Ashdrum Lodge Ltd [t\a Kiernan Homes] v Barbouti (Approved) (Rev1) -[2025] IEHC 522- (21 August 2025)

Key Facts

Transaction Type

Issues

• The central issue was whether the Third Parties, as supervising architects, were negligent in failing to identify defects in the bedding mortar of the new and reconstructed walls during their periodic visual inspections.
• The court considered the effect of the Settlement with the Plaintiff under s. 17(2) of the Civil Liability Act, 1961, and whether Ms. Barbouti's actions constituted contributory negligence or failure to mitigate loss under s. 34.
• The court examined whether the Standard RIAI Blue Form Contract was incorporated by course of dealing between the Employer and Contractor, and whether the Employer was entitled to terminate the contract summarily without notice.
• Ms. Barbouti claimed fees for a quantity surveyor on the basis that the Third Parties should have facilitated the appointment of a QS earlier to control costs, and the court assessed the liability for these fees.

Holdings

• The Third Parties conceded liability for the inadequate haunching of historic walls and are responsible to the extent of 50% of the damage. The Defendant's actions did not prevent recovery for this sum under s. 34 of the Civil Liability Act 1961.
• The court found the Third Parties are not liable for defects in the bedding mortar of the new and reconstructed walls as these defects were not patent on periodic visual inspection prior to the exclusion of the Contractor. The Third Parties' liability is reduced to nil due to the Defendant's contributory negligence and failure to mitigate loss by dismissing the Contractor and Architect.
• The claim for quantity surveying fees incurred by the Defendant against the Third Parties must fail. The court found the Defendant would have had to retain a quantity surveyor at the Final Account stage in any event, and the higher fees were due to the Defendant's refusal to cooperate with the normal contractual procedures.
• The Third Parties are fully liable for the design failure in the foundations of the Warehouse. The Defendant's actions did not prevent recovery for this sum under s. 34 of the Civil Liability Act 1961.

Remedies

• The court awarded compensation to Ms. Barbouti for the costs required to underpin the foundations of the Warehouse. This defect was a design failure fully attributable to the Third Parties, for which they are fully liable.
• The court awarded compensation for the remediation of the inadequate haunching or capping of the historic walls. The Third Parties conceded liability, though the Third Parties are only responsible to the extent of 50% of the damage, subject to apportionment.

Legal Principles

• The defendant bore the burden of proving that the defects in the bedding mortar were patent and should have been identified by the architect during periodic visual inspections prior to the exclusion of the contractor. The court found that the defendant failed to discharge this burden as there was no contemporaneous evidence that the defects were visible or patent prior to August 2017.
• The court analyzed causation regarding the settlement and the settlement's effect on liability under section 17(2) of the Civil Liability Act, 1961. It determined that the value of the settlement as 'consideration' was a 'known unknown' and could not be precisely quantified, affecting the apportionment of liability between the plaintiff and the Third Parties.
• The court applied the principles from McGlinn v. Waltham Contractors Ltd. to define the architect's duty of care, noting that an architect is not a guarantor of quality but must exercise reasonable skill and care in periodic visual inspections. The court found that the architect's duty was to conduct periodic visual inspections and intervene if a defect was identified, rather than guaranteeing the quality of workmanship.
• The court applied the ejusdem generis principle to interpret section 17(2) of the Civil Liability Act, 1961, concluding that the word 'consideration' refers to an identifiable, quantified sum in monetary terms. This interpretation was supported by the ejusdem generis rule and commentary by Professor Glanville Williams, ensuring that 'consideration' aligns with liquidated sums rather than unliquidated damages.
• The court applied section 34 of the Civil Liability Act, 1961, regarding contributory negligence and failure to mitigate loss. It found that the defendant's unreasonable actions in excluding the contractor and dismissing the architect constituted contributory negligence, which reduced the Third Parties' liability to nil. This was based on the defendant being the author of her own misfortune by preventing further inspections.

Precedent Name

• Sunderland v. McGreevy
• McCord v. Electricity Supply Board
• KBC Bank Ireland plc v. BCM Hanby Wallace
• McGlinn v. Waltham Contractors Ltd. (No. 3)
• Iarnród Éireann v. Dowling

Key Disputed Contract Clauses

• Clause 31 of the Standard RIAI Blue Form Contract governs the issue of a Certificate of Practical Completion. The court examined whether this clause was incorporated by course of dealing and whether its provisions regarding the Defects Liability Period and retention monies applied to the relationship between Ms. Barbouti and the Contractor.
• Clause 3 of the Standard RIAI Architect's Contract sets out Client's Duties, including the obligation to employ a contractor under a separate agreement and hold the contractor responsible for supervision. The court found Ms. Barbouti breached this clause by dismissing the Contractor before works were complete.
• Clause 5 of the Standard RIAI Architect's Contract defines the architect's inspection duties, stating that frequent or constant inspection does not form part of the standard service. The court found this clause governed Mr. Gilligan's obligation to conduct periodic visual inspections.
• Clause 33 of the Standard RIAI Blue Form Contract governs dismissal of the contractor by the employer. The court found that this clause was not incorporated into the contract due to the rolling nature of the works and lack of defined scope, meaning Ms. Barbouti was not bound by its notice provisions.
• Clause 35 of the Standard RIAI Blue Form Contract imposes obligations on the Contractor to substantiate figures in a Final Account. The court found this clause was incorporated by course of dealing and that the Contractor was obliged to provide documentation to support claimed amounts.
• Clause 13 of the Standard RIAI Blue Form Contract establishes rules for fair valuation of works where no rates are agreed. The court found this clause was incorporated by course of dealing and applied to value the rolling works in the Orchard and Warehouse.
• Clause 32(A) of the Standard RIAI Blue Form Contract relates to Partial Possession of the Works, including the reduction of retention monies from 5% to 2.5%. The court found this clause was operated in practice when the Certificate of Practical Completion was issued for the House.

Cited Statute

• Planning and Development Act 2000
• Civil Liability Act 1961

Judge Name

Passage Text

• 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.
• 10.100 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 nature. 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.
• 10.50 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 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. 10.58 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.

Damages / Relief Type