[2019] IEHC 36
THE HIGH COURT
2017 No. 203 S
PROFI WELDERS s.r.o.
Plaintiff
- and -
R&R MECHANICAL LIMITED
Defendants
JUDGMENT of Mr Justice Max Barrett delivered on 29th January, 2019.
1. Profi Welders supplies personnel for construction projects throughout Europe. R&R fabricates piping systems in Ireland. Profi provided personnel to R&R to assist in the construction/installation of piping systems needed at a power plant (the ‘Project'). There is no written contract between the parties governing the personnel supply arrangement. After ascertaining the availability of personnel, R&R would simply request a named individual and confirm the hourly pay-rate due to Profi for same. Profi seeks to recover payments it claims are owing in respect of personnel provided. By counterclaim, R&R claims that (1)(i) it was an express &/o implied term of the contract with Profi, &/o (ii) Profi represented &/o warranted, &/o (iii) Profi owed R&R a duty of care, to ensure that personnel supplied were competent to do the tasks demanded, and (2) Profi was in breach of contract and/or negligent by providing what R&R claims were substandard, incompetent staff.
2. Over two days the court heard evidence from Mr M Pavlik and Ms Z Solopova (respectively a director and employee of Profi) and Messrs P Cassidy and L Daciuk (both senior employees of R&R). Arising from their evidence and such other evidence as is before the court, the following has been established:
(1) Profi undertook and sought to ensure that all personnel supplied were technically qualified for the work demanded of them; it gave no warranty beyond that.
(2) it has not been established that Profi supplied staff who were not technically qualified for the work demanded of them.
(3) Profi did not undertake to complete the construction project in which R&R was engaged.
(4) R&R was solely responsible for the adoption of work systems and quality assurance and other procedures for the said construction project.
(5) R&R was solely responsible for managing and supervising, and did manage and supervise, the Profi personnel in Ireland.
(6) it was R&R's responsibility to carry out and manage such skills tests as were appropriate in the context of the construction project undertaken.
(7) though there were some concerns raised with Profi by R&R about the performance of certain Profi personnel, (a) from the commencement of the personnel supply arrangement in spring 2016 until the time when it became clear that R&R was not going to pay the still-outstanding payments, the supply arrangement generally worked well, (b) although it was open to it so to do, R&R never asked that any individuals supplied by Profi be replaced, (c) it is clear from the evidence of Ms Solopova (who attended in Ireland for a time to see what could be done to resolve such issues as had arisen) that the issues presenting as regards the quality of welding work done represented a small fraction of the welding work done and were eminently capable of timely resolution.
(8) the termination of R&R's contract with the main contractor is a matter to which Profi is in truth a stranger; however, it appears from the documentation before the court that the termination was done not for cause but for convenience, i.e. simply because it was desired that R&R remove itself from the construction site (perhaps because of an on-site contretemps which involved the Gardaí being called after entry by non-R&R staff onto R&R's on-site premises).
(9) Mr Pavlik's efforts to assist R&R if and when he was contacted were but the to-be-expected efforts of a competent and professional businessman engaged in the supply of personnel. His actions did not involve an assumption of any liability by Profi for the doing/completion of the construction project in which R&R was engaged; nor do they in any way affect any of the conclusions reached herein.
(10) it does not appear that Ms Solapova's work was provided, as contended, on a complimentary basis; the repeated efforts by Mr Pavlik to agree a discounted basis for Ms Solapova's work suggests to the court that, on the balance of probabilities, her work in Ireland was chargeable to R&R's account.
(11) the claim made out by Profi is effectively undisputed; by contrast, R&R's counterclaim is vague and unsubstantiated.
3. As a consequence of the above findings, the court concludes that Profi Welders has established the liability of R&R, as a matter of contract law, for the sums claimed in the summons of 08.02.2017; by contrast, R&R has failed to bring any aspect of its counterclaim home. The court will therefore grant the reliefs sought by Profi in its summons. All reliefs sought by R&R are respectfully refused.
4. The court notes that there was some late-discovery of documentation on both sides. Though this is to be regretted, discovery is inherently subject to human error and not every failure to make discovery necessarily involves wrongdoing; nor does the court see any wrongdoing to present here. The court notes that in reaching its conclusions it has done so by reference, inter alia , to all the documentation placed before it, including the belatedly discovered documentation.
