ASM Alternative Feeds Ltd v The Minister for Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IEHC 715
• Court: High Court
• Docket Number: [2012 4625 P]

Between

ASM Alternative Feeds Limited

Plaintiff

and

The Minister for Agriculture, Food and The Marine, The State Laboratory, Minister for Finance, Minister for Public Expenditure and Reform, Ireland and The Attorney General

Defendants

[2022] IEHC 715

[2012 4625 P]

THE HIGH COURT

Inordinate and inexcusable delay – Want of prosecution – Balance of justice – Defendants seeking to dismiss the plaintiff’s claim on the grounds of inexcusable/inordinate delay in the prosecution of the proceedings – Whether the plaintiff’s delay was both inordinate and inexcusable

Facts: The plaintiff, ASM Alternative Feeds Ltd, was incorporated in 2008 and was engaged in the business of the production of animal feeds. On or about 15 June 2011, agents of the defendants, the Minister for Agriculture, Food and the Marine, the State Laboratory, the Minister for Finance, the Minister for Public Expenditure and Reform, Ireland and the Attorney General, attended at the plaintiff’s premises for the purposes of sampling produce. Following an analysis of the sample, the defendants’ servants or agents detected a level of Dioxin. As a result of this, on 25 July 2011 the defendants temporarily suspended the plaintiff’s registration as a feed business operator. On or about 3 August 2011, the defendants accepted that there was an error in the test results which incorrectly attributed the positive results of a third party to the plaintiff. It appeared that the temporary suspension was not immediately lifted. The plaintiff initiated judicial review proceedings which were not defended by the defendants. The plaintiff’s registration was restored on 15 December 2011. Thus, there appeared to have been a period between 25 July 2011 and 15 December 2011 when the plaintiff’s registration as a feed business operator was wrongly suspended. The defendants applied to the High Court to dismiss the plaintiff’s claim on the grounds of inexcusable/inordinate delay in the prosecution of the proceedings and/or an order pursuant to O. 122 r. 11 RSC dismissing the plaintiff’s claim for want of prosecution as there had been no proceedings for more than two years.

Held by Meenan J that the plaintiff’s delay was both inordinate and inexcusable. He noted that if the action were allowed to proceed, a trial date before 2024 or early 2025 would be highly unlikely. He held that this lapse of time between the events complained of in 2011 and the date of a possible trial in 2024/2025 clearly gave rise to considerable prejudice to the defendants in defending the proceedings. He did not accept the submission of the plaintiff that this was a “documents” case. He held that it was clear that evidence of the events between July and December 2011 would be required. He held that if this were a “documents” case, it makes the failure of the plaintiff to prosecute the proceedings all the more inexcusable. He noted that the defendants had not contributed to the delay.

Meenan J held that the defendants were entitled to an order striking out the proceedings. His provisional view was that as the defendants had been entirely successful they were entitled to an order for costs of the motion and the proceedings.

Application granted.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 20 ^th day of December 2022

Background

1 . This is an application brought by the defendants to dismiss the plaintiff's claim herein on the grounds of inexcusable/inordinate delay in the prosecution of the proceedings and/or an order pursuant to O.122 r.11 RSC dismissing the plaintiff's claim for want of prosecution as there has been no proceedings for more than two years.

2 . The plaintiff was incorporated in 2008 and was engaged in the business of the production of animal feeds. On or about 15 June 2011, the defendant's agents attended at the plaintiff's premises for the purposes of sampling produce. Following an analysis of the sample, the defendant's servants or agents detected a level of Dioxin. As a result of this, on 25 July 2011 the defendants temporarily suspended the plaintiff's registration as a feed business operator.

3 . On or about 3 August 2011, the defendants accepted that there was an error in the test results which incorrectly attributed the positive results of a third party to the plaintiff. It appeared that the temporary suspension was not immediately lifted.

4 . The plaintiff initiated judicial review proceedings which were not defended by the defendants. The plaintiff's registration was restored on 15 December 2011. Thus, there appears to have been a period between 25 July 2011 and 15 December 2011 when the plaintiff's registration as a feed business operator was wrongly suspended.

5 . It should be noted at this stage that the previous paragraphs set out what appears to be the basis for the plaintiff's claim herein. Unfortunately, it cannot be said definitively what the plaintiff's claim is, as no statement of claim has been delivered.

Chronology of proceedings

6 . The following are the various steps taken in the prosecution of these proceedings:

• (a) Issue of plenary summons – 10 May 2012

• (b) Service of plenary summons – 16 May 2012

• (c) Appearance entered on behalf of the defendants – 14 June 2012

• (d) Notice of intention to proceed served on defendants and plaintiff letter dating a statement of claim had been drafted – 22 August 2014

• (e) Plaintiff seeks voluntary discovery – 14 July 2015

• (f) Second notice of intention to proceed – 16 January 2019

• (g) Third notice of intention to proceed – 28 February 2020

• (h)...