Inspection ordered of quarry in claim against providers of stone products

Application for inspection - builders and developers of a substantial residential housing estate brought proceedings against providers of stone products – homeowners began to complain of what appeared to be structural defects - problem is alleged to have been pyritic heave – alleged that the stone supplied by one or other or more of the defendants contained highly reactive framboidal pyrite - Reactive framboidal pyrite is not suitable for subfloor infill - the upward pressure created (the pyritic heave) can cause the tightening of doors against floors and within door frames; damage to floors and floor finishes; wall and ceiling wall junction cracking; ceiling cracking and cracking in the walls above doors – 80 claims arising from this development - inspection sought in respect of seven quarries owned by the first defendant together with the right to drill; take samples; conduct experiments and make general observations – seeking an order directing the defendant to cooperate with the inspection by identifying the location in its various quarries from which the stone was supplied – seeking orders against the third named defendant requiring them to identify the quarries used and allowing inspection - O. 50, r. 4 of the Rules of the Superior Courts – 31 affidavits filed in relation to the motion -  repeatedly sought to arrange inspection of the defendants’ quarries – application modified -  no longer seeking facilities to drill rock face nor to conduct experiments - “necessity” and “expediency” of inspection - final position adopted by the plaintiffs was that inspection would allow them with certainty establish which of the defendants’ stone products was in the subfloor infill in each house allegedly affected by pyritic heave – first defendants argued that application for inspection is premature, unnecessarily invasive and that the parameters and mode of inspection are not sufficiently clear -  identifying with even greater certainty the precise source of reactive framboidal pyrite in the infill of each affected house - Order 50 does not specify or delimit the time within which an application for inspection can be made – whether inspection can be ordered before pleadings are closed – court held that this would be an unwise constraint on O. 50, r. 4.- rule is flexible enough to deal with any given set of facts presented to a court - not necessary to show exceptional circumstances in order to bring an application for inspection prior to the close of pleadings - Court on an application of this sort must balance the right of the plaintiff to meaningful access to the courts to present his case against the right of the defendant not to have his property unreasonably interfered with - principles relevant to applications for inspection – Court ordered the order the inspection and sampling of the third defendant’s quarry – adjourned the application in respect the first named defendant until the nature of the dispute between the parties is clarified by the filing of the first defendant’s defence -  builders have no records as to whose product was used in any particular house and are therefore hampered in identifying the source of any reactive framboidal pyrite present in the subfloor infill - defendants have had access to the subfloor stone infill of the allegedly affected houses and have had the opportunity to analyse it and compare it to the stone in their quarries - access has allowed the first named defendant to aver that of six samples tested, four did not emanate from their quarries -  supports the builders argument that access to the quarries will allow them in turn to identify the source of any reactive framboidal pyrite found in the subfloor stone infill – equality of arms - least intrusive inspection which will satisfy the builders’ need and entitlement to obtain evidence necessary to permit it to pursue its claim – inspection of first named defendant’s quarries would require interference in working quarries and would potentially require ancillary orders directing disclosure of various matters such as quarrying sites at the relevant times – builders experts can establish the source of the rock in the subfloor of each house by a process analogous to DNA testing – already have access to two of the sources – Court not at this point refusing or rejecting the application for inspection of the first named defendant’s quarries.