Citation: 1 ESC 74 (Supreme Court of Ireland)
JEC, the contractors, were engaged to build a youth facility in Ireland, as part of an urban regeneration scheme. After practical completion, serious cracking developed in the structure and JEC undertook significant remedial work. It sought to recover the cost of remedying the defects from Irish Asphalt, which supplied it with fill material. It was alleged that this had expanded with moisture, in the phenomenon known as ‘pyrite heave’. The Irish High Court accepted this explanation. Irish Asphalt appealed to the Irish Supreme Court on the issue of its liability to JEC. The subject matter of the appeal was whether JEC should bear its own loss in executing the remedial work or whether it should be able to recover the cost from Irish Asphalt as supplier of the fill material. The Supreme Court held that the statutory implied term as to ‘merchantable quality’ had been breached, although there was no breach of a ‘fitness for purpose’ term and that Irish Asphalt could not rely on its own standard terms and conditions, which had not been incorporated into the agreement. However, the court accepted that issues had been raised in relation to EU law to require preliminary reference to the European Court of Justice. Specifically, the relationship between the standards set out in statute and the requirements of the Technical Standards Directive was sufficient to require resolution at ECJ level.