Action Alarms Ltd Trading as Action Security Systems v Emmet O'Rafferty and Top Security Ltd

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 779
• Court: High Court
• Docket Number: [2014 No. 3292 P]

Between

Action Alarms Limited Trading as Action Security Systems

Plaintiff

and

Emmet O'Rafferty and Top Security Limited

Defendants

[2021] IEHC 779

[2014 No. 3292 P]

THE HIGH COURT

Breach of contract – Rehearing – Adjournment – Plaintiff objecting to the proposal for a complete re-hearing – Whether the re-hearing should be conducted on the basis of the transcript evidence already heard

Facts: The claim of the plaintiff, Action Alarms Ltd, was for alleged breach of contract in that it was pleaded that the defendants, Mr O’Rafferty and Top Security Ltd, were under contractual obligation to pay commission to the plaintiff in respect of customers who were connected to the defendant’s monitoring system. The action was instituted on 21st March, 2014 and was ultimately set down for trial on 14th May, 2019. The matter came on for hearing before Pilkington J on 19th November, 2019 and after a 7-day hearing, judgment was reserved on 5th December, 2019. Pilkington J became indisposed in Spring, 2021 before she had had an opportunity to finalise the judgment, and in October, 2021, it was decided that the matter should be reassigned to Humphreys J for a fresh hearing. In November, 2021 Humphreys J fixed 11th January, 2022 as the new hearing date, on a provisional basis subject to further submissions of counsel. The plaintiff objected to the proposal for a complete re-hearing of the matter indicating that its “primary position” was that the matter should await Pilkington J being in a position to deliver judgment. The plaintiff’s second proposal was that “the re-hearing should be conducted on the basis of the transcript evidence already heard and no additional oral evidence should be required”.

Held by the High Court (Humphreys J) that awaiting Pilkington J being in a position to deliver judgment was not an appropriate solution because that matter had already been explored, and given the inevitable lead-in time when returning from any period of indisposition, and the need to accommodate an equally inevitable quantity of work-in-progress in such a situation, the overall obligation to provide a speedy determination of the litigation would not be satisfied by that option. Humphreys J held that for all the latter-day deprecation of demeanour as an issue, there is nonetheless something unique and irreplaceable about the value of seeing live witnesses in the box and how they respond both under direct examination and under cross-examination that simply cannot be fully replicated by transcript, even bearing in mind the transcripts can at times be vivid and informative in terms of how they convey the atmosphere of trial. Humphreys J held that the safest and most appropriate course was to maintain the default position of a full rehearing on oral evidence, save to the extent otherwise agreed by the parties. Having been made aware that counsel for the plaintiff had an overlapping commitment on the proposed trial date, Humphreys J held that in all the circumstances, especially where that commitment related to a long case, it would not be appropriate to regard convenience of counsel and the natural desire of the plaintiff for continuity of representation to be a sufficient basis for an adjournment, especially given that the case was approaching its eighth anniversary.

Humphreys J held that the existing default position of a full rehearing on oral evidence would remain in place save to the extent otherwise agreed by the parties. Humphreys J refused the adjournment request and confirmed the provisional hearing date so that the case would be listed for hearing on 11th January, 2021.

Adjournment request refused.

JUDGMENT of Humphreys J. delivered on Tuesday the 21st day of December, 2021

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