Developer sues after floors in new Tallaght estate allegedly started sinking

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The developer of a new housing estate in Tallaght, Dublin, is suing an insulation board manufacturer after floors in some of the new homes allegedly started sinking.

Kelland Homes is building the 370-home "Elder Heath" development at Kiltipper. It claims it will cost at least €2.2m to fix the defects in the houses, some of which are already occupied.

It says it used allegedly defective underfloor insulation boards manufactured by Ballythern of Ballyconnell, Co Cavan and supplied by Clondalkin Builders Providers and James McMahon (Dublin).

Kelland says floors in some houses experienced settlement resulting in the ground floors sinking below the level of the skirting boards.

Repair works involve breaking the ground floor slabs in the houses, taking up and replacing the insulation, and reconstructing and reinstating the floor slab and covering. Kelland says the residents affected have to be temporarily rehoused and compensated.

Kelland's negligence and breach of duty claim is against Ballytherm, Clondalkin, James McMahon and a Dutch company called Covestro which supplied Ballythermwith a pre-mixed foam system containing a chemical which was used in the manufacture of the underfloor boards. All defendants deny liability.

Ballytherm claims Covestro is liable for any defects which may have been present the product.

Covestro denies this claim and asserts that any loss or damage sustained by Kelland was caused by Ballytherm. Ballytherm, Clondalkin Builders and James McMahon have sought an indemnity against Covestro.

Separately, Ballytherm is suing its insurers/underwriters, Brit UW Ltd, Leadenhall Street, London, claiming it has wrongfully refused to provide an indemnity under the product liability cover of its contracts liability insurance.

In that case, Ballytherm says it is entitled to an indemnity, subject to a limit of €6.5m. It says the value of claims already notified exceeds €6.5m.

In a pre-trial application, Kelland sought an order requiring Covestro to produce for inspection eight emails over which the Dutch firm asserts a claim of litigation privilege.

The emails, sent on August 8, 2018, were between Covestro's corporate insurance expert and its regional sales manager as well as between an insurance loss expert and the sales manager.

Mr Justice Michael Quinn ordered Covestro to make discovery of the emails in preparation for the trial which is set down for later this month.

He found Covestro failed to discharge the onus of proving the dominant intention of the emails was for this litigation. Therefore the claim of privilege failed.

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