Anglo Irish Beef Processors Ltd v Montgomery

JurisdictionIreland
CourtSupreme Court
JudgeKeane C.J.,FENNELLY J.
Judgment Date31 July 2002
Neutral Citation[2002] IESC 60
Docket Number[S.C. Nos. 344 and 345 of
Date31 July 2002

[2002] IESC 60

THE SUPREME COURT

Keane C.J.

Murphy J.

Fennelly J.

344/01
345/01
ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v. MONTGOMERY & ORS

BETWEEN

ANGLO IRISH BEEF PROCESSORS LIMITED AND DJS MEATSLIMITED
PLAINTIFF/RESPONDENTS

AND

DEREK MONTGOMERY, SEAMUS HAND, NATIONAL COLD STORAGELIMITED, NORDIC COLD STORAGE LIMITED
DEFENDANTS/APPELLANTS

AND

STOKES KENNEDY CROWLEY AND COMPANY (AFIRM)
THIRD PARTY

Synopsis:

PRACTICE AND PROCEDURE

Want of prosecution

Dismissal of proceedings - Appeal - Whether delay inordinate and inexcusable - Whether defendant prejudiced by delay - Whether explanation given for delay - Whether balance of justice in favour of or against permitting action to proceed (334 & 345/2001 - Supreme Court - 31/7/2002)

AIBP v Montgomery - [2002] 3 IR 510

Facts: the High Court refused the appellants' application to have the respondents' claim dismissed for want of prosecution on the ground that the balance of justice was in favour of allowing the action to proceed. The appellants appealed that order. There was no cross-appeal by the respondents in respect of the finding by the High Court that there was inordinate and inexcusable delay in their prosecution of the claim.

Held (Keane CJ and Fennelly J; Murphy J concurring with Keane CJ) in allowing the appeal that no explanation had been given by the respondents for the delay in the prosecution of their claim. The appellants had not acquiesced in the inaction of the respondent. The appellants would be deprived of a witness of critical importance and the memories of other witnesses would be dimmed as a result of the inordinate and inexcusable delay on the part of the respondents in prosecuting the claim. Accordingly, the delay gave rise to a substantial risk that it would not be possible to have a fair trial and had caused serious prejudice to the appellants. Accordingly, the conclusion of the High Court that the balance of justice required the action to proceed was erroneous in law.

1

31st day, of July 2002 , byKeane C.J.

Keane C.J.
2

This is an appeal from a judgment and order of the High Court (Kelly J) in which he refused two applications on behalf of the first and second named defendants and third and fourth named defendants respectively forordersdismissing the plaintiff's claim on the ground of inordinate and inexcusable delay in the prosecution of the claim against all fourdefendants.

3

The factual background to the case is as follows. On the 14th June 1989, the first named plaintiffs (hereafter "Anglo Irish") agreed to purchased from the four defendants their share holding in the second named plaintiff (hereafter "DIS") for the sum of £1.Clause 8 of the hand-written agreement provided that

"An audit of DJS shall be carried out by N. Cooke of SKC as at the 13th June 1989. The balance sheet shall be prepared on the same basis as the BS in Schedule 2. If the net assets/liabilities which isIR£2,040,468 in the pro forma in Schedule 2 as at the 13/06/89 exceeds IR£2,540,468 then the excess shall be paid to DJS by the shareholders within 10 days of being called upon to do so. The liability to do this shall be joint and several."

4

Anglo Irish maintain that the balance sheet as ultimately prepared showed net liabilities which were £1,584,857 in excess of the agreed amount of £2,540,468. The defendants by that clause 8 does not, in its terms, reflect the agreement of the parties and that the indemnity intended to be provided for by clause 8 was confined to certain trading losses.

5

The proceedings began by way of summary summons on the 28th November 1989. The defendants having resisted a motion for final judgment on the ground that the terms of clause 8 did not represent the actual agreement entered into between the parties, the matter was sent for plenary hearing. In an amended statement of claim delivered on the 10th March, 1993, Anglo Irish advanced an additional claim, namely that they had also suffered loss and damage arising from alleged breach of warranties on the part of the defendants. This related to export refund provisions and PAYE provisions. By a letter of 15th March 2001, the defendants were informed that by virtue of a settlement entered into by DJS with the Department of Agriculture in November 1995, the claim in respect of PAYE provisions was being abandoned and that the claim under the heading of Export Refund Provisions had been reduced to the sum of£666,298,39.

6

The defence delivered on behalf of the defendants in the agreement included a counterclaim for rectification of the written agreement of 14th June 1989. The defendants also issued and served with the leave of the court third party proceedings against the third party (hereafter "SKC") claiming damages for negligence, breach of contract and breach of trust while acting as their accountants and financial advisors in relation to the disposal of their share holding in DJS. The pleadings in the main action were not closed until the 7thApril 1994. Thereafter, Anglo Irish took no further steps until the 2nd April 1996 when a notice of intention to proceed was served. Again, however, the action remained dormant until a further notice of intention to proceed was served on 2nd October 1998. Anglo Irish again took no further steps until the 13th December 2000 when a third notice of intention to proceed was served. On the 30th March 2001 Anglo Irish served a notice of motion seeking leave to amend their reply in defence to the counterclaim. Shortly thereafter, the present motions to dismiss the plaintiffs claim were served on behalf of the defendants.

7

In an extempore judgment, Kelly J refused to grant the reliefs sought. While he was satisfied that the delay was indeed inordinate and inexcusable, he was also of the view that, applying the principles laid down by this court in Primor Ple -v- Stakes KennedyCrowley [1996] 2IR 459, the balance of justice was in favour of allowing the action to proceed. From that judgment and order, the defendants have now appealed to this court. There has been no cross appeal by Anglo Irish in respect of the finding by the learned High Court judge that there was inordinate and inexcusable delay in the prosecution of the claim.

8

It is not in dispute that the negotiations which led to the agreement of the 14th June 1989 were conducted on behalf of the defendants with the plaintiffs by Declan Collins of SKC. It is also not in dispute that the defendants wereassisted by Brendan Devine, formerly a partner in Ernst and Whinny, the auditors to the defendants and to which firm Mr. Devine was a consultant. While Mr. Devine did not have any direct dealings with the plaintiffs, he took part in a number of discussions between the defendants on the one hand and Mr. Collins on the other hand, including one that took place on the afternoon of the 13th June 1989, i.e., the day before the signing of the agreement.

9

In an affidavit sworn in these proceedings, Mr. Thomas Butler, a director of the third and fourth defendants, deposed that during the course of that discussion Mr. Collins made it clear that the indemnity to be provided by clause 8 related to trading losses to be computed by reference to accounts prepared on the same basis as previous years, that he had examined the management accounts for DJS and that the trading losses disclosed were in the order of £400,000. Mr. Butler deposed that it was on the basis of this representation that the selling shareholders felt it acceptable to underwrite trading losses in excess of £500,000.

10

Mr. Devine died on the 10th November 2000. While Mr. Butler accepted that there were other persons present, including the first and second named defendants and himself, he said that the significance of Mr. Devine's evidence would have been that, like Mr. Collins, he was a chartered accountant and,accordingly, his evidence as to what was said by Mr. Collins on the issue of trading losses and in relation to the accounts of DJS would have been particularly important. Those factual averments, although not the legal significance to be attached to them, were not contested on behalf of Anglo Irish.

11

In the course of his extempore judgment, the learned High Court judge concluded that the crucial factor, so far as the role of Mr. Devine was concerned, was that he had no face to face dealings with Anglo Irish or their representatives those negotiations were solely carried on by Mr. Collins who, although retired, would be available as a witness. He accordingly concluded that, on balance, the absence of Mr. Devine would not imperil a fair trial. At that stage of his judgment, the learned trial judge does not appear to have adverted to the fact that, in the light of the averments of Mr. Butler, Mr. Devine's evidence would have been of considerable significance in relation to the claim against the third party.

12

It is acknowledged in this case that the applicable legal principles are as set out in the judgment of Hamilton CJ in Primor Plc -v- Stokes Kennedy Crowley [1996] 2IR 463 at p. 475 as follows:-

13

a "(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

14

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on a ground of delay in the prosecution thereof, that the delay was inordinate andinexcusable;

15

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

16

(e) in considering this latter obligation the court is entitled to take into consideration and have regard to

17

i "(i) the implied constitutional principles of basic fairness of procedures,

18

(ii) whether the delay and consequent...

To continue reading

Request your trial
89 cases
  • Keogh v Wyeth Laboratories Inc.
    • Ireland
    • Supreme Court
    • 12 July 2005
    ...plaintiff could be blamed for delay - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR510 and O'Domhnaill v Merrick [1984] IR151 followed; Rainsford v Limerick Corporation [1995] 2 ILRM 561 distinguished - Defendants' appeal all......
  • Farrell v Arborlane Ltd and Others
    • Ireland
    • High Court
    • 9 July 2015
    ...IESC 27: Collins, para.33. [5]Primor; Collins, para.32. [6]Primor, Collins, para.32; Anglo Irish Beef Processors Limited v. Montgomery [2002] 3 I.R. 510; Granahan v. Mercury Engineering [2015] IECCA 58, para.24. [7] Collins, para.37; Cassidy v. Provincialate [2015] IECCA 74, paras.35-36. [8......
  • Wolfe v Wolfe
    • Ireland
    • High Court
    • 15 March 2006
    ...ACT 1963 S205 PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459 ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD MONTGOMERY & ORS 2002 3 IR 510 GILROY v FLYNN 2005 1 ILRM 290 STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148 ROGERS v MICHELIN TYRE PLC & MICHELIN......
  • Quintiliani (plaintiff) v Iralco Ltd
    • Ireland
    • High Court
    • 17 January 2007
    ......Stokes Kennedy Crowley[1996] 2 I.R. 459 and Anglo Irish Beef Processors Limited v. Montgomery [2002] 3 I.R. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT