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Row over youth centre hit by

A CASE over the supply of defective infill material for the construction of a Dublin youth centre has been referred to European Court of Justice (ECJ) for determination on a number of issues.

The case was taken by James Elliot Construction (JEC) against Irish Asphalt Ltd (IAL), which supplied the rock aggregate product for use as foundation in the Ballymun Central Youth Facility in 2005.

Within three years, floors and walls began to crack because of the presence of excess pyrite in the infill and the centre had to undergo a €1.55m remediation project.

JEC then brought an action for compensation against IAL claiming "pyrite heave" had caused the damage.

The High Court found the material was not fit for purpose or of merchantable quality.

IAL, in an appeal, challenged that decision and maintained that it was not liable to JEC as a matter of domestic and EU law.

It argued an implied term of the contract as to fitness for purpose of the material had not been breached.

Yesterday a three-judge Supreme Court found that on domestic law issues the appeal should be dismissed.

However, that would be subject to any issue of European law, which the court was referring to the ECJ.

The Supreme Court said it was setting aside the High Court finding.

However, it upheld other findings including that there was a breach of legislation in terms of merchantability.

It also rejected Irish Asphalt's contention that any liability to JEC was limited to the cost of replacement of the infill material.

succeed

In the Supreme Court decision ordering a referencing of the case to the ECJ, Mr Justice Donal O'Donnell said as a matter of national law JEC would be entitled to succeed and IAL's appeal would fail.

However, in light of IAL's contention that the High Court conclusions were inconsistent with and precluded by EU law, it had been decided to refer a number of questions on the case to the ECJ for a preliminary ruling or reasoned order.

In a statement after the Supreme Court decision, IAL said the reference to the ECJ justified the company's decision to appeal the case.

hnews@herald.ie


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