"(e). The failure on the part of the designer to identify that the introduction of creases, wrinkles or folds into the geotextile could lead to sand loss through, and around, the geotextile in the absence of gluing the geotextile all along its length on either side of the joint."
40 In proceedings of this complexity, with the number of counsel involved, the obvious intense preparation of the proceedings for final hearing, the literally hundreds of folders of evidence lining the court's walls, I cannot accept that a party such as the third defendant can be accepted if indicating that it was unaware, for example, that that particular subparagraph formed a part of the plaintiff's case sought to be here conducted.
How have the proceedings been litigated?
41 I turn from that particular issue, to the question of how the proceedings have been litigated. An extensive case management approach was taken, as I have understood it, by the list judge, Justice Bergin, over a number of years in order to try to best ready the case at case management level for hearing. My understanding was that the case had been fixed to commence some time earlier in 2005 but that date was moved for reasons which are common and unexceptional.
42 In any event, the case management of these proceedings and an examination of the documents which formed part of the court file as at the commencement of the hearing, makes plain that the most excruciating and minute attempts were made by the court in case management technique to bring an extraordinarily difficult case to a point where it was ready to be heard. I had understood that Justice Bergin had regarded the case management for a period of time as of such importance as to deal with it outside of the constraints of her Honour's usual Friday list.
43 One of the matters which Mr Robb submitted in support of the proposition that the court should not accede to the grant of leave, was that the third defendant had dealt with the plaintiff's case in terms of endeavouring to understand that case at least in part from the evidence which was being deployed [transcript 2785.10]. In many ways the extraordinary complexity of the pleadings from summons, through to defences to the summons, through to replies to the summons [and taking into account the several occasions when pleadings have been amended] is not to be unexpected in litigation raising questions of the type which have here been raised.
44 It seems always to have been an accident waiting to happen for the respective parties to, first in the conventional way, put forward their expert's evidence, and then, in the conventional way, seek in cross-examination to destroy or otherwise qualify the expert evidence adduced by the other party. It is common in such circumstances, [here particularly bearing in mind the complexities of the factual issues and the interrelated insurance issues] for a party to seize on some parameter of the cross-examination of the other party's witnesses in an endeavour to further their own case. To my mind that parameter has been quite obvious across the bar table. That is to say, the first and third defendants, and the plaintiff have sought to score points in the usual way through cross-examining one another's witnesses.
45 No do I accept that no issue arises concerning whether or not the insurers consent to the SACL settlement was obtained.
46 My understanding is that to the extent that the defendants have in the course of their pleadings sought to rely upon particular exclusion clauses, those exclusion clauses have been pleaded without detailed particulars of the evidence to be called to substantiate the suggested engagement of those provisions. To the extent that there is any substance in the proposition that the plaintiffs have approached the matter of their contentions that the policies did respond in like fashion, it seems to me that the parties have, from the commencement of the hearing until the end of the evidence given by the final witness, travelled the same road.
47 None of the other submissions by way of claims that particular pleading paragraphs are demurrable are of substance.
48 Ultimately the principled exercise of the relevant discretion must take into account the interests of justice. I have absolutely no doubt but that the principled exercise of that discretion is to allow the second further amended summons in the form now sought to be propounded for the many reasons which I have given, including as I have said, my very firm view that it was an entirely unacceptable course of procedure for the third defendant, in advance of taking a pleading point of significance, to call a witness put forward as having prepared a particular statement for the purpose of coping with the putative pleading.
49 For those reasons the second further amended summons will be allowed. The second further amended summons in the form which had the tracking on it, for the purposes of the record, will be exhibit 15/12/05-pleading.