fact of water ingress, and indeed excessive water ingress. The question is whether the presence of vegetation would have led Mr. Gilligan to identify the defects in the bedding mortar. 5.112 I am satisfied that the evidence in relation to vegetation does not establish this. Mr. O’Connell saw the vegetation near the top of the walls as “a maintenance issue and a pointing issue” (Day 23, Q. 183). To paraphrase his evidence, his opinion, in effect, was that the vegetation had emerged near the top of the walls due to the inadequate capping and the fact that the capping had not been pointed up. It should be remembered that after excluding the Contractor from the Site, Ms. Barbouti left the walls unfinished and unprotected from the elements for a period of over four years before Dr. Bolton prepared his report. It seems that routine maintenance to remove the vegetation had not been carried out in that period and it further appears that the presence of vegetation is related to the sections near the top of the walls where the greatest amount of water was entering the wall because the capping had never been pointed up, that is, had never been finished.

5.113 I am satisfied, therefore, that the vegetation present when Dr. Bolton prepared his report in the autumn of 2021 was present because the walls had not been adequately maintained by Ms. Barbouti in the four years since she had excluded the contractor. It was not present on 1 August, 2017, and is not evidence that a defect in the mortar was patent prior to that date.

5: Evidence of witnesses who were on site prior to 1 August, 2017 5.114 Insofar as the witnesses called by Ms. Barbouti are concerned, her trusted caretaker, Mr. Gordon Soule, gave no evidence that he saw anything wrong with the mortar in the walls prior to August, 2017. Mr. Soule was a witness as to fact, and did not purport to give expert opinion. However, he is an engineer by profession and expressed some dissatisfaction with issues relating to the House, which were still being pursued as of Day 9, when he gave evidence. He expressed significant dissatisfaction with the foundations to the Warehouse, though it was not clear that he was aware that liability on that issue had been conceded. 5.115 However, it is clear from his evidence that he had some knowledge of construction practices and standards, that he was involved in snagging the House with Ms. Barbouti precompletion, that he was certainly more proficient than the average lay person in assessing these matters, and that he was happy to express a view on certain defects as he saw them. He also gave his description of the conditions of the mortar in the Warehouse and walls as of the date of trial: “The mortar is powdery, sand, it has no binding ability. I can probably, anybody could take the stones by just pulling them. The pillars that are meant to take the gates and fencing, you could pull the bricks out one by one with your hand. There's no adherence. It doesn't stick at all. So there's no actual stability in any of the structures. Other than that I can't say.”

5.116 While it is of course the case that Mr. Soule was not – as he volunteered – competent to say why the mortar was defective, he was well able to describe its appearance and did so vividly. He also gave specific evidence about the base of the pergola and how it had to be relaid which means that he had been present in the garden from time to time while the Works were ongoing, and that he had been taking an interest on Ms. Barbouti’s behalf in how the Works were progressing and how they were being executed. In that context, it is somewhat telling that he did not give any evidence of any dissatisfaction about the mortar on anyone’s part prior to 2017 nor did he himself give any evidence that it was apparent to him while the Works were ongoing or within a short time thereafter that the mortar was defective.

And a further context for his evidence was that he is clearly very loyal to Ms. Barbouti and a trusted employee. 5.117 The next relevant witness is Mr. Goggin, an engineer with Messrs. Moloney Millar, who attended on the site on several occasions in between September, 2014, and January, 2016. Mr. Goggin was on site in July, 2015, while the walls were under construction. (Although he referred in his evidence to July, 2014, I think it is clear that he intended to refer to July, 2015, as the first site visit in connection with the garden appears to have been in early September, 2014, the first drawings for the retaining walls were produced in October, 2014, and Moloney Millar had not been retained to do any work in the garden by July, 2014.) 5.118 He gave evidence that, during his involvement on the site, he saw nothing “to alarm me or draw my attention to something that would need further investigation”.

This is important because it is part of the defendant’s case that the defects would have been patent from an early stage in the construction and Ms. Barbouti contends that Mr. Gilligan should have noticed the problems with the mixing of the mortar very early on and directed that the Contractor take down such walls as had been constructed and ensure the mix was done properly. She contends that, had Mr. Gilligan done that, there would never have been a pervasive issue with the mortar throughout the new and reconstructed walls and that he is therefore primarily liable for the defect. 5.119 Mr.

Goggin was present not only in July, 2015, when he attended to deal with the ramp between Walls 8 and 9, but also in August, 2015, in order to deal with drainage issues, and in January, 2016. He never walked the upper levels of the garden but he was certainly present in July, 2015, in that part of the garden where the new walls were being built. 5.120 He was, of course, concerned with the concrete core of the retaining walls and not with the stonework, which was carried out by stone masons retained by the Contractor. He gave no specification for the stone cladding to the walls and Moloney Millar did not specify any mortar save for rising solid blockwork, which is not relevant to the case.

Having said that, as a consulting engineer, if there had been a defect in the mortar which was patent in July, 2015, as alleged by Mr. Keenan, then it seems likely that Mr. Goggin would have noticed it. His evidence was that he did not see problems with the work which was then ongoing. Some of the most problematic walls in the garden are Walls 4, 7, 8 and 9, the very walls for which Moloney Millar provided specifications and his reason for being on site. 5.121 It therefore seems from Mr. Goggin’s evidence that there was nothing to alarm him in July, 2015, about the bedding mortar in so much of the walls as had been built at that time.

It is clear from photograph 055/D taken by Mr. Gilligan during a site inspection on 18 June, 2015, that Wall 4 had been substantially completed by this time, along with what appears to be Wall

8. The angle of the photo and the distance from the walls means that it is not entirely clear, but if it is not Wall 8, then it is Wall 7, which is also a newly constructed wall. Therefore, when Mr. Goggin was on site, at least two of the Walls which are now shown to be problematic were substantially complete. It is therefore relevant that he did not recall any difficulty with the Walls at that time.

5.122 It therefore seems from such contemporaneous evidence as is available for 2015 that no defect in the mortar was apparent at that time. 5.123 This evidence is important, given that Mr. Keenan has said (in evidence quoted in full below) that the defects in the mortar would have been visible “within days”. The new walls were under active construction in 2015 and complete (though not capped, it would appear) in January, 2016. The mortar at that point would have been unweathered for at least part of a winter. If it were as obvious as Mr. Keenan appears to think, it is strange that Mr.

Goggin did not see anything, albeit that his answer was confined to his site visit in July, 2015 and he was questioned only very generally. Nevertheless, there is no evidence that Mr. Goggin expressed any concern to Mr. Kiernan or to Mr. Gilligan. While he was questioned only very briefly and very generally, his answer was clear. It is also material to an assessment of his evidence that he was on site in July, 2015, specifically to view the walls, albeit that he was concerned with the concrete core – which is not defective – rather than the stone cladding. 5.124 Mr.

Gilligan gave evidence that he did not observe any systemic defect in the mortar while the Works were ongoing. Of course, Mr. Gilligan is the principal defendant in this third party action, and therefore while I am perfectly satisfied that he is a wholly credible witness, allowance has to be made for the fact that he may not be entirely objective on the issue. Nevertheless, taking into account his undoubted credibility, his evidence carries considerable weight. 5.125 Furthermore, the photographic record which he kept in relation to his 100 or so site visits does not undermine his position.

The point is made in the Third Parties’ closing submissions that, having inspected up to a thousand photographs provided to him on discovery, Mr. Keenan was only able to find one photograph, taken towards the end of the project, which recorded difficulty with the mortar. This photograph was taken at the top of Wall 10, a reconstructed historic wall, in the upper part of the garden where the ground level behind the wall is almost at the top of the wall. 5.126 Mr. Gilligan was questioned about it on Day 20. Very significant reliance was placed on this particular portion of his evidence in Ms.

Barbouti’s closing submissions, and it was asserted in those submissions that Mr. Gilligan did in fact observe “problems with the mortar” (see para. 25 of defendant’s closing submissions), but took no steps to investigate the problem. 5.127 I do not think however, that Mr. Gilligan’s evidence can be fairly construed as conceding in any degree that, while the Works were ongoing there was a pervasive or systemic issue patent with the mortar. His evidence, having reviewed it in full, was that he had identified a number of issues which required a further solution.

Among these were the lime leaching issues already referred to above. 5.128 Insofar as the photograph 154 is concerned, Mr. Gilligan’s evidence was that this was taken of Wall 10 and was an area where the capping was incomplete and that he had taken the matter up with the Contractor who had said there was an issue with the supplier of the capping. He said he brought the issue in the photograph to the attention of the contractor “because it struck me that there could be other places where he would need to carry out remedial work here before completing the capping.” (Q.265, Day 20).

He then added that:- “I don’t think it ever got to that stage.” 5.129 I take this to be a reference to the summary exclusion of the Contractor from the Site the following summer. 5.130 Mr. Gilligan’s clear evidence was that the issue displayed in photograph 154 was different from the issue of leaching, as he saw it at the time. He pointed out that he had taken many photographs of the walls and many photographs of the tops of the walls and of missing cappings. Mr. Keenan reviewed all of those photographs as part of his review of the discovery made by the Third Parties and, while they were not in evidence, presumably he would have referred to them if they disclosed a problem.

Mr. Gilligan’s evidence on the photograph is clear: he saw this as a discrete issue to be fixed, not a problem running through the whole garden. While he agreed that if investigations had been carried out earlier, he might have discovered that there was a pervasive issue, his clear evidence (Q.280) was that he didn’t think such investigations were warranted or “I would have carried them out.” 5.131 Considering Mr. Gilligan’s evidence in full, therefore, it is clear that he was in fact conducting periodic visual inspections and that he was recording, not only the progress of the works, but issues which arose on the site.

As previously stated, many photographs were taken that did not show any problem with mortar. Mr. Keenan said that many of them were taken from a distance and that may well be so, but the evidence taken as a whole is that, when Mr. Gilligan saw an issue, he recorded it. Indeed, my understanding of his evidence is that he took photograph 154 precisely for the purposes of recording it as an issue which needed to be resolved. That evidence is, in my view, not just completely credible but important. It demonstrates, in my view, that Mr. Gilligan was conducting appropriate periodic visual inspections, that he had the defect in the mortar in this particular location under consideration, that he identified the defect as either a result of the delay in capping the wall or in the particular mix used in that section of wall, and that it was his intention that it would be remedied by the Contractor.

It was also, as is evident from photograph 154 itself, a wall where the ground level behind the wall is much higher than that in front, with the result that water could be expected to flow on to the top of the wall, which had not been capped. And on that latter point, Mr. Gilligan was clear that this would not just be a case of finally capping the wall, but of making good the defect which had emerged underneath. 5.132 In the circumstances, I am satisfied that, had Mr. Gilligan seen issues with the mortar in other locations, he would have identified them as issues.

The fact that only one photo disclosing an issue with the mortar has been identified from the great number of photographs taken during the Works and discovered to the defendant’s architectural expert in my view is indicative of a situation where no systemic issue with the mortar was patent prior to August, 2017, and where the issue recorded in photo 154 was reasonably perceived by Mr. Gilligan as a localised issue.

6: Expert evidence: inspection post-1 August, 2017

5.133 In addition to the direct evidence of Mr. Gilligan, a number of experts for both sides gave their opinion on whether the defects would have been ascertainable by way of periodic visual inspection prior to the exclusion of the Contractor from the site. 5.134 The key evidence in support of a finding that the defects were ascertainable was given by Mr. Keenan. He was quite adamant in his oral evidence that the defects would have been ascertainable prior to July, 2017. In reply to his basis for stating that the defect was patent, he stated (Day 12 Q. 57):

“Okay. As I say, I have run a building surveying practice in its own right since 2000 but doing works inspecting buildings back to the late 80s. One of the issues that is always looked at in a building is normally the pointing on a structure, on a wall, and the condition of it. Failures of pointing are certainly a feature. They only have their life period and repointing is an issue. So the forms of failure I have never seen of this nature. In my view, and when I saw it immediately, it was apparent to me that this would have been evident from -- I believe the mortar never set, it never set properly, and that that would have been evident.

Furthermore, I demonstrated from a photograph there that Mr. Gilligan had taken, that there was evidence beneath his gaze on the top of one of the walls and then we come to my actual inspection. My inspection occurred on 16th March 2018, at which time I observed this defect in the mortar pointing first to the warehouse and to the wall behind it, including the piers. Now the stone to the wall was the last piece of stone construction effectively carried out. It occurred sometime around late 2016, early 2017, so no more than 15 months before my inspection.

The first walls had been constructed, had started construction in late 2014. So, even if this defect had only started to appear over time, it would have been very clear from the earlier stonework that, within that time scale at worst, 15 to 18 months after the first walls were built, those would have become apparent. I say that, but I'm satisfied that this was apparent from day one. Well, sorry, not the day that the mortar was laid but within days.” 5.135 As that answer makes clear, Mr. Keenan based his opinion that the defects in the bedding mortar would have been patent prior to August, 2017, on two essential bases: first, he suggested that the defect would have been patent “within days”.

Secondly, he says that, as he observed defects in the bedding mortar in the cladding to the Warehouse and in that portion of reconstructed or new wall near the piers in Wall 1, in March, 2018, and that as that portion of the construction had been done in early 2017, it follows that the defective mortar in other areas would have been patent approximately 15 months after construction. And, as the walls were complete by late 2015, that meant that the defects in the bedding mortar in the walls that had not been pointed up would have been patent by early 2017. 5.136 He also refers to photograph 154, which I have already considered and found that it was reasonably interpreted by Mr.

Gilligan as disclosing only a localised issue where mortar appeared to be defective, not because it had not set properly, but because it had been subject to significant water ingress from being left uncapped. 5.137 Mr. Keenan’s evidence on the other two points are critical to the defendant’s case on this issue and I will now consider both of them in turn.

Mr. Keenan’s evidence: Issue (i): Whether the defect was patent “within days”

5.138 This suggestion can be dealt with relatively briefly. As set out above, Mr. Keenan gave his opinion that the defects in the mortar would have been visible “within days”. This is a very far reaching assertion and it is notable that he does not give a basis for it. No reason from his experience as an architect or the nature of the defect was identified by him as justifying this assessment and it was notable that neither Mr. O’Connell nor the two engineering experts voiced a similar opinion. 5.139 It is contrary to Mr. Goggin’s evidence that he inspected the retaining walls in mid- 2015 and saw nothing to alarm him in the Works. Even allowing for the fact that he was not inspecting the stonework, had this pervasive defect been as patent as Mr. Keenan suggests, one would expect him to have seen it. 5.140 It is also contrary to Mr. O’Connell and Mr. Sutton’s view that the mortar would have developed a “laitance” and seemed perfectly smooth immediately after application. While neither of them purported to put a time frame on that, it does not sit comfortably with an assertion that the mortar would have had a defective appearance “within days”. This opinion seems to me to be a matter of Mr. Keenan’s personal opinion rather than one based on his expertise and I do not accept that it is valid. It is contrary to the preponderance of the evidence. 5.141 It is also notable that Dr. Bolton, who as a materials scientist expert in mortar, did not give this evidence. I discuss his evidence as to when he thought the defect would have become patent in more detail below, but he certainly did not give evidence of any properties of mortar which would suggest that it would degrade this quickly. 5.142 Indeed, Mr. O’Connell was of the view that one would expect the mortar to develop a coarse appearance after it dried off.

5.143 This evidence is also, of course, contrary to the evidence of Mr. Gilligan who was present and saw nothing untoward in the course of the Works. 5.144 It has to be said that Mr. Keenan displayed a somewhat partisan attitude towards his client in the course of his evidence. He was remarkably reluctant to make concessions that would seem to have been obviously appropriate. For example, he did not concede that there was any contradiction in Ms. Barbouti claiming that she had no contract with the builder if she did not have a written contract, even though the Standard RIAI Blue Form Contract had been specifically mentioned to her as one that should be applied so as to ensure that matters such as insurance and liability for defects were dealt with, while happily imposing the obligations in the Standard RIAI Architect’s Contract on Mr.

Gilligan despite the fact that there was no evidence that this standard contract had every been mentioned by anyone at any time. 5.145 Secondly, he refused to acknowledge that Ms. Barbouti intended from at least early 2014 to carry out works in the Orchard. This was plain from the documentation such as invoices, valuations and meeting notes from that time, all of which Mr. Keenan had reviewed. In my view, he refused to acknowledge this because he had given a view that the Works could have been divided in three (House, Warehouse, and Orchard) and an appropriate scope for each drawn up separately and put to tender, and he did not want to acknowledge anything that would undermine that view.

However, it is abundantly clear from the evidence that Ms. Barbouti never categorised the Works in this way. Indeed, even the first quote of Works relating to the House, which Mr. Keenan said could have formed a sufficiently definite scope for a contract, was based on rates and provisional sums, and was not based on defined works. 5.146 Thirdly, Mr. Keenan would not accept that it was likely that Mr. Gilligan would have conducted a full inspection of the Warehouse and Orchard prior to the issue of a Certificate of Practical Completion in relation to either of them, even though this was the procedure which had been followed in relation to the House.

This was admitted evidence and it seems probable that the same procedure would have been followed in relation to the Warehouse and Orchard. Indeed, Mr. Keenan accepted that the provisions of the Standard RIAI Blue Form Contract were operated so far as payment and certificates were concerned. He was aware that a Certificate of Practical Completion issued pursuant to Clause 31 of that Contract and that this required the House to have been fit for occupation and not subject to major defect. It is, in fact, difficult to see how such a Certificate could safely be issued by an Architect unless there was some form of inspection to ensure there were no major defects. 5.147 These refusals on the part of Mr.

Keenan to accept the facts of the case as plain from the documentary and other undisputed evidence, in my view, undermines the independence that, as an expert, he is obliged to bring to the giving of his evidence. 5.148 I am of the view that his opinion that the defect would have been patent “within days” is not based on his expertise but is derived from an somewhat partisan view of the case in favour of his client. In view of the fact that no other expert witness felt competent to estimate the timescale within which the deterioration of the mortar would have become patent, I find that this is an opinion which is not based on Mr.

Keenan’s expertise as an architect, but purports to be simply a factual opinion, and I do not accept it.

Mr. Keenan’s evidence: Issue (ii): Whether the defects would have been patent while construction ongoing 5.149 I note from his evidence that Mr. Keenan first attended on 10 March, 2018, but could not inspect because there had been heavy snowfall. It was common case that heavy precipitation and frost would cause the weakly bound mortar to wash out and degrade further. From Mr. Keenan’s own evidence as to recent snowfall, I think it must be taken that he viewed Wall 1 and the Warehouse after a period of particularly inclement weather and it is accepted by all sides that precipitation would lead to a deterioration in the condition of the wall. Indeed, one of the points made on behalf of the Third Parties throughout the trial was that the Court could not, based solely on Mr. Keenan’s observations in March, 2018, safely draw the inference that the mortar had the same appearance prior to the exclusion of the contractor on 1 August, 2017. The other significant point made on behalf of the Third Parties was that, even if the degradation was becoming obvious prior to 1 August, 2017, it would have reasonably been understood by Mr. Gilligan as resulting from the delayed and incomplete capping of the walls, which was the responsibility of the Contractor. 5.150 There are a number of different strands in the evidence and in the submissions of the parties that require separate consideration.

- Area inspected in March 2018 was particularly defective and incomplete 5.151 The first issue is the precise location inspected by Mr. Keenan in March, 2018. I have already referred to the fact that it was inspected after a spell of inclement weather. More significantly, the location at which the defect in the mortar was first noted in March, 2018, (and which appears to be the portion described by Mr. Soule in his evidence also) was completely unfinished. The piers were not capped, the walls around the piers and the cladding in the Warehouse were completely unpointed, and the mortar in those locations is the worst example throughout the garden, according to Mr. Sutton. 5.152 The piers and walls inspected by Mr. Keenan in March, 2018, had already lain open to the elements for a full winter and it is clear from the evidence that, while any exposed bedding mortar might have degraded due to lack of protection over that period of time, this defective mortar would have deteriorated more rapidly.

5.153 When the portion of Mr. Keenan’s evidence quoted above was put to Mr. O’Connell, Mr. O’Connell responded (Day 23, Q.344): “So he says. Mr. Gilligan apparently didn’t, they are two architects, two experienced architects. When I saw it some years later, I have outlined what I saw as being the deficiency in it, which I would very much put down to the mortar having been exposed for a long period of time. 2017, it was already there for quite a substantial period of time. It would have gone through at least one full season. I would have expected that some degrading … would have been evident then. Whether that’s the degrading that Mr. Keenan is referring to or not, I presume it is, I don’t know. I would have seen it as a deficiency, if I were coming on the site immediately after the work had been carried out and I had seen what I had seen, I would have regarded it as being deficient, but not after the length of time that elapsed between the time it was done and the time that I saw it. So I can’t really say what Mr. Keenan saw, that was his opinion at the time. When I saw it, I have already outlined to you what my first opinion was. My current view on it would be that it has now been established by laboratory testing that the material is deficient and that what is seen as a degrading is in fact more likely to be due to the deficiency of the material and the failure to weather the walls and so forth, the exposure to weather, these are all factors to be taken into account.” 5.154 The tenor of that evidence is that Mr. O’Connell was of the view that the mortar in the location referred to by Mr. Keenan in his evidence would have degraded significantly since August, 2017, and further that the defect would in any event have presented to an architect exercising reasonable care as one caused by the incomplete capping of the new walls and consequent exposure to the elements, including one entire winter.

5.155 Ms. Barbouti relied on the evidence of Dr. Bolton in her closing submissions. Asked to comment on Mr. O’Connell’s report to the effect that it would be extremely difficult to see, on visual inspection of the face of the walls that the bedding mortar was defective, he stated: “Again I'm going to repeat myself. I think the globules should have been visible, I think you certainly would have seen lime leaching at certain points, and I think that the leaving, essentially, vast expanses of bedding mortar exposed without pointing it up would have also been poor practice and that would have raised questions in any mind as to why are you doing it that way.

But essentially I would have been looking at globules in the joints and I would have been looking at are there any others of lime leaching and they should have appeared within, at the outset, a couple of weeks. I mean, given the amount of binder depletion that the microscope photographs are showing, that it is occurring on multiple levels, it should have been visible on the surface of the joints and gradually coating the stones. They wouldn't have been as big as they are now but they would have started -- they should have been visible. Certainly in the worst areas they should have started to appear.

Especially where a new build wall is built on top of a historic wall and it is throwing that soluble water outside to form lime leaching. I would expect that that would be the first places where it would start to form.” 5.156 I have carefully considered that answer and I find it quite confusing as it appears to jump between and indeed conflate the appearance of the lime leaching with the question of whether the globules in the mortar would have been apparent. A number of features of it are such as to satisfy me that it does not constitute reliable opinion evidence to the effect that the globules of binder, and therefore, the defect, would have been apparent on visual inspection of the outside of the wall. 5.157 First, Dr. Bolton accepts that there would be a progression in the appearance of the defect.

Secondly, he concedes that, insofar as the defect was visible, it would have been visible “in the worst areas”. The evidence is that the worst area was the very area which Mr. Keenan inspected in March, 2018 and, this, of course, was the area where the work had not even been completed by 1 August, 2017. Thirdly, this answer hopelessly conflates the factual issues of lime leaching (which, by definition, is visible) and where it is likely to occur, with the question of whether the globules in the mortar would have been visible and when. Having considered that answer, it seems to me that the reference to “a couple of weeks” is a reference to lime leaching, which I have already dealt with, and not visibly degraded mortar. 5.158 Dr. Bolton was cross examined on this point and it was suggested to him that, as he had not seen the mortar until after it had lain open to the elements without protection for at least four years, he was not in a position to give evidence as to the condition of the walls in 2017 immediately prior to the contractor’s exclusion from the site.

He replied: “Yes, that’s correct. I wasn’t there. I have no information on how the walls appeared at that time.” That answer is very much in line with Mr. O’Connell’s view which is that the question of when the defects in the mortar became apparent could only be answered by someone who saw the walls at the time. It is notable that, like Mr. O’Connell, Dr. Bolton did not express any professional opinion on that issue but seemed to regard it as a question of fact. The preponderance of the expert evidence is to the effect that the mortar, being deficient, would have become degraded over time but the precise timescale is much less clear.

In this regard, I think it is highly relevant that Dr. Bolton, as a materials scientist who is expert in questions relating to the properties of mortar, was not in a position to put a timescale on the process of deterioration of the mortar. 5.159 As a materials scientist, Dr. Bolton readily agreed he was not in a position to opine on the standards to be achieved by a reasonable architect. However, if it was possible to describe the physical condition of the mortar four years earlier, one might expect him to offer a view.

Nevertheless, he was clear in saying that he could not say what the condition of the mortar would have been in 2017 (and, by implication, earlier). If that is so, it is difficult to understand how Mr. Keenan could offer such a view. 5.160 I have already found as a fact that no one raised the issue of obviously defective mortar with the Contractor or Mr. Gilligan prior to 1 August, 2017. I am satisfied that the appearance of the mortar viewed by Mr. Keenan in March, 2018, was significantly worse than its appearance in the same location prior to 1 August, 2017. I am satisfied that there had been significant deterioration.

- Whether it can be inferred from the fact that the defects in the mortar in the works under construction in August, 2017, were apparent in March, 2018, that defects elsewhere in the new walls were patent prior to August, 2017.

5.161 The next issue, and perhaps the one which is most critical to the claim for significant compensation in respect of the bedding mortar in the new walls, is whether it can be inferred from the fact that the defects in the mortar in the Warehouse and around the piers had become evident in a period of something between approximately ten and eleven months, that the defective mortar in the other walls, which had been completed by the end of 2015, would have been visible prior to 1 August, 2017. 5.162 I say ten to eleven months because, so far as the area where the defect was discovered by Mr. Keenan in March, 2018, was concerned, the photographs taken by Mr. Gilligan on his site visits show the cladding of the Warehouse beginning around April, 2017, and the wall area around the piers being at a very early stage of construction in May, 2017. So the construction in that area commenced ten to eleven months prior to Mr. Keenan’s inspection.

5.163 In the context of the timeline of the construction of the walls in the Orchard, that is a relatively short period as the rest of the walls were substantially complete by the end of 2015. On the logic of the defendant’s submission, therefore, Mr. Gilligan should have seen the defects in the Walls 7, 8 and 9 by early 2017. 5.164 The logic of this submission does not apply to Wall 4 which was partly pointed and the remainder covered by earth until approximately September, 2016. I do not think that the timeline is sufficiently definite to say on the balance of probabilities, that any defects in the bedding mortar in Wall 4 were patent by the end of July, 2017. 5.165 Secondly, insofar as the remainder of the walls are concerned, and indeed insofar as I am wrong in my conclusion about Wall 4, I nevertheless do not accept the logic of the defendant’s argument for a number of reasons. 5.166 To begin with, the evidence is that the mortar in the area of the piers and the Warehouse is particularly poor. Mr. Sutton gave express evidence of this. In addition, these areas were completely uncapped, unfinished and unpointed, and therefore completely exposed to the elements. They cannot necessarily be equated with walls in other parts of the garden where the defect may not have been as severe and indeed where the walls may have been in a more sheltered area. 5.167 Secondly, there is very little direct evidence of the condition of the walls in 2017 or indeed in 2018. One of the issues which has troubled me about the evidence is that, unlike Dr. Bolton’s report from 2021, Mr. Keenan did not produce a full survey of the walls dating to 2018. Similarly, Mr. O’Neill said that he did not conduct a full survey of the walls at any time prior to trial. 5.168 To be fair to both of them, it seems that Mr. O’Connell also made a more cursory examination than Dr. Bolton did. However, it is the defendant, and not the Third Parties, who bears the burden of proof.

5.169 The problem which arises from that is that there is now no contemporaneous evidence from 2018 as to the state of the mortar in each of the walls. There is no report in evidence from that time dealing with each of the walls nor is there any photographic record whatsoever. Photographs would have been particularly helpful in this case in assessing the appearance of the walls at the relevant time. 5.170 Furthermore, there is no photographic evidence from late 2017. Ms. Barbouti had ample resources available to her and, had defects been visible in late 2017, it is surprising that neither she nor someone acting on her behalf ever recorded any such defects. I have already rejected as lacking in credibility Mr. English and Ms. Barbouti’s claim to have pointed out these defects in 2016. Similarly, neither Mr. English nor anyone else – including Ms. Barbouti

- pointed them out in 2017. The only evidence from 2017 that I have seen is Mr. Gilligan’s photographs from discovery and from his site inspections in the early part of that year, and these, other than photograph 154, do not disclose any difficulty with the mortar. 5.171 Balancing the complete lack of evidence from 2017 or earlier as to any systemic or pervasive defect in the bedding mortar, as against the undoubted fact that Mr. Keenan identified this as an issue in March, 2018, at least so far as Wall 1 near the piers and the cladding to the Warehouse are concerned, I think the most likely explanation is that the area which was unfinished and most exposed to the elements over the winter of 2017/2018 drew Mr. Keenan’s attention to the issue and it was discovered from there. I do not think it has been demonstrated that the defect throughout the new walls was patent prior to August, 2017. In my view, the burden of proof has not been discharged on that issue. The Third Parties are, therefore, not liable to Ms. Barbouti for the defects in the bedding mortar and in the new walls. 5.172 In particular, I am satisfied on the balance of probabilities that there were, at most, localised areas of poor mortar, such as that identified by Mr. Gilligan in photograph 154. It is possible – though I don’t think it has been established to the requisite standard – that there were a limited number of other such occurrences throughout the site. In my view, those would not necessarily have put Mr. Gilligan on enquiry as to the pervasiveness of the issue.

- Whether the defect would have been attributed to a different cause 5.173 However, if I am wrong in that, it must be stressed also that, insofar as the bedding mortar was visibly defective prior to August, 2017, as Mr. O’Connell said, it is what one would understand as the cause of that defect which is important. There is a very real danger here of assessing the evidence with the benefit of the Sandberg Report, that is, with hindsight. The question is whether, insofar as the defects in the mortar were visible prior to August, 2017, it ought to have been assessed by Mr.

Gilligan as resulting from defective mixing, or whether he might have attributed it to another cause. 5.174 I am satisfied that, insofar as the defects in the bedding mortar were visible prior to 1 August, 2017, they would most probably have been attributed to the fact that the capping of the new walls had never been completed and that many of them had never been pointed. In other words, the defect would have been assessed as one arising by reason of excessive water ingress, and not because of any problem with the mixing of the mortar. 5.175 Mr.

O’Connell inspected the walls on 30 March, 2021, in the company of Mr. Keenan and the expert architect retained for the Contractor. His recollection was that the walls were discussed but it wasn’t a central issue. It is strange that Mr. Keenan, who is qualified to say what an architect should have observed on periodic visual inspection, did not raise Mr. Gilligan’s liability for the bedding mortar at this time, particularly given that the Third Parties had been joined to the proceedings the previous year. Indeed, the Third Parties were not even joined until early 2020, some two years after Mr.

Keenan first inspected. The focus seems to have been on the existence of defects in the House, as opposed to any issue with the walls of the Warehouse or in the Orchard. 5.176 Even in his initial Third Party Report dated 23 December, 2021, after the issues about the mortar had been escalated to a major area of concern, Mr. Keenan did not, in his summary on the Third Party’s liability, make any mention of Mr. Gilligan’s failure to conduct appropriate periodic inspections, or to fail to identify the defect in the course of such inspections. In an eleven paragraph summary in section 10 of his report, Mr.

Keenan focusses on the failure to put a contract in place and to control costs, and only mentions the quality of the work in the course of an oblique reference to the issuing of certificates which, having regard to his expansion on this issue in his oral evidence, seems to be based on an incorrect belief that the issue of the certificate constituted some kind of guarantee that the workmanship was without defect. This is not within the scope of the architect’s duty of care having regard to the terms of his retainer, which clearly limits the architect’s duty to one of identifying patent defects in the course of periodic visual inspection. 5.177 It should also be noted that, Mr.

Keenan himself commented (at para. 61 of that report) that “my initial concerns in relation to the workmanship, in particular related to the mortar and the mortar pointing, are a major issue with significant consequences, and which have become more apparent with time, as the mortar has continued to deteriorate, and as confirmed with the benefit of analytical investigation.” It is notable that Mr. Keenan seems to be referring here to concerns which he had from his early involvement, presumably from his inspection in March, 2018, and that he categorises them as “concerns in relation to the workmanship”.

This is obviously a matter for the Contractor. What is notable about this statement in his report, which was specifically directed at the potential liability of the Third Parties as architects, is that it suggests – though it is not explicit – that the defects in the mortar only became visible over time. It certainly does not assert that this should have been noticeable while the Works were ongoing. 5.178 Although that statement is ambiguous in that it does not say how long, in Mr. Keenan’s opinion, it would have taken for the defects in the mortar to have become apparent on visual inspection, I do not think on any fair reading it can be said either to suggest that the defective workmanship was apparent within days – as he subsequently asserted in his oral evidence – or indeed that it should have been apparent to the Third Parties at any time while the Works were ongoing. 5.179 In his Supplemental Report of 12 October, 2022, there is again no mention of the defective bedding mortar as a patent defect.

There is little in this Report about the bedding mortar at all, and it appears to be principally concerned with the role of Messrs. Moloney Millar and other consultants such as JV Tierney, who dealt with mechanical and electrical works. While there is a catchall statement in the very last paragraph asserting that the Third Party failed to inspect the Works “to ensure compliance with expected standards”, there is simply no reference to the bedding mortar or anything which would identify to the Third Parties that it was being alleged that they had negligently failed to identify the defects in the bedding mortar as a patent defect in the course of the periodic visual inspections which they had conducted while the Works were ongoing. 5.180 Indeed, the issue of lack of protection for the works appears to be raised in that Report as the basis of a complaint that Mr.

Gilligan had failed in his duty to protect the Works (other than the newly constructed retaining walls) from the elements and that, the walls having being unprotected during the winter of 2015 and one wall (unspecified) not having been protected during the winter of 2016, “[p]hotographs show deterioration to the finish of the top of the exposed walls”. In that Report, therefore, the deterioration in the mortar appears to be linked to exposure to the elements over time, and not inadequate mixing which should – as Mr. Keenan subsequently claimed in his oral evidence – have been apparent to Mr.

Gilligan while the Works were ongoing. 5.181 In light of the conflicting position of the parties at trial, it is telling that Mr. Keenan does not identify the failure to identify the defects in the bedding mortar as a matter which Mr. Gilligan should have identified and directed the Contractor to remedy. Indeed, this Report supports the position of the Third Parties at the trial that exposure to the elements was a likely cause of visible deterioration of the mortar and that any defects which were visible were ones which were reasonably identified as being linked to the ingress of water, mostly from the difficulties with the capping but also (for example, in the case of Wall 8) due to the impact of large amounts of surface water on the site. 5.182 That Supplemental Report of Mr.

Keenan was produced shortly before the Sandberg Report became available. It was the Sandberg Report which demonstrated that the bedding mortar had not been adequately mixed. Clearly, the Contractor was primarily liable for that issue. 5.183 Under cross-examination, it was put to Mr. O’Connell (by reference to a photograph of Wall 1 taken from inside the garden, Tab 3 of the booklet of photographs) that Mr. Gilligan should have seen the defective bedding mortar in the unpointed area of Wall 1. He was brought back to this issue on re-examination and he stated:

“There is going to be a washing out of the [laitance] and … the mortar will start showing a coarser surface, a rougher surface. Not, I think, as extreme as what we have seen when I came to site, which was much further on and when there had been further washing out, and which we know now was contributed to by the fact that the mortar was itself deficient.” 5.184 Mr. O’Connell’s view, therefore, was that it was only as it washed away progressively by rain and by water flowing from inside out and by rain on the face of the wall that the defect would become apparent.

The defect would become patent but only because of a progressive process over time. He gave specific evidence that Mr. Gilligan did not, insofar as he failed to note the defect prior to 1 August, 2017, fall below the standards of a reasonable architect, saying: “I think in the circumstances if I had seen that walking around the site and if I was aware of the background and all of the various circumstances which we have outlined it wouldn't necessarily surprise me to -- or at least I would expect to see some measure of coarsening of the surfaces.

But I would say that by the time I saw it, it was much further degraded and the concern -- there would have been a concern in relation to the exposure of the bedding mortar, I think, at that stage.” 5.185 Under cross examination, Mr. O’Connell also said that he thought that the “primary factor” in the degraded condition of the bedding mortar was the fact that the stone slab capstones had not been pointed up. (Q. 234, Day 23). 5.186 In my view, what has happened in this case is that Mr. Keenan correctly noted the defects in the worst area of the site in March, 2018.

There was already a situation of dispute with the Contractor and proceedings at this stage were very much in contemplation. However, when Mr. Keenan viewed the defect, he seems not to have assessed it as something which would suggest any liability on behalf of the Third Parties. Weighing all of the evidence, I am satisfied that he did not think at that time there was any liability on behalf of the Third Parties because he attributed the significant deterioration which he saw to the fact that the Works were unfinished and exposed and that the degrading of the mortar had been caused by water ingress and exposure to the elements. 5.187 The course of these proceedings strongly suggests that even the defects noted by Mr.

Keenan in March, 2018, were not interpreted by or on behalf of the defendant as any failure on the part of Mr. Gilligan for some considerable time. Indeed, it was not until oral evidence was given at trial that it was specifically asserted that he should have observed the defective mortar in the course of his inspection. Indeed, Mr. Gilligan was criticised in Mr. Keenan’s reports for not protecting the mortar, which is consistent with a view at that time that the mortar was degrading due to exposure to the elements. 5.188 When Mr. Gilligan took photograph 154 in the winter of 2016/2107, he interpreted it as a problem and with the mix.

However, he did not infer from that that the mixing had been poor throughout, as a problem with the mix in one area did not mean there were problems throughout the site. He interpreted it as a localised issue and one significantly contributed to by the absence of capping, which was a systemic issue throughout the site due to problems with the supplier. 5.189 Mr. O’Connell, who I found to be an impressive witness, said that he did not think the deficiency in the mortar would have been apparent while the works were ongoing. He said (Day 23, Q. 116):

“It really became apparent over time and perhaps to a certain extent accelerated washing out of the mortar as a result of the walls not being capped.” 5.190 In my view, insofar as there were multiple areas where defective mortar could be observed throughout the Orchard prior to August, 2017 – and I reiterate that I am not satisfied on the balance of probabilities that there was any visibly defective mortar other than that recorded in Mr. Gilligan’s photograph - Mr. Gilligan could not reasonably have been expected to deduce from that that there was a problem with the mix throughout the site, and it was much more likely that, had he noted additional incidences of degraded or deficient mortar, he would similarly have thought that the lack of capping was causing the problem.

Additional issue 1: Whether Mr. Gilligan’s duty to conduct periodic visual inspections involved an obligation on him to inspect the walls between late 2016 and 1 August, 2017 5.191 In addition to the reasons above, I am not satisfied that the defendant has shown that the Third Parties are liable for failure to discover the defect in the mixing of the mortar prior to 1 August, 2017, in that it has not been shown that the duty on Mr. Gilligan to conduct periodic visual inspections in late 2016 and the first half of 2017, included any duty to conduct any detailed survey of the walls during that time. This is an issue which the defendant’s experts did not really address in their evidence. 5.192 The evidence is that the walls were substantially finished in late 2015, and there was very little activity in site in the first six months of 2016, due to the need to regularise some planning issues. 5.193 I think it is clear from the authorities, and also from the evidence of Mr. O’Connell, that the duty to conduct periodic inspections, particularly prior to the period of final measurement, is not one that requires an architect to inspect each piece of work on each visit. The architect is entitled to prioritise, perhaps, for example, focussing on urgent issues which have arisen or works which are less standard than the construction of a wall – where the expert evidence was that one would not normally expect a contractor could be trusted to mix the mortar correctly. 5.194 First, I think the evidence is clear, so far as the defects in the area around the piers and in the cladding to the Warehouse are concerned, there had really been no opportunity to inspect the Works prior to exclusion of the Contractor. The Warehouse was under construction in March and April, 2017, with the photographs taken by Mr. Gilligan during his inspections on

14 and 23 March, 2017, showing no stonework yet done to the Warehouse, but with stonework visible on some (but not all) of the elevations of the Warehouse in the photographs taken during the inspection on 10 April, 2017. As seen from photo 088/A on p. 235 of 258 of the Book of Site Inspections, the longer elevation of the Warehouse appears to be clad in metal, or at any rate in a material other than stone. It therefore appears that the stonework to the Warehouse commenced in the last week of March or the first week of April, 2017, approximately three months before the Works ceased. 5.195 Similarly, the steel reinforced piers and the walls surrounding them, part of what is now Wall 1, were at a very early stage of construction on 17 May, 2017, as is evident from the photographs taken during inspection no. 91. Mr. O’Connell said that they were a bit further advanced but it remains the case that they were at a very early stage of construction. Mr. Gilligan records inspection no. 92 as having taken place on 1 June, 2017, which appears to have been taken up with sanitary fittings for the Warehouse, the water treatment plant, and the construction of the pit for a proposed waterfall, which was situate at the western end of Wall 4, very near the piers on Wall 1. The next inspection was on 13 July, 2017, and this records the reduction of ground levels to the south of the Orchard. There was also a nighttime inspection on the night of 12/13 July, 2017, to test proposed lighting. Finally, there was an inspection on

14 August, 2017, by which time of course works had ceased, recording unfinished work in the house and garden. There is an additional inspection referred to as inspection no. 95, but this relates to access to the estate. 5.196 It is therefore clear that work on the cladding to the Warehouse and to the piers and new portion of Wall 1 had not concluded at the time the Contractor was excluded from the site. Not only that but there were many other issues, including of course any final snagging of the House, which had to be attended to by Mr. Gilligan on his visits. The cladding to the Warehouse was a late addition by Ms. Barbouti which necessitated alterations to the roof of the Warehouse as the addition of the stone meant that the roofing already designed did not provide the necessary overhang.

5.197 The six inspections between the cladding of the Warehouse in early April, 2017, and the end of July, 2017, were taken up with such diverse matters as the overall layout of the Orchard (As shown by large scale images in inspections 89 and 90), the construction of the pergola (inspection no. 91), specific issues in the Warehouse relating to sanitary fittings and the construction of the pit for the waterfall (inspection no. 92), reductions of the ground levels to the south of the Orchard (inspection no. 94), external lighting (inspection no. 93), and even the double yellow lines on Derrybawn Bridge, which appears to be outside the property (inspection no. 90). 5.198 Given the clear evidence of Mr. O’Connell about the nature of periodic inspection, the manner in which the attention of the architect may be diverted to immediate issues on the site

– of which there seemed to have been many – right up to the termination of the contract, I am satisfied that Mr. Gilligan did not fall below the standards of a reasonable architect in failing to notice any defects in the bedding mortar in the stone cladding to the mortar or in the portion of Wall 1 near the gates between commencement of those works in late March/early May, 2017 (in the case of the Warehouse) or June, 2017 (in the case of Wall 1). Indeed, given Mr. O’Connell’s evidence that mortar generally is not an issue giving rise to difficulties on a construction site, and that a contractor can normally be trusted to do that work, Mr.

Gilligan did not fall below the standards of a reasonable architect in how he conducted those inspections and would not have done so even if he had paid no particular attention to the mortar being applied to the Warehouse and the area around the piers on Wall 1. The work was still ongoing and there was nothing unusual in the construction process which required particular supervision by Mr. Gilligan. 5.199 For similar reasons, I do not think it has been established that Mr. Gilligan, insofar as he did not inspect the walls that had been completed in 2015, in either late 2016, or the first half of 2017, fell below the standards of a reasonable architect.

That work was complete, other than the capping to the walls. Mr. Gilligan was evidently alive to this issue, and of course took photograph 154 to record the issue as one which needed to be addressed. But I do not think it could be said that he was under a duty to conduct repeated inspections of the wall network during this time. The expert evidence and the caselaw both support the view that he was entitled to focus on the matters in hand. 5.200 This issue, of course, ties into a significant issue raised by the Third Parties in their defence: they say that, prior to the issue of any Certificate of Practical Completion relating to the Warehouse or the Orchard, another full survey would have been conducted by Mr.

Gilligan for the purposes of satisfying himself that there were no major defects in the Works and that they were generally fit for occupation. This was the procedure followed in relation to the House in the spring of 2016. 5.201 Contrary to Mr. Keenan’s refusal to acknowledge that this would have been done, I think it is probable that Mr. Gilligan would have conducted a full inspection of the Warehouse and the Orchard prior to issuing any such Certificate in relation to either portion of the Works. He never had an opportunity to do so (or to rectify the issues he had identified as requiring attention before the Works were completed and the Final Account prepared) because Ms.

Barbouti terminated the Contractor’s employment and the Works ceased. Mr. Gilligan was therefore prevented by Ms. Barbouti from carrying out that inspection. I deal with this issue further in section 10, when I consider s. 34 of the Civil Liability Act, 1961. 5.202 By way of a final point, it was suggested that, if Mr. Gilligan had noted the defects in the haunching of the historic walls, and in particular the lime mortar in which the stones were to be bedded, this would put him on notice of the defect in the bedding mortar in the newly constructed walls. 5.203 I simply do not see how this follows.

Inspection of the haunching of the historic walls, which were repointed, built up, and capped, would be most unlikely, in my view, to put Mr.

Gilligan on notice of defects in the cementitious bedding mortar in the new build areas, or even in the newly constructed portions of historical wall. These seem to be two different aspects of the Works and I do not see how there is a meaningful causative link between them.

Additional issue 2: Whether trial mix testing would have revealed the defect 5.204 It was contended that, had Mr. Gilligan conducted trial mix testing during the build, the defect would have been disclosed. Mr. O’Connell’s evidence was to the contrary. He said at para. 28 of his November, 2022 report that trial mix testing would have identified the components of the mortar but it would not have identified issues with the adequacy of the mixing and therefore would not have identified the defect. 5.205 Similarly, Mr. Sutton, an engineering expert and therefore familiar with the trial mix process as part of his work, was asked about a similar view which he had expressed in his report. He stated (Day 24, Q. 455): “No. Unlike concrete and so on, concrete testing is carried out when a Readymix truck arrives at the site and so on, that a cube is made and it is cured in a proper temperature and water environment et cetera and then sent away for testing at seven and 28 days. Because you are actually batching and mixing mortar in very small amounts, and when you go to do trial mixes, it is always the case that attention, more attention will be paid to the trial mix with respect to the trial itself. It doesn't necessarily represent an issue such as poor mixing. You probably wouldn't get that from a trial mix et cetera. The trial mixes are normally just to make sure from a hydraulic lime and lime pointing of view that you are getting what you should get if it was all mixed properly and so on and so forth.”

5.206 Dr. Bolton gave evidence, which I do not accept, that trial mix testing would have identified the issue with the mix, not because the test itself would disclose the issue but because the person conducting the test would have seen the globules. I don’t accept this. This is a continuation of his mistaken belief, disputed by all of the expert architects and engineers for both sides, that globules would have been visible in the mortar itself just after it was mixed. 5.207 I have no hesitation in accepting the evidence of the Third Parties’ experts, Mr. O’Connell and Mr. Sutton, over the views of Dr. Bolton. Mr. Sutton gave very clear evidence as to the limitations of trial mix testing and I am satisfied, first, that the NRA Specification did not oblige Mr. Gilligan to conduct any such tests so far as the new walls were concerned, and secondly, that it would not have disclosed issues with the mixing of the mortar.

Additional issue 3: Alleged concession of liability

5.208 Finally, a submission was made during oral closing submissions on behalf of Ms. Barbouti that Mr. Gilligan had conceded liability for the defect in the bedding mortar. Paragraph 151 of Mr. Gilligan’s second witness statement was put to him., which reads: “By far the most significant of the claims being made here relates to the mortar used in the walled garden. It is accepted by the Third Parties’ experts that remedial work is required to these walls. However, I do not accept that I have any responsibility for these defects”. 5.209 The succeeding paragraphs in that witness statement go on to deal with the role of Messrs.

Moloney Millar, for example, in supplying the NRA specification which was sent to Mr. Gilligan who then gave it to the contractor. 5.210 In cross-examination on Day 20 p. 38, Q. 218, after a series of questions in response to which Mr. Gilligan agreed that he had responsibility for various aspects of the design and supervision of the walls, the last sentence of that paragraph was put to Mr. Gilligan but without producing the witness statement for reference or reminding Mr. Gilligan of the remainder of the paragraph. Mr. Gilligan was then asked was it not the case that he bore the responsibility for the stonework and the mortar, or at least some, and Mr.

Gilligan agreed that he bore some. 5.211 In my view, on any fair reading of the exchange, this was not a concession by Mr. Gilligan that he was liable for the defects in the bedding mortar but was rather an acceptance by him that it was he and not Moloney Millar who was responsible for conducting the necessary inspections. Elsewhere in his evidence he was quite adamant that he did not see defective bedding mortar and indeed, insofar as the wall top in Photograph 154 was concerned, he stated that it remained his view, as of the date of the trial, that the defect shown in the photograph was caused by surface water at that particular point. 5.212 It is also, of course, the case that Mr.

Gilligan accepted liability for the defects to the haunching of the historic walls and, given the manner in which the question was put, that is, without clarifying for the witness that the statement he was being asked to retract related solely to issues with the mortar, insofar as Mr. Gilligan conceded legal liability as opposed to responsibility for the relevant inspections, he may well have been referring to his acceptance of liability in relation to an entirely different defect in the walls, that is, the haunching. But I think the better view is that he was accepting that it was he and not Moloney Millar who was responsible for conducting periodic inspections so far as the mortar was concerned, as this was an issue which had been raised prior to the commencement of the trial but which fell away during the trial.

Section 6: Alleged defects in the historic walls

6.1 There were, essentially, three defects alleged at one time or another in relation to the historic walls (original portion of Wall 1, Walls 2, most of 3, 5, 6, most of 11, and 12). These were:

a. defects in the haunching or capping of the historic walls

b. use of a cementitious instead of a lime mortar for repointing, and c. flaking of the repointing mortar.

6.2 The Third Parties conceded liability in relation to the first complaint, and the only issue for determination was the respective responsibility of the Third Parties on the one hand and the contractor on the other, for the purposes of s. 17 (2) of the Civil Liability Act, 1961. This issue is dealt with in section 10, below.

6.3 As a preliminary remark, Dr. Bolton, though he initially recommended a “rebuild repair” of Wall 2, accepted under cross examination that it did not need repair. He similarly gave no evidence that Wall 12 needed repair. This is consistent with the initial Schedule of Defects and Snags prepared by Mr. Keenan in April, 2018, which did not raise any significant issue in relation to the historic walls, other than the issue of inadequate haunching, which has been conceded. In the Preliminary Schedule of Remedial Works and Repairs drawn up by Mr. Keenan in February, 2021, there was similarly no works recommended in relation to Walls 2 or 12, and no issue raised in relation to the historic portion of Wall 1, or Walls 3, 5, 6, 11, or 13, other than the inadequate haunching.

6.4 However, it is necessary to determine whether it has been shown that there is a defect under the remaining two headings and, if so, whether the Third Parties bear any responsibility or liability for such defects. Due to the nature of the evidence on this issue, together with the fact that they both related to the pointing and repointing mortar used on the historic walls, the two issues can be dealt with together.

Alleged defects in pointing of historic walls

6.5 It was accepted by the third parties that the historic walls should have been repointed with lime mortar and, furthermore, that Mr. Gilligan ought to have conducted tests of the mortar on a weekly basis so as to comply with the NRA Specification which he accepted he did not do.

6.6 In the Valuations or Claims issued to Mr. Gilligan by the Contractor it was specifically stated that the repointing had been carried out with a lime mortar. Mr. O’Connell opined in his Supplementary Report that this was evidence that the Contractor was on notice that lime mortar was required and I agree. The reference to the use of lime mortar in the repointing of the historic walls was a clear representation to the Third Parties and, by extension, Ms. Barbouti, that lime mortar was in fact being used to repoint the historic walls.

6.7 However, if in fact the Contractor did not use lime mortar, Mr. Gilligan would not have been misled by the reference in the Valuations to lime mortar as he should, in any event, have been testing the mortar used. If it was not lime mortar, that would have been disclosed by the testing.

6.8 The real question, therefore, is whether it has been shown that the mortar used to repoint the historic walls not in fact lime mortar. If it was not, that is a defect and Mr. Gilligan is liable in contract and tort to Ms. Barbouti for the raking out and repointing of the historic walls as he failed to discover the defect by testing as required by the NRA specification.

6.9 Two mortar samples, tested by Sandberg, which it was originally thought had been taken from the historic walls and which were reported as being cementitious, rather than lime, mortar, were in fact taken from reconstructed sections of the historic walls and I deal with those in section 8, below.

6.10 So far as the Sandberg Report is concerned, only one sample was taken from any part of the historic walls: Sample 8, taken from Wall 6. The Sandberg reported that this was a historic, lime-based bedding mortar.

6.11 Dr. Bolton was of the opinion that the mortar used to repoint the historic walls could be anything of a family of modern hydraulic lime mortars but the only way to know what it was would be to test it. The problem for the defendant is that she bears the burden of proof on this issue, and it seems that the pointing mortar in the historic walls was never tested. In the absence, therefore, of any test-based evidence to the effect that the mortar used in pointing of the historic walls was cementitious mortar instead of the required lime mortar, it is my view that the defendant has failed to show that the historic walls were repointed with cementitious mortar and the burden of proof has not been discharged.

6.12 In those circumstances, the Third Parties bear no liability for the repointing of the historic walls.

6.13 I should add that the evidence of any defect in this mortar was limited, at best. Dr. Bolton’s overall position on this was that the repointing mortars were already showing signs of stress and alteration and if they had been “put in properly and set properly and performing properly, we shouldn’t see any of these defects in any location. Unless there was some special failure.” I think it is clear from that evidence that Dr. Bolton identified no particular failure in relation to the repointing.

6.14 Just as importantly, Dr. Bolton agreed that there was no evidence to say that the pointing mortar in the historic walls was defective from the beginning. There was no evidence to say it had been poorly mixed or what was happening inside that mortar.

6.15 He also said in his evidence that the experts, when taking samples for the purposes of the Sandberg Report, wanted a historic sample “as a comparison” (Day 16, Q140). Sample 8 was taken from an area in Wall 6 where there was a breach and the historical mortar was accessible.

6.16 This suggests that there was no great concern about the mortar in the historic walls and explains why the sample taken from the historic mortar was of bedding mortar rather than pointing mortar. Needless to say, the bedding mortar was part of the historic fabric of these walls and was not part of the Works so the taking of that sample could not have been to attempt to analyse the works done by the Contractor or to identify any defects in the work done. However, it is telling that no sample was taken of the pointing mortar. It does not seem to have given rise to any concerns.

6.17 Furthermore, I think it is clear from the evidence that any defect in the mixing or composition of the mortar was not ascertainable prior to 1 August, 2017, or indeed throughout 2018, on periodic visual inspection. Mr. Keenan in his Schedule of Defects and Snags from Apil, 2018, did not mention this as an issue at all and it appears not to have been raised until Dr. Bolton inspected the walls in 2021.

6.18 This is consistent with the Third Parties’ position that there was no difficulty with the pointing of the historic walls save insofar as it may have deteriorated more rapidly as a result of the admittedly defective haunching, which permitted rainfall to enter the wall for a number of years, leading to deterioration of the pointing to a limited degree near the tops of the wall. Insofar as this consequential deterioration is concerned, the Third Parties rely on s. 34 of the Civil Liability Act, 1961: because Ms. Barbouti did not protect or repair the Works for the years between the exclusion of the Contractor and the inspection by Dr. Bolton in 2021, any defects observed by him in the pointing mortar would, in any event, have resulted from Ms. Barbouti’s failure to mitigate her loss in the interim. I deal with this in section 10, below.

Conclusion

6.19 However, my principal finding as regards the issues raised in relation to the pointing of the historic walls is that no defect – whether by the use of inappropriate cementitious mortar or otherwise – has been shown to exist and Third Parties therefore bear no liability to the defendant for any issues that may be coming to light as regards the pointing of the historic walls.

6.20 The Third Parties conceded liability arising from the inadequate haunching or capping of the historic walls prior to trial, and the degree of responsibility which they bear for the remediation of that haunching or capping, and any consequential deterioration of the pointing mortar, is dealt with in section 10.

Section 7: Reconstructed historic walls

1. Introduction

7.1 These walls can be divided into two categories: those that had sections entirely reconstructed and those that had been repaired. Some walls, such as Walls 1, 3, 8 and 11, had sections that were wholly reconstructed, and those sections were, to all intents and purposes, new walls. Frequently, these sections were built on top of lower sections of the original historic wall, which remained.

7.2 No sample of mortar was taken from those portions of the historic walls that had been merely repaired. There was, therefore, no evidence as to the type of mortar used in repairing the historic walls.

7.3 As regards new sections built on top of or as part of historic walls, Mr. Keenan was of the view that lime mortar should have been used in those sections so that they would bond adequately with the existing walls per the NRA specification. The NRA specification is in other respects adequate to provide all necessary specifications to the Contractor, but does not explicitly deal with this particular issue. The parties have requested a determination as to whether these sections of wall should be regarded as newly constructed (in which case, they were appropriately constructed with cementitious mortar), or historic, in which case they should have been built with lime mortar, as Mr. Keenan suggests.

7.4 Mr. Keenan also expressed disapproval of the pattern of the stone in the new and reconstructed walls and was of the view that insufficient harmony with the pre-existing historic walls had been achieved. I am going to refer to this as the “conservation matching” issue.

2. How the reconstructed portions should be classified

7.5 The significance of this for the parties is that it is accepted, based on samples taken for the Sandberg Report, that these sections were built with cementitious mortar. If they were more properly classed as historic walls, then not only should they have been constructed with lime mortar as required by the NRA Specification, but Mr. Gilligan should have asked the Contractor to provide the results of aggregate grade-tests to him each week, as required by para. 2464.1 of the NRA Specification.

7.6 The result would be that Mr. Gilligan had failed to discharge his duty to Ms. Barbouti to ensure that these portions of walls were constructed with lime mortar, and he would be liable to her, subject to apportionment under s. 17 (2) of the 1961 Act, which will be considered further in section 10 below, for the cost of reconstructing these portions of the wall.

7.7 On the other hand, if the Contractor correctly understood the newly constructed portions of the old walls as new walls, then it seems that they are likely to have been built with the same defective bedding mortar due to the same problems with mixing, as occurred when constructing the entirely new walls. The Third Parties would only be liable for the costs of remediating that issue if it can be shown that the defects in the bedding mortar ought to have been discovered by Mr. Gilligan as part of his periodic visual inspections.

7.8 I have already concluded in section 5 that, first, the defendant has not shown that the defects in the bedding mortar in the new walls were patent before 1 August 2017. Secondly, I have concluded that, even if they had been patent, they would reasonably have been understood as being problems following on from the inadequate capping of the walls leading to excessive water ingress, and not from a deficiency in mixing the mortar.

7.9 In truth, I received very little by way of submission from either side as to how I should determine this issue. Mr. O’Connell was of the view that, where the reconstructed sections had a “beginning, middle and end”, as he put it, then they could properly be regarded as new walls. He also gave compelling evidence, dealt with in more detail below, as to why good conservation practice did not require that either the new walls or the newly constructed portions of the old walls should adhere to the building methods, including the coursing or pattern of the stone, as the old ones.

7.10 That being the case, it is my view that it has not been shown that Mr. Gilligan or the Contractor erred in treating these portions of the wall as new walls.

3. Whether repair of historic walls adequate

7.11 I understood Mr. O’Connell’s evidence to be to the effect that where there were more minor repairs of a historical wall, such as the breach in Wall 6, in that case, the repair should not be classed as a new wall. However, I don’t have any evidence on whether such repairs were done with the cementitious as opposed to lime mortar, as none of those areas were tested. It cannot, therefore, be shown, that they were not repaired with lime mortar.

7.12 Dr. Bolton made specific criticisms of how historical walls were prepared for the capping, and Mr. O’Connell said that these could be resolved by “grouting”. However, the Third Parties’ position was that Ms. Barbouti never instructed the repair of the historical walls in this manner, and this was, in effect, something that Dr. Bolton had noted as part of his survey rather than anything to do with the Works carried out by the Contractor. There can, therefore, be no liability for failure to grout the historic walls as part of the Works.

7.13 In the circumstances, it seems that there is no evidence of inadequate repair (other than the admitted defect with the haunching or capping of the historical walls), and no liability to Ms. Barbouti in respect of the newly constructed portions of the historical walls.

4. “The Conservation Matching issue”

7.14 Perhaps most importantly, so far as the reconstructed historical walls are concerned, Mr. Keenan was of the view that inadequate regard had been had to the coursing of the new and newly constructed portions of the historic walls to integrate them with the historic structures. He was of the opinion that coursing should be introduced at 500 mm intervals. By contrast, Mr. O’Connell said that courses of that nature would introduce a subtle horizontal emphasis into the pattern of the wall, which was unnecessary as the shale used in constructing the new walls and the reconstructed portions of the historic walls already, of its very nature, achieved that purpose. Mr. O’Connell relied on Articles 11 and 12 of the International Charter for the Conservation and Restoration of Monuments and Sites, known as The Venice Charter (1964), which provides: "Art. 11 The valid contributions of all periods to the building of a monument must be respected, since unity of style is not the aim of a restoration. When a building includes the superimposed work of different periods, the revealing of the underlying state can only be justified in exceptional circumstances and when what is removed is of little interest and the material which is brought to light is of great historical, archaeological or aesthetic value, and its state of preservation is good enough to justify the action. Evaluation of the importance of the elements involved and the decision as to what may be destroyed cannot rest solely on the individual in charge of the work. Article 12: Replacements of missing parts must integrate harmoniously with the whole, but at the same time must be distinguishable from the original so that restoration does not falsify the artistic or historic evidence."

7.15 Mr. Keenan agreed in principle that there could be a visual distinction between the old and new walls but was of the view that the distinction was, in effect, excessive. In contrast, Mr.

O’Connell was of the view that repointing the entire structure with lime mortar would achieve the required harmony.

7.16 Article 15 of the Florence Charter (1981), on Historic Gardens, published by the International Council on Monuments and Sites (ICMOS), provides: "No restoration work and, above all, no reconstruction work on a historic garden shall be undertaken without thorough prior research to ensure that such work is scientifically executed, which will involve everything from excavation to the assembling of records relating to the garden in question and to similar gardens. Before any practical work starts, a project must be prepared based on said research and must be submitted to a group of experts for joint examination and approval."

7.17 Mr. Keenan criticised the failure to investigate how the historic walls would originally have been capped. However, he himself was not in a position to say how they had been capped. Therefore, while it is accepted that the haunching or capping of those walls was implemented in a defective manner, the defendant cannot demonstrate that the Third Parties ought to have directed any particular type of haunching or capping for these walls. It may well be that the style directed by Mr. Gilligan, albeit not implemented correctly, is still suitable. There is, in any event, no evidence to the contrary.

7.18 It needs to be noted also that no complaint was ever made by Ms. Barbouti during the works about the appearance of the walls or how the new portions related to the old, notwithstanding that she frequently walked the gardens with Mr. Gilligan. Insofar as this is a purely aesthetic issue, that is material.

7.19 Mr. Gilligan also pointed out that the historic walls themselves had been built at different times in a variety of styles. Some were random rubble walls, others had random rubble walls built up in various levels, so that lines or layers were running through them. No one style could be followed.

7.20 Part of Mr. O’Connell’s opinion on the appropriateness of the treatment of the new areas of wall was that the new wall was composed mainly of shale, and the old wall was significantly composed of shale. Due to the nature of the stone, the subtle horizontal accent achieved by the coursing recommended by Mr. Keenan was, in his view, sufficiently present without coursing. I understood Mr. Keenan to agree in cross-examination that it was legitimate, from a conservation point of view, to achieve a visible distinction between old and new. He further agreed that, insofar as differences are distinguishable between the repaired sections or newly reconstructed sections of the historical walls and the historical fabric, that is a legitimate design decision based on the relevant conservation principles.

7.21 A picture of Wall 8 was put to Mr. O’Connell in cross-examination as an example of where there was an inappropriately significant distinction between the old and new. Apart from the fact that it must be borne in mind that the greater part of this wall – from Mr. Gilligan’s revised drawing, perhaps 75% - is newly constructed, Mr. O’Connell confirmed that the planning inspector had inspected this and the planning authority had raised no issues as to the manner of reconstruction. The walls are within the curtilage of a protected structure, Derrybawn House, and no enforcement steps were taken, notwithstanding that a planning inspector inspected the walls in late 2015 or early 2016. Section 57 of the Planning and Development Act, 2000, provides: “The carrying out of works to a protected structure shall be exempted development only if those works would not materially affect the character of (a) the structure or (b) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest." One can take it, therefore, from the fact that the planning authority appeared to accept that the development was an exempted development, that it did not believe that there had been any breach of s. 57 in the manner in which the historical walls were reconstructed, or in the design of the new walls constructed in the same location.

7.22 I find, therefore, that this is a legitimate difference of opinion on a design issue and does not amount to negligence or a breach of contract.

5. Whether a conservation architect should have been retained

7.23 Mr. Keenan was of the view that a conservation architect should have been used for works on a protected structure. He referred to RIAI guidance on this, but it was not put in evidence. However, Mr. Gilligan was a conservation architect, Grade 3, which, though he accepted this was not the highest level of such an architect, was adequate for the works being carried out. As Mr. Gilligan pointed out, the gardens themselves are not explicitly mentioned in the development plan as protected, though they form part of the curtilage of the House, which is a protected structure. He referred to several well-known sites on which he had worked as a conservation architect. I accept that his qualifications were adequate, and he did not need to advise that a more highly qualified conservation architect should be appointed.

7.24 There is, in any event, no proof of loss under this heading. I have already dealt with the issue of the treatment of the new walls and newly constructed portions of the historic walls, and have concluded that how these are married together aesthetically is a matter of design choice on which architects may differ. Mr. Keenan differs from Mr. O’Connell’s view on the extent to which the construction of the new and newly constructed portions of the historic walls integrate with the appearance of the historic walls. There is no failure on the part of the Third Parties to reach the standard of a reasonable architect under this heading.

Conclusion

7.25 In conclusion, the aesthetic issues surrounding the reconstruction of part of the historic walls do not disclose a cause of action. How Mr. Gilligan sought to integrate the new into the old was within the range of legitimate design choices available to him. It is notable that Ms. Barbouti did not at any time object to the design choices made.

7.26 So far as liability for the defective bedding mortar in these reconstructed sections of historic wall are concerned, this is to be determined in the same way as the defects in the bedding mortar in the newly constructed walls. For the reasons already stated, I am satisfied that the Third Parties are not liable to Ms. Barbouti for those defects.

Section 8: Miscellaneous Issues

8.1 A variety of complaints were made in the course of the pleadings, the significance of which for the damages claimed was, with respect, entirely unclear. The issues dealt with in this section are, in my view, irrelevant to the case, and I deal with them solely to be comprehensive.

i. Failure to put a written contract in place

8.2 This was raised in the Consolidated Further and Better Particulars of Negligence and Breach of Contract dated 28 October 2022. For two fundamental reasons, there can be no claim against the Third Parties because no written contract was in place.

8.3 First, and most significantly, Ms. Barbouti did not want a written contract. I have already quoted from her evidence on this point. Ms. Barbouti presented as a very determined personality and, moreover, one who expected others with whom she had dealings to accommodate her preferences, at all times and often on short notice.

8.4 No written contract could be put in place in the manner suggested by Mr. Gilligan in his email from January, 2014, because Ms. Barbouti did not wish to specify the scope of works. I am satisfied that she intended from the outset to decide as she went along what works would be carried out and that she was well aware that the scope of works was likely to expand very considerably. As early as January 2014, Ms. Barbouti was requesting proposals from Mr. Gilligan for works to the Orchard, including the possible alteration of levels. That is evident from the notes of the site meeting that month. The alteration of the ground levels in the garden was, of necessity, significant work, and insofar as Ms. Barbouti suggested that she initially only considered planning, I think there must be considerable doubt as to whether her initial plans were limited in that way. In any event, even if she had no specific intention of undertaking works in the Orchard on the scale which subsequently took place, I am satisfied that she was open to that possibility and that she wished to retain both the Contractor and Mr. Gilligan on an open-ended basis, with the option for her to add such Works as she might see fit as she went along.

8.5 I am satisfied that she read Mr. Gilligan’s email to her advising her that a written contract in a particular form should be put in place, and she deliberately ignored that email because she was of the view that it was in her interests to retain both flexibility and control, not to sign a written contract. I am also satisfied that she made a conscious decision not to seek advice on the matter because she had made up her mind on that score and did not require advice.

8.6 Secondly, Ms. Barbouti’s evidence was that, if she were considering whether to sign a written contract, she would have consulted her solicitors and would not have relied on Mr. Gilligan’s advice.

8.7 For those two reasons, there is no breach of duty of care by Mr. Gilligan under this heading.

8.8 Thirdly, Ms. Barbouti has not shown any loss to her arising out of this alleged breach of duty of care to her, and therefore, no cause of action arises. Although it was suggested that perhaps the Standard RIAI Blue Form Contract could have been completed to provide for liquidated damages for delay, there was no evidence that the plaintiff would be likely to have agreed to that, or that this is the standard practice. And, on the facts of this case, I think it is highly improbable that the Contractor, faced with an uncertain scope of works with the consequence that it would be impossible to nominate a completion date, would have agreed to any such term. The manner in which Ms. Barbouti gave instructions in this case, which continued up to July, 2017 (so far as coloured lighting for the trees was concerned), in any event means that the Contractor would have been entitled to an extension of time under Clause

30 of the Standard RIAI Blue Form Contract.

8.9 For various reasons, therefore, no loss can be shown because of the absence of any such provision in the oral contract between Ms. Barbouti and the plaintiff. And, as no other loss to Ms. Barbouti was suggested, it follows that there is no sustainable claim for loss arising out of the failure to put in place a written contract, even if that was a breach of duty (which I am satisfied, on the specific facts of this case, it was not).

8.10 Not only, therefore, is there no negligence under this heading, but no loss could be shown in any event, and Ms. Barbouti therefore does not have a cause of action.

ii. Failure of Mr. Gilligan to advise of his fees

8.11 This claim, though maintained at para. 43 of Ms. Barbouti’s closing submissions, can only be met with disbelief.

8.12 Ms. Barbouti has never paid Mr. Gilligan for his supervision of any of the Works to the House, Warehouse, or Orchard, so no loss can be shown under this heading, and there is no cause of action.

8.13 It is true that Mr. Gilligan did not advise Ms. Barbouti of the basis on which he would charge, and only raised the issue of his fees in late 2016 when Ms. Barbouti had started to complain about the cost of the extensive works which she had instructed should be done.

8.14 He raised an invoice for €222,685.87 on 17 January 2018, which has not been paid. Shortly after he pressed for payment through his solicitors, Ms. Barbouti joined him as a Third Party to these proceedings.

8.15 In those circumstances, Ms. Barbouti has not shown that she has suffered a loss under this heading.

iii. Failure to advise Ms. Barbouti that she could not dismiss the Contractor

8.16 Similarly, the complaint that Mr. Gilligan is in breach of the RIAI Code of Conduct in failing to advise Ms. Barbouti of her contractual obligations under the Standard RIAI Blue Form Contract and, in particular, in failing to advise her that she might become liable to the Contractor for damages if she unilaterally and without notice excluded him from the site, does not, in my view, give rise to any sustainable cause of action against Mr. Gilligan. While one would, in any event, perhaps expect any reasonable person using common sense to know that they could not act as Ms. Barbouti did on 1 and 2 August 2017, there are several reasons why Mr. Gilligan could not have any liability to Ms. Barbouti on this ground.

8.17 First, when Ms. Barbouti took action in 2017, she conferred with her lawyers, not Mr. Gilligan. They were fully competent to advise her on her legal rights, which, I am satisfied, could never have extended under any contract, written or oral, express or implied, to act as she did. This is consistent with her evidence on the making of a contract with the plaintiff: she gave explicit evidence that she would not enter into a written contract without consulting her solicitors.

8.18 Secondly, it is for any party to a contract who decides to terminate that contract to consider the terms of the contract and to seek that advice before acting. Ms. Barbouti did not even seek advice from her lawyers. She made a conscious decision to proceed without advice. Indeed, she did not mention at the meeting on 1 August, 2017, that she intended to dismiss the Contractor and lock the site. Her own solicitors were blindsided by it.

8.19 Thirdly, I think any reasonable person would know, without the necessity of taking any advice on the matter from either a lawyer or an architect, that they probably could not unilaterally terminate a relationship which had lasted several years. They would certainly be aware that they could not withhold the counterparty’s plant and equipment.

8.20 Fourthly, I am satisfied as a fact that, had Ms. Barbouti been told by Mr. Gilligan that the Standard RIAI Blue Form contract was incorporated into the dealings between the parties and that it did not entitle her to terminate the contract unilaterally as she proposed, she would nevertheless have acted in the same way.

8.21 Fifthly, there is no evidence that Ms. Barbouti became liable to the Contractor for damages, as she has not disclosed the basis for settling with the Contractor. Therefore, she has failed to show any loss arising out of the alleged failure of Mr. Gilligan to point out to her that her unreasonable behaviour would be contrary to the terms of the Standard RIAI Blue Form contract.

8.22 It must be said that Mr. Gilligan’s evidence that he never advised Ms. Barbouti that she could not act as she did because “he never thought it would arise” is entirely reasonable. No reasonable architect could have anticipated that their client would act in such an unreasonable way.

8.23 I am satisfied that this argument is without merit.

iv. Failure to appoint a Quantity Surveyor

8.24 Given the claim for Mr. Wearen’s fees, to which I will return, this is an unusual complaint. The clear – and indeed undisputed – evidence is that Mr. Gilligan specifically suggested – I don’t think it is appropriate to say that he advised her because, by this time, Ms. Barbouti had sought the advice of her solicitors and, given the nature of her instructions, they had wisely thought it appropriate to have a litigation solicitor present at the meeting – that a quantity surveyor should be appointed. Ms. Barbouti dismissed that out of hand. It is also clear that her lawyer, Mr. Gartlan, favoured such an approach but saw little point in advising Ms. Barbouti as she was so clearly set against it.

8.25 Not only that, but Mr. Gilligan, who was still Ms. Barbouti’s architect at this time, retained Messrs. Scollard Doyle to assist him in analysing the Contractor’s claim for payment in November 2017 Final Account Rev B. Ms. Barbouti’s response was to dismiss Mr. Gilligan as Architect.

8.26 Insofar as the complaint is that a quantity surveyor should have been retained at an earlier time, to ensure “cost control” on the project, I think it possibly would have been preferable that this had been done. Mr. Gilligan was quite vague about any advice given by him, prior to late 2016, to retain a quantity surveyor. However, in late 2016, when Ms. Barbouti was seeking final figures from the Contractor, he said that he intended to retain one to prepare the Final Account. On the evidence, I think this is probably the first time that he suggested that a quantity surveyor should be retained.

8.27 However, there is no loss arising from that. Mr. Gilligan’s certificates were all interim, and therefore not conclusive, and were subject to adjustment during the period of final measurement. Ms. Barbouti settled the Contractor’s claim against her for monies outstanding by paying only the sums due to subcontractors. She paid nothing to the Contractor. She has not shown any loss, and I am satisfied that none could be shown, given that she refused to cooperate with a perfectly reasonable suggestion made in August, 2017, that she appoint a quantity surveyor to go through the figures.

8.28 The evidence is that, when challenged to prove the final figures in the litigation, the Contractor waived substantial sums. One of those sums was a very significant figure, approximately €200,000, relating to excavation in the garden, which Mr. Gilligan had previously refused to certify. I am satisfied, based on an assessment of Mr. Kiernan’s evidence on the point, that this sum was inserted for negotiation purposes. However, there is nothing untoward about that: Mr. O’Connell and indeed Mr. Wearen both gave evidence that a Contractor will seek higher figures as part of the preparation of a Final Account and that the Employer’s representatives, which at that stage should include a quantity surveyor, then engages in a negotiation as to the amounts payable.

8.29 Mr. Kiernan also abandoned a claim to a similar figure related to the sum charged for the Forest Road. Mr. Kiernan says that he agreed to construct the road for €500,000 but subsequently reduced his claim to approximately €300,000. Mr. Wearen said the “fair value” payable in respect of the road was approximately €200,000 which Mr. Kiernan said was computed on the basis of the lowest possible rates charged by specialist civil engineers operating in an accessible site (as opposed to the remote area where this Road was built). Mr. Kiernan also said that Mr. Wearen’s figures were based on incorrect calculations about the ground level prior to construction of the road and therefore about the correct measure of the necessary excavations. In other words, there was a significant dispute between the Contractor and Ms. Barbouti about the correct charge for that road.

8.30 However, it is entirely clear from the evidence and I find as a fact that Mr. Gilligan took no part in the discussions between Mr. Kiernan and Ms. Barbouti as to the design or cost of the Forest Road. It was nothing to do with him. It was, in fact, a clear instance – of which there seem to have been many in the course of the Works – of matters being agreed directly with Mr. Kiernan or with a subcontractor, or which in reality had nothing to do with the Works (such as the delivery of oil for the caretaker’s residence and fittings for the House) and in respect of which Mr. Gilligan owed Ms. Barbouti no duty of care. Mr. Gilligan explicitly said to Mr. Kiernan and Ms. Barbouti when the Forest Road was first discussed that he was having nothing to do with it.

8.31 The high point of the dealings with the Forest Road was that it was funnelled through Mr. Gilligan’s certificates for payment. However, as Ms. Barbouti agreed to pay that sum, Mr. Gilligan cannot be liable to her for not certifying it at a lower figure.

8.32 In any case, as with all of the other alleged overcharging, as Mr. Gilligan never issued anything other than an interim certificate which was subject to adjustment at Final Account stage (which never concluded as Mr. Gilligan was dismissed so as to prevent him reviewing the costs and issuing a Final Certificate). There is therefore no loss to Ms. Barbouti. Ms. Barbouti and the Contractor ultimately resolved the claim for the final monies due and owing through litigation to which Mr. Gilligan was not a party. That claim was settled and I do not have to decide it.

8.33 Any claim based on the failure to advise on the appointment of a quantity surveyor to deal with the interim valuations must, therefore, fail as no loss has been shown. These matters were resolved between Ms. Barbouti and the Contractor as part of the Settlement. Ms. Barbouti has no cause of action against the Third Parties under this heading. All interim certificates were subject to adjustment at the stage of issuing the Final Certificate. The plaintiff, notwithstanding Ms. Barbouti’s actions, remained solvent and was therefore available to repay any monies that might have been overpaid. Ms. Barbouti settled her counterclaim against the plaintiff on the basis that she would pay no further monies and he would reimburse no monies. However, she agreed that she owed considerable sums to subcontractors.

8.34 Ms. Barbouti has no cause of action against Mr. Gilligan under this heading.

Section 9: Claim for Mr. Wearen’s fees

Introduction

9.1 As indicated at the outset of the judgment, Ms. Barbouti claims for quantity surveying fees incurred in retaining Mr. Wearen to review the documentation supplied by the Contractor to support the November 2017 Final Account Rev B. The amount claimed is €72,588.26, excluding VAT.

9.2 Mr. Wearen distinguished this from his fee for giving expert evidence in the proceedings, which he put at €100,000. This Court has no role in adjudicating on that fee, which would be a matter for adjudication by the legal costs adjudicator if Ms. Barbouti were awarded her costs or a portion of her costs to include Mr. Wearen’s fee for giving evidence.

9.3 By way of overview of the work done by Mr. Wearen, he compiled two reports. In the Vouching Documentation Report, dated 16 February, 2018, he reviewed the final account presented by the plaintiff in November, 2017, as against the vouching documents in the two folders supplied, and found it to be inadequate.

9.4 He also did a Claimed Value Report, issued 1 October, 2018, where he analysed the amounts claimed and whether, by reference to the value of the works, they constituted a fair value for the works. This involved measurement, particularly in relation to the Orchard earthworks and the Forest Road.

9.5 Elements amounting to €2,777,921 of the Final Account amount of €6,440,786 were analysed and he concluded that the work done had been over valued by €1,109,512 excluding VAT. Taking into account a reduction in the amount claimed by a subcontractor, Chubb, and the relevant preliminaries, that excess amount rose to €1,196,385.

9.6 There was significant complaint from Ms. Barbouti about the fact that the Contractor only dropped some of the claims in the November 2017 Final Account Rev B, shortly before the first listing of the trial for hearing in 2022.

9.7 Despite repeated reference to this, this has nothing to do with Mr. Gilligan, and is relevant only to the plaintiff’s claim for payment which was resolved as part of the Settlement. In fact, Mr. Gilligan attempted to retain quantity surveyors to challenge the sums claimed and to get them reduced, but Ms. Barbouti completely frustrated his efforts to do so. Any attempt to rely on the downward negotiation of the Contractor’s claim against Ms. Barbouti is entirely irrelevant to any cause of action against the Third Parties. Indeed, this would be so even if Ms. Barbouti had not prevented Mr. Gilligan from attempting to review the claim and potentially to reduce the amount sought by the Contractor, as occurred in this case.

Decision

9.8 This is an unusual claim. As seen earlier in this section, there was complaint on behalf of Ms. Barbouti that no quantity surveyor was retained throughout the Works to measure costs as works were in progress and to review claims and valuations as they were submitted by the Contractor.

9.9 It was also acknowledged that the appropriate way to approach the period of final measurement was to appoint a quantity surveyor to review the Final Account and supporting documentation so as to, in effect, assist the architect in reviewing the Final Account and issuing the Final Certificate which, unlike the interim certificates issued by Mr. Gilligan, would be final in nature and bind the client. Had that not been acknowledged, I would certainly have made a finding to the same effect.

9.10 Unfortunately, Ms. Barbouti, as already noted, expressly refused at the meeting on 1 August, 2017 and for a period thereafter to appoint a quantity Ssurveyor to review the amount claimed by the Contractor. When Mr. Gilligan retained Messrs. Scollard Doyle to assist him, he was dismissed as architect.

9.11 The essential basis on which Mr. Wearen’s fees are now claimed as against Mr. Gilligan is that it said that, had Mr. Gilligan adequately interrogated the interim valuations submitted by the Contractor, his fees would not have been incurred.

9.12 There are a number of reasons why this claim must fail.

9.13 The principal one, and one which in my view is sufficient to reject this claim, is that Ms. Barbouti would have had to retain a quantity surveyor at final account stage in any event. She would therefore have become liable for the quantity surveying fees incurred in so doing. Mr. Wearen said in his evidence that the fees in issue here were distinct from the fees involved in providing an expert report for use in court proceedings as it comprised tasks which “were more quantity surveying in nature and which ought to have been addressed within the final account, or the final account ought to have negated the need to do that work, if you like.” (Day 15, Q.82). In other words, the quantity surveyor retained to negotiate with the Contractor for the purpose of settling the final account would have to do this work.

9.14 As that is a fee which Ms. Barbouti would always have had to incur, she can have no claim against Mr. Gilligan for it. (In fact, as already discussed in the previous section, she complained that he did not recommend that she retain a quantity surveyor throughout the Works. If he had, she would have had to pay those additional fees also.)

9.15 Secondly, as Mr. Gilligan said in his evidence, much of the information which would have justified the sums claimed was, in the circumstances of the case, non-documentary and would have been within his knowledge and that of others who had been involved in the project.

For example, Mr. Wearen originally, in his Claimed Value Report, queried the amount claimed by the Contractor relating to painting and decorating. Once it had been made clear to him that some of this work had been redone at Ms. Barbouti’s request, he adjusted his figures.

9.16 Mr. Gilligan gave evidence, which I accept, that the process of settling a final account involves a lot of information that is either not written down anywhere and results from discussions on site, or is located in isolated emails which can be retrieved if necessary. The architect is important to this process because he in a position to give information to the quantity surveyor as to any special circumstances which explain the amounts claimed. In addition, due to the architect’s direct experience of the project, he or she will be in a position to find the information in isolated emails that can be difficult to find by those not directly involved at the time the emails were exchanged. The exercise conducted by Mr. Wearen in the context of litigation, and without access to this information, does not mirror exactly the process which would occur had Mr. Gilligan been permitted to appoint a quantity surveyor on Ms. Barbouti’s behalf, and, insofar as it does not mirror it, is less satisfactory as being less likely to assess the correct figures by reference to the agreement between the parties and the specific instructions given by the client in the course of the works.

9.17 Thirdly, this claim is based on the inadequacy of the documentation supplied in the two lever arch folders submitted by the Contractor to substantiate the sums claimed in the November 2017 Final Account Rev B. However, the Contractor submitted significant additional information to Messrs. Scollard Doyle in the autumn of 2017 to support those figures.

9.18 As I understand the evidence, Messrs. Scollard Doyle never proceeded to settle the account because Ms. Barbouti dismissed Mr. Gilligan as architect and refused to engage them herself. Nevertheless, the Contractor did submit additional supporting documentation in an effort to settle the Final Account in the usual way, and therefore settle the dispute as to the monies outstanding and avoid litigation.

9.19 Ms. Barbouti was, ultimately, forced to retain Mr. Wearen to deal with the Contractor’s claim. However, having refused to engage in the usual process employed by construction professionals, Mr. Wearen acted against a background of threatened legal proceedings and had to obtain the additional information through the discovery process. This was a more expensive process, and that additional expense was incurred by Ms. Barbouti’s refusal to engage in the usual procedures for settling a Final Account, that is, by permitting Mr. Gilligan to continue to discharge his functions as architect and by accepting the appointment of Messrs. Scollard Doyle to act as her quantity surveyors in that process.

9.20 In other words, because Ms. Barbouti chose to ignore the normal contractual procedures in the late summer and autumn of 2017, and only retained Mr. Wearen when it became clear that the Contractor would sue her, she made the process of reconciling the figures more difficult and time-consuming than it would otherwise have been. I am perfectly satisfied that the Contractor was relieved and happy to hear from Mr. Gilligan that Messrs. Scollard Doyle had been retained to address the Final Account and it was only when Ms. Barbouti refused to allow that process to be followed that the Contractor felt obliged to sue. From the dismissal of Mr. Gilligan in December, 2017, it was clear that the matter would have to be addressed through litigation.

9.21 Insofar, therefore, as Mr. Wearen’s fees were higher than the normal quantity surveying fees which Ms. Barbouti would have had to pay in any event, they were incurred due to Ms. Barbouti’s own actions and Mr. Gilligan is not liable for them.

9.22 Fourthly, the invoices produced to substantiate this claim demonstrated that at least some of this fee was in fact incurred as part of Mr. Wearen’s work as expert witness (and therefore properly categorised with his fee to act as such).

9.23 Invoice No. 1 dated 9 March, 2018, related to the drafting of the Vouching Documentation Report, which seems not in fact to have been finalised until 8 March, 2018 (notwithstanding that it continued to bear the date 16 February, 2018, which was the date, apparently, of a circulated draft).

9.24 Invoice No. 2 of 10 July, 2018, covered Mr. Wearen’s fees from 8 March, 2018 to 6 July, 2018. While he ascribed the entirety of this invoice to his work as independent quantity surveying services as opposed to his work as an expert witness, it is readily apparent that at least some of the items were attributable to his work as expert witness, as they refer to correspondence and calls with the relevant litigation partner in Gartlan Furey, meeting with counsel, and the review of Mr. Keenan’s first report as expert witness in the litigation and of the plaintiff’s quantity surveyor’s response to his Vouching Documentation Report. It also included a seven hour meeting with the plaintiff’s expert quantity surveyorat Derrybawn House.

9.25 It seems reasonably clear, therefore, that this invoice (in the sum of €3,145 excluding VAT) does not relate 100% to work outside of work as an expert witness in the case, as claimed by Mr. Wearen. Of course, arguably some of that work would have been done by Mr. Wearen anyway, had he been the quantity surveyor appointed by Ms. Barbouti under the contract with the plaintiff – for example, I doubt it would be unusual given the large scope of works for a meeting between the contractor’s and the employer’s respective quantity surveyors to take seven hours (including travel to the site), so in my view this sum is not recoverable under any heading, but in the context of this case, the fees must be attributable to Mr. Wearen’s work as an expert witness in the case. These are a matter for an order for costs, and ultimately, if necessary, for adjudication. They are not recoverable as damages under this heading.

9.26 Invoice No. 3 was referable to measurements carried out by Mr. Wearen and one of his colleagues. It included matters such as measuring quantities for the sums charged for painting and decorating, and also a survey of the Forest Road. In relation to the latter, Invoice No. 3 included fees of €950 plus VAT payable to Coastview Surveys who carried out a topographical survey to establish a baseline for the volume check on the forest road. Mr. Wearen’s fees relating to this issue, including one site visit, came to €6,545 plus €50 mileage, while a Senior Claims Consultant in the firm for which he was then working, Staveley and Partners, claimed for €13,380 plus €200 for mileage in respect of four site visits. This made a total of €21,125 excluding VAT. All but one of the items on this invoice, one hour’s work charged out by Mr. Wearen at €170, were carried out after the plenary summons was issued on 26 July, 2018. The total is €13,380, excluding VAT, a very considerable portion of the overall €72,000 claimed.

9.27 As set out above, Mr. Wearen in his evidence acknowledged that the process up to and including the issuing of the Claimed Value Report could be viewed as working towards resolution of the dispute without the necessity for litigation. Leaving aside for the moment the fact that much of that work, if not in any event regarded as work falling within the scope of the work of a quantity surveyor appointed under the contract could in any event be regarded as work done in contemplation of litigation, Mr. Wearen’s view on this point suggests that invoices issuing after that time related only to the litigation and should be regarded as his work as expert witness. Nevertheless, Mr. Wearen has applied a 25% apportionment of the invoices from that time towards quantity surveying work generally, rather than his work as an expert witness.

9.28 That is somewhat difficult to square with his view that the nature of the work changed once the Claimed Value Report was finalised, but, in any event, a detailed look at the invoices raised from that time does not support a 25% apportionment.

9.29 For example Invoice No. 4, dated 5 December, 2018, in the sum of €5,635 and relating to work in October and November, 2018, was claimed by Mr. Wearen to relate in full to quantity surveying work and not to his work as expert witness. However, most of the items in this invoice, at least insofar as it relates to Mr. Wearen’s work, relate to a review of the Statement of Claim and a lengthy meeting with the plaintiff’s experts. It is difficult to see how many of the items claimed could relate to anything other than preparation for the proceedings. Indeed, there is specific reference to review of the Statement of Claim delivered by the plaintiff before finalising the Claimed Value Report.

9.30 As regards Mr. Wearen’s colleague, the itemisation of his work relates less specifically to the proceedings but consists of work in collating and presenting the information in a more accessible way, and in particular refers to making the information “report ready”. That also suggests that the work was directed at the presentation of the expert report for use in the litigation rather than as work which would replicate the work of a quantity surveyor preparing a final account.

9.31 Invoice No. 5, dated 6 February, 2019, was for the relatively insignificant sum of €290 connected with the amendment and reissue of the Claimed Value report and stands or falls with the treatment of Invoice No. 4 as it is a follow on from the work claimed in that invoice.

9.32 Invoice No. 6 dated 25 May, 2020, in the sum of €1,700, is said to relate 25% to quantity surveying matters. However, it is headed with the title to the proceedings and, more importantly, quite manifestly relates to a review of the pleadings including the notices for and replies to particulars. Mr. Wearen accepted under cross examination that only one half hour’s work, charged out in the sum of €85, could in reality be said to relate to work other than his work as an expert witness and it therefore appears that only 5% of this invoice could possibly relate to independent quantity surveying work, with the remaining €1,615 being, in reality, a claim for the fees of an expert witness.

Conclusion

9.33 This claim is misconceived. Mr. Wearen in his expert report points to significant difficulties in attempting to reconcile the information so as to substantiate the figures claimed, the difficulty in identifying the basis for the rates claimed, and so on. Even accepting that criticism, the fundamental point is that it was a matter as between Ms. Barbouti and the Contractor as to whether the Final Account figures – and therefore the figures claimed in the plenary summons – could be substantiated. Mr. Gilligan never issued any certificate which would have required Ms. Barbouti to pay the sums claimed. She was also entitled to challenge those figures and, indeed, under the terms of the Standard RIAI Blue Form Contract, which both Mr. Gilligan and the Contractor at all times accepted applied to the settlement of the Final Account, if the Contractor could not substantiate his figures, the Architect would not certify for payment insofar as they remained unsubstantiated and she was fully protected.

9.34 To settle the final account, Ms. Barbouti was always going to have to retain a quantity surveyor. She was therefore always going to be liable to pay quantity surveying fees and, insofar as Mr. Wearen’s fees were higher, that was the result of Ms. Barbouti’s own action in refusing to cooperate with the process of settling the final account or even in permitting Mr. Gilligan to retain quantity surveyors to assist him. In addition, there is a real question as to whether the sums claimed under this heading are not, in reality, relating to work done as expert witness and therefore a matter for an award of costs and subsequent adjudication of same.

9.35 For these reasons, this claim must fail.

Section 10: The Civil Liability Act, 1961: the effect of the Settlement, the assessment of the proportionate liability (if any) of the Third Parties, contributory negligence and failure to mitigate loss

Introduction

10.1 As already made clear, the only issues on which I have found that the Third Parties were liable were those issues in respect of which liability was conceded: the foundations of the Warehouse, and the haunching of the historic walls. However, even with the benefit of those concessions, a number of issues remain to be determined by reference to the Civil Liability Act, 1961.

10.2 Firstly, two issues arise as to the application and effect of s. 17 of the 1961 Act in light of the Settlement concluded between the plaintiff Contractor and Ms. Barbouti on Day 4 of the trial. In addition, the Third Parties say that, in accordance with s. 34 of the 1961 Act, Ms. Barbouti is wholly responsible herself for the damage she has suffered.

10.3 As Ms. Barbouti agrees that her claim may potentially be reduced by reference to s. 17

(2) of the 1961 Act, in accordance with the degree to which the Third Parties – as opposed to the Contractor – may be said to be to blame for the defects that exist in the walls, it is convenient to deal first with the issues arising under s. 17 of the Act.

The Settlement with the plaintiff and s. 17 of the Civil Liability Act, 1961

10.4 Section 17 of the 1961 Act provides, in material part:

(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.

(2) If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff's total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.

10.5 It is agreed that s. 17 (1) has no application in this case and the arguments under s. 17 relate to subsection (2), which provides for the reduction of a claim against a concurrent wrongdoer where there has been a “release or accord” with another wrongdoer. In this case, it is not disputed that the Settlement constitutes such a “release or accord”, that the plaintiff contractor and the Third Parties are concurrent wrongdoers within the meaning of s.17, or that the claim for compensation for defects in the Works is “damage” within the meaning of the Act.

10.6 By reason of s. 35 (1) (h), Ms. Barbouti is identified with the Contractor in her claim against the Third Parties, and, furthermore, by virtue of s. 17 (2), her claim against the Third Parties is reduced by the greatest of the following three figures: i. the amount of the consideration paid for the release or accord; or ii. in any amount by which the release or accord provides that the total claim shall be reduced; or iii. to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff's total claim had been paid by the other wrongdoers.

10.7 As a result, the Third Parties contend that either (i.) or (iii.) applies and they further contend that they apply so as to reduce to nil any liability that the Third Parties may have.

10.8 It is not disputed that were liability to be apportioned as between the plaintiff and the Third Parties for the damage suffered by Ms. Barbouti, the Third Parties would be found to be liable, pursuant to the principles in Iarnród Éireann, to at least some degree. In other words, reliance on the third possibility in s. 17 (2) would not reduce the liability of the Third Parties to nil.

10.9 Ms. Barbouti is the plaintiff for the purposes of s. 17 (2), and, consistent with the conventions which have arisen when s. 17 is considered, the Contractor, who is the settling wrongdoer, may be referred to as D1, while the Third Parties may be referred to as D2.

10.10 Section 35(1)(h) of the Act states: “Where the plaintiff’s damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged”.

10.11 It is agreed that the combined effect of ss. 17 (2) and 35 (1) (h) is that Ms. Barbouti is now to be identified with the plaintiff as concurrent wrongdoer, and that the respective liabilities of the plaintiff and the Third Parties for the damage suffered by Ms. Barbouti in the form of the defects in the Works need to be determined. It is, therefore, in effect, conceded by Ms. Barbouti that the Third Parties may not be held to be 100% liable for the damage she has suffered. However, she strongly contends that the nature of the breach of duty by the Third Parties, on the facts of this case, is that the Third Parties should bear the lion’s share of the responsibility for the defects.

10.12 By contrast, the Third Parties say that the plaintiff was primarily liable for the defects and that the Third Parties, if liable at all, should be regarded very much as the secondary wrongdoer with the plaintiff bearing the majority of the blame for the defects which have been discovered in the garden walls and in the cladding of the Warehouse. They do not dispute that the Third Parties are wholly responsible for the design failure in the foundations to the Warehouse, which, it is now agreed, can be remedied by underpinning.

10.13 However, the Third Parties by way of additional argument, say that Ms. Barbouti has already received the full value of her claim by reason of her Settlement with the plaintiff, and her claim against the Third Parties is now reduced in full and the Third Parties’ liability is nil.

10.14 Logically, therefore, the first of the issues under s. 17 (2) which falls for determination is whether Ms. Barbouti has already received from the plaintiff, as “consideration” for releasing him from her counterclaim for the loss suffered by her by reason of the defects in the Works, the full value of her claim in respect of those defects. If she has, then, as the Third Parties submit, she cannot recover against them even for the defects in the foundations to the Warehouse and the haunching of the historic walls, as her claim against them would be reduced to nil.

i. Whether the Settlement has extinguished Ms. Barbouti’s claim against the Third Parties

10.15 This issue turns on the question of whether Ms. Barbouti has received, by way of “consideration” for the entering into the Settlement with the Plaintiff, the full value of her claim in relation to the defects in the Works, such that her claim against the Third Parties is reduced to nil and is, essentially, extinguished by the Settlement.

10.16 This requires interpretation of the relevant part of s. 17 (2) and, in particular, the meaning of the word “consideration”, as a well as a question of fact as to the value received by Ms. Barbouti under the Settlement, which in turn depends on: i. the nature of the case made by Ms. Barbouti against the plaintiff in her Counterclaim and against the Third Parties in her Third Party Statement of Claim, ii. the terms of Settlement, and iii. on the facts of this case, the nature of the claim made by the plaintiff against Ms. Barbouti in its Statement of Claim as the Settlement also disposes of that claim.

10.17 The Terms of Settlement signed by Ms. Barbouti and the plaintiff on Day 4 were as follows: “In full and final settlement and release of all claims by the Plaintiff against the Defendant and all claims by the Defendant against the Plaintiff concerning or arising from Derrybawn House, Laragh, County Wicklow (“the Property”) it is agreed as follows:

1. The Plaintiff’s claim against the Defendant in the above-entitled proceedings shall be struck out with no order as to costs.

2. The Defendant’s counterclaim against the Plaintiff in the above-entitled proceedings shall be struck out with no order as to costs.

3. The Defendant hereby assumes full responsibility for the payment of all outstanding sums together with VAT thereon (“the Sums”) due to the contractors listed in the Schedule hereto in respect of works done at and / or goods ordered and / or supplied for the Property ….

4. The Defendant agrees that she shall fully and completely indemnify the Plaintiff in respect of any demand or claim made or proceeding brought or threatened (including the costs thereof) by the Third Parties or either of them against the Plaintiff in respect of the Property and the works carried out there or otherwise pertaining to the above entitled proceedings or any claims made therein.

5. Without prejudice to anything set out above it is hereby agreed and declared by the Plaintiff and the Defendant that each irrevocably releases the other and their respective servants and agents from any liability or claim pertaining to the Property and any works done at and / or goods ordered and / or supplied for the Property whatsoever, whether subsisting now or otherwise arising in the future.

6. Further and without prejudice to anything set out above, insofar as the Plaintiff and the Third Parties may be deemed to be concurrent wrongdoers in respect of any of the damage alleged to have been suffered by the Defendant / Counterclaim Plaintiff this agreement does not release the Third Parties from their liability in their capacity as concurrent wrongdoers.”

10.18 Clause 7 relates to the provision by the plaintiff of documents for the purposes of a safety file and is not material. The Schedule provided that the plaintiff was to pay €11,707.50 plus VAT to Irritec Ltd., €52,069 plus VAT to Connor Electric, €103,260 plus VAT to Bushy Park Ironworks, and €19, 000 plus VAT to John Connolly, a total sum of €186,036.50 plus VAT

– which I understand was chargeable at the rate of 13.5%, and would therefore result in a total inclusive of VAT of €211,151.43.

10.19 The plaintiff’s claim against Ms. Barbouti for loss arising for the lockout from the Site on 1 August, 2017, was abandoned pursuant to the Settlement. The claim for those items, which included additional hire costs of plant and equipment arising from lack of access to the site (€35,000), non-productive staff and redeployment costs (€120,000), loss of profit (€320,000), interest on outstanding payments (€130,000) and costs of the general impact on the business (€350,000) were obviously unascertained and there must have been some risk that at least some of them would not have been recovered, but it remains the case that the plaintiff had a bona fide claim for costs and expenses occasioned to it by reason of the lockout on 2 August, 2017, when – just to take a simple example – it was prevented from accessing plant and tools, some of which it was hiring from third parties. It also had a claim for legal costs associated with proceedings issued against it by subcontractors.

10.20 I think there is little doubt that, if the Settlement had been to the effect that Ms. Barbouti had simply released the plaintiff from her claim without any money changing hands and proceeded against the Third Parties as the remaining defendants, then it would be clear that the first option in s. 17 (2) was irrelevant. However, the matter is complicated here by the nature of the Settlement which was that Ms. Barbouti released the plaintiff from her counterclaim in consideration of the plaintiff releasing her from its claim for monies due and owing on foot of the building contract. The Third Parties argue that the Settlement is correctly interpreted as the Contractor waiving its claim for monies due and owing in exchange for Ms. Barbouti dropping her claim for compensation for the defects in the building work, with the result that the “consideration” paid to Ms. Barbouti for the Settlement was the amount of the Contractor’s claim against her. They say that this sum exceeded the sum claimed by Ms. Barbouti and therefore she has already received the full value of her claim.

10.21 As already stated in the Introduction to this judgment, the plaintiff instituted proceedings claiming €1,444,953 (ex VAT) by way of monies outstanding. However, prior to the first trial date, the plaintiff (through its quantity surveyor) reduced its claim to €547,953 (excluding VAT). Even taking into account the sums now payable to Bushy Park Ironworks, which were not included in that claim, this is considerably less than the sum of €1,215,120 (ex VAT) claimed by Ms. Barbouti in respect of remedial works, a figure which would in any event have to be adjusted upward to include VAT and to account for inflation. It is even less than the figure which the Third Parties say is the proper figure for compensation for all remedial works (including not only the walls, but the Warehouse), that is, €754,687 (also ex VAT and subject to adjustment for inflation).

10.22 Even if, therefore, I could ascribe a value to the Settlement so as to identify the “consideration” paid to Ms. Barbouti by the plaintiff in respect of the damage occasioned to her by reason of the construction of defective walls, insofar as the Settlement could be interpreted as an agreement by the plaintiff to write off the full amount which the plaintiff says were due and owing to both the plaintiff and the various subcontractors in respect of the Works against the compensation to be paid by the plaintiff to Ms. Barbouti for the damage occasioned to her by the defective workmanship, that “consideration” would seem to amount to no more than €547,953 (ex VAT) plus €103,260 (ex VAT) due to Bushy Park Ironworks which was not included in the Final Account Rev B originally used as a basis for the plaintiff’s claim. The total of €651,213 (ex VAT) is roughly equivalent to the sum which the Third Parties’ experts concede would be payable for the remedial works on the assumption that the court accepted that the bespoke repointing solution proposed by them would constitute adequate remedial works, but far less than the sum of €1,215,120 (excluding VAT) which is claimed by Ms. Barbouti.

10.23 In addition, there are of course a variety of figures that might have been found to have been payable by Ms. Barbouti if the plaintiff’s claim for monies due and owing had gone to trial. But these are all issues on which it is no longer necessary to make any finding.

10.24 Furthermore, the analysis of the greatest and smallest figures payable by reference to the position of the plaintiff and defendant prior to conclusion of the Settlement does not take into account the “consideration” that might be said to have already been paid by Ms. Barbouti in the form of the plaintiff agreeing to abandon its claim for consequential losses arising out of unlawful action of Ms. Barbouti in excluding the contractor from the site on 1 August, 2017. It is, of course, entirely uncertain what the true value of that claim might have been.

10.25 However, it is impossible for the court, in the absence of any agreement between the parties to that dispute as to what the appropriate compensation would have been, to say what that “consideration” was, as those issues were not, ultimately, litigated and are not before me for determination. And, in the absence of such agreement, the only way of assessing that compensation is by way of adjudication on the evidence in the main action which was comprised in the Settlement. It is not possible now to put a figure on that sum.

10.26 It will, I think, be manifest from that overview of the issues as to the respective sums claimed by the plaintiff and Ms. Barbouti that the value to be ascribed to the writing off of the plaintiff’s claim is best regarded as – to use that inimitable phrase – a “known unknown”. It is not possible to ascribe a value to it in monetary terms.

10.27 This has of course knock on effects for the attempted application of the first of the three possibilities in section 17 (2). It seems difficult, if not outright impossible, to apply the first option in s. 17 (2) where no agreed consideration in monetary terms is identified in the Settlement.

10.28 I am of the view that the word “consideration” refers to an identifiable, quantified sum in monetary terms and I have come to this view for a number of reasons.

10.29 First, applying the ejusdem generis principle to the interpretation of s. 17 (2), it appears that all three options in the sub-section relate to precise amounts which have crystallised into liquidated sums by reason of explicit agreement or adjudication. By contrast, as Ms. Barbouti’s claim against the Third Parties demonstrates, the sum payable by way of compensation for the damage suffered by Ms. Barbouti is not known until it is either agreed between the parties and adjudicated upon by a court.

10.30 Secondly, this interpretation is supported by the commentary of Professor Glanville Williams’ on section 7 of his proposed model law, on which s. 17 (2) is based: see Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions” (London: Stevens & Sons Limited, 1951), at §43, pp. 151-155. Professor Williams’ analysis of the proposed provision is predicated on various examples which serve to demonstrate both the justice of the reduction now imposed as a matter of law by s. 17 (2) of the 1961 Act, and how it would work in practice. However, in none of the examples is an unliquidated amount discussed.

10.31 As Professor Williams explains in §43 of his book, if it turns out that D1 has paid more than a court ultimately determines would have been his share of the liability to P, then P’s claim against D1 is correspondingly reduced, so that there is no overpayment to P. On the other hand, if P has accepted too little from D1, then P suffers that loss because the greater amount will be the amount for which D1 is proportionately liable under the third option in s. 17 (2) and therefore the amount by which D2’s liability is reduced.

10.32 However, this will be as a result of a decision made by P not to pursue the claim against D1 and can be justified by the utility of encouraging D1 to settle by ensuring that the settlement will be final and cannot be reopened. As explained by Professor Williams (at p. 504) in his footnote to section 7 of the proposed law, which is in identical terms to s. 17 (2) of the 1961 Act, the subsection is based upon two principles;

i. the principle that partial satisfaction by one concurrent wrongdoer operates in favour of all, and ii. the desirability of facilitating settlements out of court. These objectives are advanced by an interpretation of s. 17 (2) which requires “consideration” to be expressed as a precise monetary amount, as the liability of the non-settling wrongdoer will still be reduced by the degree of fault of the settling wrongdoer, in accordance with s. 35

(1) (h). There is still, therefore, an incentive for the other wrongdoer to settle and it remains the case that the non-settling wrongdoer will still have the benefit of partial satisfaction to the extent to which the other wrongdoer was at fault.

10.33 As I have said, the Third Parties argue that, as the logic of Ms. Barbouti’s claim in relation to the defects in the Works is that she would have recovered against the plaintiff, the waiver of her claim must be taken as an implicit acknowledgement of liability for monies due to the Contractor.

10.34 Of course, this argument on the part of the Third Parties is no doubt motivated by a concern that Ms. Barbouti may have been liable for the entire amount originally claimed by the plaintiff and have obtained a release from her liability for that sum. If so, then, given the sum claimed by Ms. Barbouti as compensation for the defects in the walls, the Settlement could be interpreted as a full satisfaction for her claim to be compensation for defects in the Works.

10.35 Professor Williams, in his footnote to his proposed s. 7, opined that it “prevents collusion between the injured party and the one wrongdoer whereby the injured party enables himself to obtain in the aggregate more than the amount of the damages to which is his justly entitled”. While I think collusion between the plaintiff and Ms. Barbouti is highly unlikely in this instance, there is at least the possibility that Ms. Barbouti would have obtained for herself, by reason of abandoning her claim against the plaintiff while continuing to pursue the Third Parties, a value greater than the sum total of the compensation claimed by her. However, as the plaintiff reduced its claim significantly prior to trial, that concern does not now arise.

10.36 In any event, the practical reality is that, without fully adjudicating on the issues as between the plaintiff and Ms. Barbouti - which it is not possible to do now that the plaintiff’s evidence as to the basis of his claim will never be tendered as it has finally settled its claim - s.

17 (2) does not prevent such a possibility. The policy of the subsection is to facilitate settlement as between one of the concurrent wrongdoers and the plaintiff, and it is not consistent with that policy for a court to proceed to adjudicate on what is now moot.

10.37 In this matter, it seems that the court will have to accept that it is simply not feasible, without proceeding to adjudication on those issues, to conclude that the “consideration” for the Settlement was the writing off of a claim of €1,444,000 and that therefore Ms. Barbouti has already received full value for her claim.

10.38 The total value of Ms. Barbouti’s claim, therefore, as of the date of the Settlement, was €1,652,805.30. The effect of the Settlement was that she paid that portion of the sum claimed by the plaintiff as relating to subcontractor’s fees, paid nothing to the Contractor, but also received nothing from the Contractor. She therefore, in effect, waived her claim for €1,652805.30 as against the plaintiff. The value she received from that is that she can never be required to pay the plaintiff anything for any monies due and owing to it and she can have no liability to the plaintiff for unlawfully excluding him from the site on 1 August, 2017. However, there is complete uncertainty as to what Ms. Barbouti might have been said to owe the Plaintiff

– which may of course have been nil - and the amount is, other than the payments to subcontractors, not made explicit in the Settlement. Neither will that precise amount ever be adjudicated upon in a court.

10.39 I am of the view that the word “consideration” refers to a precise monetary figure, which has been agreed between the parties. While, of course, it deals with s. 16 and not the meaning of “consideration” in s. 17 (2), the Supreme Court decision in Defender Ltd. v. HSBC France [2020] IESC 37, [2021] 1 I.R. 516, takes this view. There, it was argued that a settlement of proceedings in New York, which contained a full release for HSBC’s codefendant, a Bernie Madoff related entity, constituted “satisfaction” of the claim such that no cause of action remained as against HSBC. However, O’Donnell J. (as he then was, per curiam) held that, while the plaintiff had undoubtedly acquired something of value in exchange for releasing HSBC’s co-defendant from all claims and causes of action enjoyed by that codefendant, s. 16 contemplated “either the adjudication, or agreement, of damages” (at para. 130) and this was distinct from the release of a claim.

10.40 Of course, that finding was one based on the interpretation of the particular agreement reached in that case, and the question of whether there were any circumstances in which “an agreement involving the release of a claim, perhaps together with the payment of damages, could properly be characterised as satisfaction for the purposes of the 1961 Act” and indicated that any such settlement agreement would required to be construed on its own terms.

10.41 Although the Supreme Court was considering a different provision of the 1961 Act, in my view the reasoning applies by analogy. As I think is clear from the various potential interpretations of the Settlement reached between the plaintiff and defendant, which flow from the twin facts that their respective contentions about the monies payable for the works done were never adjudicated by a court, and that there is no express agreement in the Settlement as to the actual sum (if any) which was due by Ms. Barbouti to the plaintiff for the Works which had been done, it is not now possible to identify the “consideration” paid by the plaintiff to Ms. Barbouti in respect of her counterclaim.

10.42 In my view, only the third option in s. 17 (2) is applicable on the facts of this case and I now turn to consider that issue.

ii. Extent to which Third Parties are liable to contribute for the purposes of s. 17 (2) of the 1961 Act

10.43 In Iarnród Éireann v. Dowling [1996] 3 I.R. 321, it was held by Keane J. (as he then was) that the apportionment of liability as between concurrent wrongdoers is done on the basis of respective blameworthiness and not causation and it is accepted by the parties that this is the criterion to be applied to the apportionment of liability as between the plaintiff (with whom Ms. Barbouti is now identified) and the Third Parties.

10.44 The question of apportioning liability for the purposes of the third option in s. 17 (2) only arises in relation to the capping of the new walls, the haunching of the historic walls, and the problems with the foundations of the Warehouse. On each of these issues, the Third Parties concede a liability, albeit one subject to s. 34 of the 1961 Act, which I consider below.

- Foundations of the Warehouse

10.45 While it was submitted in the written Closing Submissions that the Third Parties were principally - but not wholly - liable for the design failure in the foundations to the Warehouse, in subsequent oral submissions, it was conceded that the Third Parties are fully liable to Ms. Barbouti for the costs of the underpinning works now required and I do not need to apportion liability as between the parties for the cost of remedying this defect. I think this is correct as it was a design matter, wholly within the role of the Third Parties on the facts of this case.

10.46 The precise figure for the underpinning works was not stripped out of the overall figure in the Scott Schedule which related to all defects in the Warehouse, so I am not in a position to quantify that liability at this point though I understand that it will be in the region of €35,000 or €40,000.

- Liability for capping and haunching of historic walls

10.47 Mr. O’Connell, in his first report of May, 2021, commented on the bedded capping or haunchings placed on this historic walls: “Bedded Cappings – these are unsatisfactory and stone in this case should, in my opinion, have been of adequate form and mass and have been bedded in gauged mortar; stone sizes are inadequate to hold in the format used – these cappings are unsuitable as executed and are, in my view a joint responsibility, primarily that of the plaintiff, and through acceptance of the third party: category – moderate.”

10.48 In his Supplemental Report of November, 2022, he stated: “I acknowledge that a gauged mortar ought to have been used, and that the stones used in the saddle cappings to historic walls ought to have been bedded to the existing wall in gauged mortar rather than laid on as in the areas in which remedial capping has been applied: these cappings require reinstatement.”

10.49 It seems to me that the implementation of the haunching by the Contractor is at least as faulty as the failure of the Third Parties to pick up on the issue on inspection and I would therefore accept Mr. O’Connell’s assessment that the Contractor and the Third Parties are equally responsible and would apportion liability for that particular defect on a 50/50 basis. While it seems that the stones were incorrectly chosen by the Contractor they were, as Mr. O’Connell indicated, accepted by Mr. Gilligan on behalf of the Third Parties. Moreover, there is no doubt but the size of the stones was a patent defect.

- Apportionment of liability in respect of defective bedding mortar

10.50 This, strictly speaking, does not arise for determination at all. However, it may be prudent to indicate my view on this point so far as the bedding mortar in the new walls and the reconstructed portions of the historical walls are concerned.

10.51 In my view, insofar as there are defects in the bedding mortar used in the construction of the new walls reconstructed portions of the historical walls I think these should be treated together. I also think it is clear that by far the greater liability attaches to the Contractor.

10.52 Ms. Barbouti submitted that greater liability attached to the Third Parties because, on her view of the case, the defects in the walls were readily discernible even from late 2014 or early 2015, and, had Mr. Gilligan noted the defects early in the construction of the walls, he should have directed the taking down of the limited section of wall which had been built at that time and should also have given such directions to the Contractor as would remedy its defective practices in mixing the bedding mortar. The result would have been that the greater part of the defective walls would never have been built.

10.53 This submission is based on Mr. Keenan’s opinion that the defects in the mortar would have been visible within days. However, for the reasons stated above, I do not accept that opinion.

10.54 The result is that, at best, a period of approximately ten months would have passed before the defects became patent (applying, by analogy, the period from which construction started on the piers in Wall 1 and the cladding of the Warehouse commenced, to the time this area was inspected by Mr. Keenan in March, 2018). However, by then, it would have been late 2015, by which time all of the walls had been constructed.

10.55 In my view, for the reasons given in section 5 in which I deal with the liability of the Third Parties for the defects which have arisen, it is clear from the evidence that the defects were not visible in 2014 or even in mid-2015, and indeed there is no evidence of any patent defect in the mixing of any part of the mortar until photo 154 was taken in the winter of 2016/2017. By then, all of the walls other than the area around Wall 1 where the piers and surrounding area were being constructed as of 1 August, 2017, (and of course the cladding to the Warehouse) had been constructed and only capping and pointing remained.

10.56 As I have also found, the defect was visible in the winter of 2016/2017 in one section of Wall 10, which was reasonably assessed by Mr. Gilligan as attributable to a problem with the particular mix used in that section of wall, together with inadequate capping due to difficulties in the contractor’s supply of materials.

10.57 Assuming, however, strictly for the purposes of argument, that Mr. Gilligan ought to have assessed this as a systemic issue, it is clear that all he could have done at that stage is to have investigated to what extent the issue was present throughout the new and newly constructed walls and – on Ms. Barbouti’s case – to then instruct the contractor to demolish the walls, put the stone aside, and reconstruct them.

10.58 In that event, I incline to the view that he would have had little, if indeed any, blameworthiness, for the issues which had arisen. As a result, it is my view, apportioning the responsibility of the architect and contractor, that the degree of blameworthiness would rest almost exclusively with the contractor and I would apportion blame as to 90% against the plaintiff and as to 10% against the Third Parties.

10.59 As Ms. Barbouti is now identified, in accordance with s. 17 (2) of the 1961 Act with the default and responsibility of the Contractor, the Third Parties would only be liable for 10% of the cost of remedying the defects in the Walls.

Contributory negligence, s. 34 of the 1961 Act

10.60 Finally, so far as the Civil Liability Act, 1961, is concerned, the Third Parties rely on s.

34 of the 1961 Act for the proposition that Ms. Barbouti is in fact, in that timeless phrase included in countless defences, “the author of her own misfortune”. In other words, it is said that she is responsible for the situation she finds herself in. The plea has been of contributory negligence within the meaning of s. 34 (1) of the 1961 Act, which provides: “(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: provided that-

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;

…

(2) For the purpose of subsection (1) of this section –

…

(b) A negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage that would otherwise have occurred;

(c) The plaintiff’s failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the plaintiff’s breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent….”

10.61 The Third Parties allege two forms of contributory negligence or failure to mitigate her loss on the part of Ms. Barbouti. First, they point to her dismissal of the Contractor and her exclusion of the Contractor from the Site on 2 August, 2017, together with her action in dismissing Mr. Gilligan as architect when he attempted to operate the contractual provisions and to prepare a Final Account. Secondly, they rely on the fact that the Walls have been left unprotected and open to the elements for several years from 2017 to the date of trial, during which they degraded further, and which they say has contributed to the degradation of the mortar and increased the damage arising from the defects from what it would have been had she taken steps to protect and/or repair it.

10.62 Ms. Barbouti submitted that this point had not been properly pleaded or particularised and therefore should not be entertained.

10.63 I do not accept this is so and it is difficult to understand how it can be argued given the very clear pleas in the Third Party Defence which was delivered on 10 September, 2021. Para.

17 (iv) pleads, inter alia, that any loss or damage claimed is “solely attributable to the Defendant’s own wrongful and unlawful conduct in seeking to repudiate her agreement with the Third Parties, refusing to discharge sums due and owing to the Third Parties and excluding the Third Parties and the Plaintiff from the Property (thereby preventing the Third Parties from carrying out any further architectural services in relation to the Works that were outstanding).” In my view, this is very clear, and is followed at subparagraph (v) by a plea that the defendant failed to mitigate her loss.

10.64 At para. 18, contributory negligence is pleaded and the particulars at (i) and (ii) plead that the plaintiff and Third Parties were excluded from the site before the Works were completed and that the Third Parties were impeded in the performance of their duties by the defendant’s action in unilaterally halting the works, and that the Third Parties were excluded from their role.

10.65 It is therefore clear that the Third Parties pleaded that the defendant was potentially wholly liable for the damage she had suffered due to her own actions, due to a failure to mitigate her loss and/or due to her contributory negligence. A Notice for Particulars, insofar as it related to paras. 17 and 18 of the Third Party Defence provoked the response that it had been adequately pleaded and further details were a matter for evidence, and I think that was plainly right. Unsurprisingly, there was no motion to compel further replies. Although the Third Party Defence was subsequently amended at trial to plead the effect of the Settlement with the Plaintiff which had just been reached, these issues were pleaded by the Third Parties from the outset.

10.66 This objection is not well founded and I now turn to consider the effect of section 34.

- Dismissal of the Contractor and Dismissal of Mr. Gilligan as Architect

10.67 The stand out event giving rise to the litigation was, of course, Ms. Barbouti’s action, apparently effected overnight on 1/2August, 2017, in excluding the plaintiff from the site without notice, before the Works had been completed. The Third Parties submit that this has significant, and indeed determinative, consequences for her claim as they say that this not only prevented the Contractor from completing the Works, but prevented the Third Parties from discharging their obligations to her under the Standard RIAI Architect’s Contract.

10.68 They also say, in the alternative, that Ms. Barbouti’s action in excluding the Contractor before the Works could be completed, and before appropriate inspections of the Works could be undertaken by the Third Parties, mean that, even without the Settlement, her own contribution to the damage is such that the Third Parties would have no liability to her in any event and, on this point, they rely on s. 34 of the 1961 Act.

10.69 There are, as I understand it, three inspections which the Third Parties say were prevented by Ms. Barbouti’s action in excluding the Contractor.

10.70 First, they say that there is no evidence that the Third Parties had any opportunity to inspect that part of the works which were ongoing at the time the Contractor was excluded from the site, that is, the construction of the gates and piers on Wall 1 and the cladding of the Warehouse. Secondly, they say that, prior to the issue of a Certificate of Practical Completion in respect of the Warehouse and the Orchard, the Third Parties would have followed the same procedure as had been undertaken in relation to the House, and would have conducted an overall inspection of the works to both the Warehouse and the Garden in order that any significant defects would be remedied. Thirdly, they say that, even after the issue of a Certificate of Practical Completion in relation to the Warehouse and the Orchard, further inspections would take place during the period of final measurement leading to the issue of the Final Certificate and that this period was likely to be 12 months as that was the defects liability period which had been indicated in the Certificate of Practical Completion which issued in relation to the House.

10.71 The Third Parties say that, by reason of Ms. Barbouti’s unreasonable and unlawful action in excluding the Contractor from the site on 1/2 August, 2017, none of these inspections could be conducted. As a result, the Third Parties say that they were prevented from discharging their duties to her pursuant to the Standard RIAI Architect’s Contract such that she is fully responsible for any defects which remain and the Third Parties’ liability to her is nil.

10.72 There are three aspects to this argument. First, as I have found, the systemic issues with the mortar were not, as of 1 August, 2017, discernible by way of periodic visual inspection. No one will ever know whether the precise defects identified by Mr. Keenan in March, 2018 would have been discernible as part of the periodic visual inspections given that the cladding to the Warehouse and the gates and piers on Wall 1 were still in the course of construction when Ms. Barbouti excluded the Contractor from the site. They would, in due course, have been completed and may well – as many of the walls were and given that there was now pressure on the plaintiff to complete the Works in full – have been pointed up such that the bedding mortar would have been hidden from view. In that event, they would have looked quite different as of March, 2018, had Ms. Barbouti permitted the Works to have been completed.

10.73 But on the assumption that they would not have been pointed up, and on the assumption that the degradation of the mortar after the winter of 2017/2018 would have made visible the difficulties with the mortar, then (as Mr. Gilligan demonstrated by recording the location where he identified degradation of the mortar while the Works were ongoing) this was something that I am satisfied would have been investigated by him in the course, firstly, of an inspection prior to issue of a Certificate of Practical Completion in relation to the Warehouse and the Orchard, which I am satisfied would have taken place, and, secondly, before inspection prior to issue of the Final Certificate.

10.74 In my assessment of Mr. Gilligan’s evidence, while it could be said that he did not undertake a particularly speedy investigation of the problem with the mortar mix which he had identified in photo 154, I am satisfied that it was reasonable of him to assume that any problem with the mix was confined to that area. This was an issue to which he was to return and I am satisfied that he would have done so either prior to the Certificate of Practical Completion (had he determined that problems with the mortar in the wall depicted in photo 154 were being replicated in Wall 1 and in the Warehouse), but, at the very latest, during the period of final measurement. I am further satisfied that had he noted similar issues in the portion of Wall 1 which was under construction in June, 2017, or in the Warehouse (where the same issues as to ground levels or new build being constructed on top of old did not arise) prior to issuing the Certificate of Practical Completion in respect of the Warehouse or the Garden, I am satisfied that this is something he would have further investigated and required the Contractor to remedy prior to completion of the Works.

10.75 Moreover, I do not accept Mr. Keenan’s evidence that, as the problem was evident while the Works were ongoing, it would not have been picked up during the period of final Measurement either. For the reasons stated above, I do not accept Mr. Keenan’s view that the defects in the mortar would have been visible “within days” and that the were so obvious during the Works that Mr. Gilligan’s failure to identify them meant that he could not be relied upon to conduct further, reasonably diligent investigations as required. I do not accept that.

10.76 I am satisfied that, during the period of final measurement, Mr. Gilligan, being conscious of the importance of identifying all remaining defects and the conclusive nature of any Final Certificate, would not only have taken care to identify any defects – large or small – in the Works – but would also have undertaken the necessary investigations which were appropriate having regard to the defects observed by him. In fact, I am satisfied that he was approaching the defects which he had identified – the cracking of the plaster and inadequate capping at the top of the wall depicted in Photograph 154 and the sporadic lime leaching on Walls 1 and 8 – as matters which he had time to investigate and find a solution for, whether prior to the issue of a Certificate of Practical Completion in relation to the Garden, or during the period of final measurement. And I note that Mr. O’Connell’s evidence was that lime leaching of the kind shown on the photographs as being evident prior to 1 August, 2017, would normally be regarded as not unusual and a matter of snagging.

10.77 By determining the contract with the plaintiff in the manner in which she did, Ms. Barbouti prevented all of that from occurring.

10.78 Ms. Barbouti relied strongly in her closing submissions on the dictum of Fennelly J. in KBC Bank Ireland plc v. BCM Hanby Wallace [2013] 3 I.R. 759 at para. [90] that:

“A professional person is necessarily in a very weak position if he tries to say that his client should have seen that he was negligent.” This submission is based on the obligation of the Third Parties under the Standard RIAI Architect’s Contract to advise a client about his obligations under the building contract. As I understand the submission, it is argued that the Third Parties cannot rely on the action of Ms. Barbouti in terminating the building contract to argue that she prevented Mr. Gilligan from conducting further inspections, as Mr. Gilligan should have advised her not to act as she did. For the reasons already stated, I have already found that Mr. Gilligan was under no such obligation.

10.79 Even assuming that that obligation applied, any attempt to rely on the KBC Bank case in this instance is misplaced. The Supreme Court accepted in that case that the appellant bank was negligent in its appraisal of the creditworthiness of the borrowers and, as a result, were at least partly responsible for their own loss. However, Fennelly J. went on, in para. [90], to distinguish between the task for which the respondent solicitors’ firm was retained and the contributory negligence of the bank. While the Supreme Court accepted that it would be difficult for a professional to attempt to avoid liability for professional negligence by complaining that the client had failed to notice the negligence or check that the professional had done the “very thing” he or she was engaged to do, the position was otherwise where the negligence or want of care of the client had – at least in part – led to the damage. So, in that case, the negligence of the bank itself in failing to assess the creditworthiness of the defaulting borrowers was a cause of the loss to the bank, while another was the failure of the respondent solicitors firm to ensure that security was provided for the loans, as they had been instructed to do.

10.80 In this case, I think it would be very difficult to say that advising Ms. Barbouti on whether it would be lawful under the contract to exclude the Contractor was the “very thing”

which the Third Parties were retained to do. They were retained to advise on the design and specifications for the works and to conduct the inspection exercise already discussed in section

4 (in which the scope of Mr. Gilligan’s duty as architect is discussed). Certainly by the time Ms. Barbouti decided (on her own initiative) to exclude the Contractor, the principal duties of the Third Parties under the RIAI Architect’s Contract were to provide specifications and advice on the last stages of the project, such as the external lighting for the Garden, the waterfall (which ultimately did not proceed), and the construction of the gates and piers in Wall 1 at the entrance to the Garden. It could hardly be said that one aspect of the standard services under “Work Stage 7: Project Planning” of the RIAI Architect’s Contract, namely “Advise client on the appointment of the contractor and on the responsibilities of the parties and the architect under the building contract” could be regarded as a core function of an architect who performs the 50 standard services spanning the 8 stages of this contract.

10.81 Furthermore, and more importantly, on the facts of this case, the clear evidence is that Ms. Barbouti never asked for Mr. Gilligan’s advice on what she was about to do but, on the contrary, was careful to hide her intentions from him. The first Mr. Gilligan knew of the termination of the contract was when he was “summoned” to attend the offices of Ms. Barbouti’s solicitors where the firm retained by her were careful to ask a litigation partner to attend. It is clear from the account of those present at the meeting - Mr. Gilligan, Mr. Gartlan, and Ms. Barbouti herself - that it was Mr. Gartlan who was at that point taking the role of the person acting for Ms. Barbouti in connection with the issues she was raising about the Works.

10.82 Lest there be any ambiguity in that last remark, I should stress that it is also clear that neither was Mr. Gartlan told by Ms. Barbouti that she was about to exclude the Contractor. Mr. Gilligan’s evidence on this point was, in essence, that he had no idea Ms. Barbouti was about to exclude the Contractor. Her solicitors were in the same position. To find Mr. Gilligan or the Third Parties liable on the basis that they failed to advise or warn Ms. Barbouti from excluding the Contractor from the site when she had taken care to conceal her intentions not only from Mr. Gilligan but from the solicitors who, by this point, had clearly been retained to deal with a likely dispute with the contractor, would be not only unjust, but contrary to common sense. The

decision in KBC Bank has no application to this situation.

10.83 Notwithstanding that Ms. Barbouti chose to liaise with her solicitors rather than Mr. Gilligan, Mr. Gilligan nevertheless did attempt to resolve the dispute which at that point was about minor defects in the House which would fall within the “snagging” process and were perfectly capable of remediation within the defects period for the House, which had several months left to run, but seemed principally to be about overcharging. He made the very helpful suggestion that a quantity surveyor would be retained to review the costs – something which ultimately Ms. Barbouti had to do anyway to deal with the Contractor’s claim – but his advice was dismissed out of hand. Not only that, but when he attempted to appoint a quantity surveyor himself to deal with the Final Account, Ms. Barbouti summarily dismissed him as architect, preventing him for discharging his obligation to administer the building contract.

10.84 The reliance on KBC Bank, therefore, is not only misplaced having regard to the judgment itself but flies in the face of the clear evidence as to how events unfolded from 1 August, 2017, onwards.

10.85 Indeed, Ms. Barbouti’s attitude to Mr. Gilligan’s attempt to operate the relevant procedures under the contract can be seen by her action in dismissing him on 21 December, 2017, because he attempted to appoint a quantity surveyor to assist him in preparing the Final Account, an entirely reasonable course and one capable of resolving much of the dispute between Ms. Barbouti and the Contractor as it existed at the time and indeed for several years prior to the raising of the defects in the walls as an issue.

10.86 I am satisfied to a very high degree of probability that, had Ms. Barbouti allowed Mr. Gilligan to do his job and to discharge his duty to her both in August, 2017, and subsequently, then at the very least the plaintiff’s claims for outstanding monies, the snagging of the House and the donkey shed, and Ms. Barbouti’s attempt to claim an indemnity from Mr. Gilligan for both the monies the plaintiff claimed were due and owing and for her quantity surveyor’s fees, would never have had to be litigated.

10.87 For those reasons, I am also satisfied that it is Ms. Barbouti herself who is responsible for preventing Mr. Gilligan from conducting his intended investigation of both the sporadic lime leaching and the isolated incident of a defect in the mortar. I am satisfied he would have pursued both prior to the issue of any Certificate of Practical Completion in relation the Warehouse and Garden, and during the defects liability period leading to the Final Certificate. He could not discharge his duty to Ms. Barbouti because she halted all works on the Site and, ultimately, dismissed Mr. Gilligan as architect even as he tried to resolve her dispute with the Contractor having regard to the terms of the Standard RIAI Blue Form Contract, which I am satisfied applied insofar as Certificates and Payments were concerned. Her exclusion of the Contractor from the Site and, indeed, her purported dismissal of Mr. Gilligan as architect, prevented Mr. Gilligan from conducting inspections of the site which might have disclosed significant defects in the mortar throughout the newly built walls and the reconstructed portions of the historical walls – and indeed would have done so had they been patent prior to the

conclusion of the defects liability period which I am satisfied would have been afforded to Ms. Barbouti. It also prevented him from further investigating the cases of the sporadic lime leaching which was visible, and the cracking of the mortar near the top of an uncapped wall, both of which he had already noted for further investigation.

10.88 Those investigations might – though I think given the complexity of issues which arose on the site this is far from certain - have led to the discovery of the more significant defects in the mortar during the Defects Liability Period. (Insofar as they would not have been discoverable during that period, that would of course only serve to confirm that the Third Parties are not liable to Ms. Barbouti for the defects in the bedding mortar.)

10.89 It should be noted that, the Warehouse and Orchard were incomplete, and Mr. Gilligan had not yet conducted an inspection to confirm that they were suitable for use by Ms. Barbouti and that there were only minor defects for remediation during the defects liability period. The plaintiff was estimating that the Works would be done in weeks, though this may have been indicated in response to pressure from Ms. Barbouti to indicate an end date. But in any event it is clear that the 12 month period would not even have commenced before September, 2017.

10.90 I am fully satisfied that, insofar as the defects would have become patent in the 12 months from September, 2017, to September, 2018, Mr. Gilligan would, as he did with the other defects, have noted them and investigated them. I am satisfied that he would have taken care to investigate any patent defects and to direct the contractor to remedy them within the defects period.

10.91 For those reasons, I am of the view that Ms. Barbouti prevented Mr. Gilligan from discharging his obligations to her under the Standard RIAI Architect’s Contract and his duty, in providing the services under that Contract, to meet the standards of a reasonable architect. She acted entirely unreasonably in excluding the Contractor from the site, in refusing the advice of her own solicitor to appoint a quantity surveyor to resolve her dispute with the Contractor as to costs, and in dismissing Mr. Gilligan as architect.

10.92 Indeed, pursuant to Clause 3 of the Terms and Conditions of the RIAI Architect’s Contract, headed “Client Duties”, it is stated that the client will “employ a contractor under a separate agreement to undertake building or other works”.

10.93 Immediately thereafter, it is provided: "The client will… hold that contractor (and not the architect) responsible for the supervision of construction work, for the operational methods, techniques, sequence of procedures and safety precautions, for the proper execution and completion on time of the building work, for any design work the contractor undertakes, and for the remedying of defects by the terms of his contract with the client."

10.94 Ms. Barbouti therefore seems to have breached her contract with Mr. Gilligan when she dismissed the Contractor and failed to appoint a replacement. It is difficult to see how she can then pursue Mr. Gilligan for defective works, particularly when she prevented him from conducting the inspections which would be required and which on the facts of this case were going to be conducted by him prior to issuing a Certificate of Practical Completion in respect of the Warehouse and Orchard. She also prevented Mr. Gilligan from identifying further defects during the Defects Liability Period which I am satisfied would have been 12 months. This period had not even commenced on 1 August, 2017, and was likely to have commenced in September, 2017.

10.95 On Ms. Barbouti’s case, the defects in the mortar were becoming progressively more apparent with time. While it is impossible to say that the area inspected by Mr. Keenan in March, 2018, would have been in the same condition at that time if the Contractor had not been dismissed – in fact it is probable that it would not, as that portion of the Works would likely have been completed and the walls pointed – it is the case that, as more deteriorating mortar came to light over the Defects Liability Period, which would have lasted until at least August, 2018, and probably later, Mr. Gilligan would have had the opportunity to require the Contractor to remedy those defects on Ms. Barbouti’s behalf. By her actions, Ms. Barbouti prevented all of that from happening.

10.96 Consistent with her general approach of believing she can choose to be bound by those terms which, in hindsight, seem favourable to her, while ignoring her obligations, Ms. Barbouti

– in asserting that the Standard RIAI Architect’s Contract governed the relationship between herself and Mr. Gilligan – appears to have overlooked the fact that she had an obligation under that particular contract to employ a Contractor. Notwithstanding this, she repeatedly gave evidence that she had no agreement with the plaintiff. Insofar as Ms. Barbouti had no agreement with the plaintiff, and certainly on the basis that she dismissed the Contractor on 1/2 August, 2017, Ms. Barbouti was thereby in breach of her contract with the Third Parties and prevented them from discharging their obligations to her as architects.

10.97 In those circumstances, I am satisfied that Ms. Barbouti’s actions were so unreasonable that it is just and equitable that any liability on the part of the Third Parties should be reduced to nil. This has been confirmed by the Supreme Court in McCord v. Electricity Supply Board [1981] ILRM 153, where a plaintiff was found to have acted unreasonably in failing to cooperate with the defendant so as to procure the reconnection of his electricity supply. While the defendant Board had misconstrued its powers so that the disconnection was unlawful, the loss and damage occasioned to the plaintiff and his family was held to have been caused by the plaintiff’s unreasonable behaviour. Reasonable co-operation on his part would have led to reconnection.

10.98 In McCord, Henchy J. referred to Carroll v. Clare County Council [1975] IR 221, at 227, where Kenny J. stated: “I think that ‘fault’ in s. 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that degrees of ‘fault’ expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant[to the happening of the accident] which is to be the basis of the apportionment.”

10.99 A majority of the Supreme Court were satisfied that the plaintiff’s actions in McCord were so unreasonable that the defendant’s liability should be reduced to nil. Henchy J. stated (at 166): “What would a reasonable plaintiff have done in these circumstances? The plaintiff here had been cut off for non-payment of accounts on at least two previous occasions. In May, 1978, he was aware that he had been receiving either free or excessively cheap electricity over a period of approximately three years, at a time when he and his wife were the only adults in the house, and the eldest of his four children was then only seven years old. He knew that unless he signed the acknowledgment that he did not know how the meter came to be tampered with, or by whom, his supply of electricity would be cut off. A reasonable request had been made of him, as found by the learned trial judge, and he was wholly unreasonable in refusing to co-operate with the Board. In the circumstances as found by the learned trial judge the fault of the plaintiff so outweighed that of the defendant that in my opinion justice and equity requires that the entire of the damage should lie upon the plaintiff.” 10.100 Although the circumstances in this case are quite different, the degree of unreasonableness on Ms. Barbouti’s part in this case is of a similar nautre. In my opinion, the justice and equity of the case requires that even had the Third Parties been found liable in negligence, the actions of Ms. Barbouti in preventing them from conducting the further inspections which would inevitably have followed had she allowed the works to progress, and her action in dismissing the plaintiff when he attempted to operate the relevant contractual provisions so as to prepare a Final Account (a process which would necessarily have included inspections for the purpose of identifying defects within a 12 month Defects Period) were so wholly unreasonable that justice and equity would require the liability of the Third Parties to be reduced to nil.

10.101 I should add that Ms. Barbouti’s counsel relied on para. 8-009 of Hudson on Building Contracts (London, Sweet & Maxwell, 2022), 14th ed., for the proposition that: “In cases where a party has purported to act on what is held to be an unjustified ground, the acceptance of repudiation may nevertheless be upheld or ‘rescued’ by reference to any other valid ground that existed at the time, and which was not waived by the innocent party...Thus an Employer may be able to rely on very serious defects in the works which only came to light after a disputed termination….”

10.102 No authority is cited for that proposition, which seems to relate to the contractual relationship between the employer and the contractor and not the employer and the architect. Even if Ms. Barbouti was entitled to rely, ex post facto, on the subsequently discovered defects in the Works, it is difficult to see how it would entitle her to maintain a claim against the architect for failing to inspect, when the defect was not reasonably discoverable by the Third Parties prior to termination of the building contract, and where the termination of the building contract prevented the architect from discharging his ongoing duties to the employer.

- Failure to protect the works

10.103 A second form of contributory negligence was alleged in that Ms. Barbouti has not, in the years since the contractor was excluded, taken any steps to protect or repair the walls. It is said that this has led to additional deterioration in the mortar which could have been prevented. 10.104 On this point, I would not find Ms. Barbouti guilty of any contributory negligence. Certainly, the mortar was more degraded when examined by Dr. Bolton in the autumn of 2021 than it would otherwise have been. The process of degradation was quite likely accelerated and the defect came to light more quickly than would otherwise be the case. However, the latent defect was present in the mortar in any event and I do not think Ms. Barbouti’s actions in preserving the walls without repair for the period from 1 August, 2017, to the trial has contributed in any meaningful way to the damage she has suffered in the form of faulty workmanship (though it has certainly complicated the assessment of the factual evidence relating to when the defects became patent, as the appearance of the bedding mortar by the time the defects in it became a significant issue in the case, which did not occur until late 2021, was probably quite different from its appearance in 2017). I note that the Third Parties’ expert architect, Mr. O’Connell, expresses this view in his Supplemental Report of November, 2022. I do not think this constitutes contributory negligence on the part of Ms. Barbouti.

Conclusion

10.105 In conclusion on the issues arising under s. 17, s. 35 (1) (h) and s. 34 of the Civil Liability Act, 1961, I find that it is not possible to identify the “consideration” paid to Ms. Barbouti by the plaintiff on foot of the Settlement. As a result, were apportionment of liability under s. 17 (2) of the 1961 Act the determinative issue, the damages payable to Ms. Barbouti would have to be reduced by reference to the respective liabilities of the plaintiff and the Third Parties in relation to the various defects, and not by reason of the Settlement. 10.106 As regards the haunching of the historic walls, this was a patent defect and Mr. Gilligan should be responsible to the extent of 50% of the damage to Ms. Barbouti. However, Ms. Barbouti’s actions do not prevent her from recovering for this sum, as Mr. O’Connell referred to Mr. Gilligan as having accepted the faulty implementation of the Contractor. 10.107 I do not have a figure for this as it has not been presented as an individual item in the Scott Schedule. However, it was agreed with the parties during the closing submissions that the precise figures would be agreed and produced after judgment.

10.108 As regards the foundations to the Warehouse, Mr. Gilligan is fully liable to Ms. Barbouti for the cost of remedying same. A final figure for this was not available at the conclusion of the trial but was in the order of €35,000 to €40,000. A final agreed figure is to be produced by the parties after judgment. 10.109 As regards the defects in the bedding mortar in the new and reconstructed portionso f the historical walls, as previously found, I am satisfied that these were not ascertainable on periodic visual inspection and that the Third Parties are not liable for same. However, had the Third Parties been liable, on the facts of this case, I find that the defects would still not have become patent until all of the walls had been constructed. As a result, the liability of the Third Parties’ for these defects would have to be very limited. I find that 10% of the blameworthiness should attach to the Third Parties, had they been found to be liable. 10.110 However, even that liability would have to be reduced to nil by the actions of Ms. Barbouti in dismissing the Contractor and excluding its workmen from the Site prior to completion of the Works, her refusal to appoint a quantity surveyor or the preparation of a Final Account, and her action in dismissing Mr. Gilligan as architect in response to his attempt to administer the terms of the building contract. In so acting, Ms. Barbouti acted entirely unreasonably. Furthermore, she prevented Mr. Gilligan from inspecting the Works which were still ongoing, she prevented him from inspecting either the Warehouse or the Orchard prior to issuing a Certificate of Practical Completion in relation to either of them, and she prevented him from triggering the contractual terms relating to the Defects Liability Period. 10.111 In doing so, she was, as submitted by the Third Parties, the author of her own misfortune, has been guilty of want of care and contributory negligence within the meaning of s. 34 (1) of the 1961 Act, and has failed to mitigate her loss. Indeed, her unreasonableness has been patent from her actions in suing Mr. Gilligan for failing to discharge the very obligations that she refused to allow him to perform.

10.112 In those circumstances, the justice and equity of the case requires that the Third Parties would not be liable to Ms. Barbouti and any damages payable to her for negligence (which I stress I find did not occur other than in respect of those defects where it was conceded, the foundations of the Warehouse and the capping and haunching of the walls) should be reduced to nil. 10.113 This reduction does not apply, however, to the design of the foundations in the Warehouse or to the acceptance by Mr. Gilligan of the inadequate haunching of the historic walls. Mr. Gilligan had designed the former and accepted the latter and Ms. Barbouti’s actions in preventing the Contractor from completing the Works instructed by her and in preventing Mr. Gilligan for carrying out the relevant inspections do not affect Mr. Gilligan’s liability for these defects. 10.114 There will be judgment in favour of Ms. Barbouti for compensation in the sums required to underpin the Warehouse and to remedy the defective haunching on the historic walls. The remainder of the claim is dismissed.

[The approved judgment was amended on 11 December, 2025, to correct errors in the paragraph numbering of sections 5 and 10.]