Boliden Tara Mines Ltd v Irish Pensions Trust Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 30 October 2014
• Neutral Citation: [2014] IEHC 488
• Court: High Court
• Date: 30 October 2014

Boliden Tara Mines Ltd v Irish Pensions Trust Ltd

BETWEEN

BOLIDEN TARA MINES LIMITED

PLAINTIFF

AND

IRISH PENSIONS TRUST LIMITED

DEFENDANT

[2014] IEHC 488

[No. 362 P/2006]

THE HIGH COURT

Appeal - Extension of time - Delivery of a statement of claim-Mining company-Employee pension scheme - Trust - Rectification proceedings - Alleged failure to draft a deed of amendment to the pension trust deed in accordance with the instructions and intentions of the plaintiff - Inordinate and inexcusable delay

Facts Damages were sought for negligence, breach of contract and breach of duty for the alleged failure to draft a deed of amendment to the pension trust deed in accordance with the instructions and intentions of the plaintiff, Boliden Tara Mines Limited. The special damages were quantified in the sum of €2,300,000, calculated at €1,650,000 being the costs of bringing the rectification proceedings and of allied proceedings seeking directions as to payments to certain employees, together with the sum of €650,000 paid by way of back entitlements and interim payments to said employees. The plaintiff said it was necessary to await the conclusion of the rectification proceedings in both the High Court and Supreme Court, as without the clarification ultimately afforded by those proceedings; it would not have been possible to quantify its losses. The Supreme Court delivered its judgment ordering rectification on 21st December 2010 and it was not until 6th November 2012 that a notice of intention to proceed was served on the defendant”s solicitor in accordance with the Rules of the Superior Courts. The almost two year gap between December 2010 and November 2012 was explained by the plaintiff as arising due to commercial negotiations with the administrators of the pension plan, albeit these discussions were not had with the defendant. The solicitors of the defendant acknowledged no steps had been taken in the proceedings since January 2006, a period at that stage of more than five years. A letter pointed out that no explanation had been furnished as to why the plaintiff was seeking to restart the proceedings after such a lengthy period and that the defendant was “considering its options, which included applying to strike out the proceedings for want of prosecution”. In-house counsel for the defendant described the period of delay as inexcusable and indicated there was a clear onus on the plaintiff to move with reasonable expedition following the Supreme Court proceedings.

Held The judge applied the principles established in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. He said the question of whether the time for the delivery of a statement of claim should be extended or whether proceedings should be dismissed for want of prosecution was never a matter that could be answered solely by a routine application of the principles or weighing of individual factors. He explained the courts look to the behaviour of both parties; the actual and potential facts of the delay and the specific prejudice and general prejudice that would be suffered or was likely to be suffered: “The courts do not take the view that the blame can easily always be laid at the door of one party only, the party who has delayed, hence the court will look to the entire matrix of the facts”. The judge said the delay by the plaintiff was inordinate. He explained the delay was excusable up to such time when the Supreme Court concluded the rectification proceedings, but thereafter it was not. He found no individual prejudice and ruled, on the evidence, that there was no prejudice sufficient to come to a conclusion that the defendant could not be afforded a fair trial. The judge said the plaintiffs delay was on the extreme end of the scale; he explained the defendant behaved in the most appropriate manner, but said the fact remained that it did not bring a motion to strike out the proceedings at the appropriate time, namely after the service of the notice of intention to proceed or after 5th January 2013, the date of the deadline set in the correspondence.

-Subsequently, the judge weighing the factors held the plaintiff should be given a further short period of time to serve the statement of claim. However, in doing so he would facilitate any application brought by the defendant regarding the case management of the proceedings with a view to bringing them to an end.

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1 1. This is an appeal by the plaintiff from a decision of the Master of the High Court made on 5 ^th February, 2014, wherein he refused the application by the plaintiff for the extension of time for the delivery of a statement of claim in the within proceedings, and by which he dismissed the claim and awarded the costs of the proceedings and of the motion to the defendant.

2 2. The plaintiff is a company carrying on a mining business in Co. Meath. These proceedings relate to an employee pension scheme which has been in place for a long number of years and is operated through a trust. The defendant was at all material times the sole trustee of the pension trust scheme.

3 3. The present proceedings commenced by plenary summons issued on 30 ^th January, 2006 and served on 24 ^th January, 2007. The proceedings arose in the context of other, now concluded, proceedings had between the plaintiff and the defendant which sought rectification of the then pension trust deed and rules, and in particular a deed of amendment to the trust deed executed under seal on 19 ^th October, 1999.

4 4. Rectification proceedings were commenced by the plaintiff against the defendant and a representative defendant seeking rectification of the deed of amendment and these proceedings were commenced in the Commercial Court on 6 ^th day of April, 2006. The Supreme Court finally determined the appeal in those proceedings on 21 ^st December, 2010, as a result whereof rectification of the deed of amendment was directed.

5 5. These proceedings seek damages from the defendant for negligence, breach of contract and breach of duty by reason of what is alleged to be the failure to draft a deed of amendment to the pension trust deed in accordance with the instructions and intentions of the plaintiff. The special damages are quantified in the sum of €2,300,000, calculated at €1,650,000 being the costs of bringing the rectification proceedings, and of allied proceedings seeking directions as to payments to certain employees, together with the sum of €650,000 paid by way of back entitlements and interim payments to these employees.

The timeframe in these proceedings

6 6. The plenary summons issued in January 2006 and it is clear from the affidavit grounding this application sworn by Connor Quigley on 26 ^th July, 2013, that the proceedings were issued to protect the position of the plaintiff having regard to the Statute of Limitations. The plenary summons was not served until almost a year after issue, and it is not argued that the defendant was aware of the existence of the proceedings until they were served in January 2007.

7 7. It is further not argued that there was an agreement reached between the parties to these proceedings that the determination and prosecution of these proceedings would await the outcome of the rectification proceedings. It is, however, argued by the plaintiff that it was necessary to await the conclusion of the rectification proceedings in both the High Court and Supreme Court, as without the clarification ultimately afforded by those proceedings, it would not have been possible for the plaintiff to quantify its losses. It is further argued that the High Court and Supreme Court proceedings were a mitigation by the plaintiff of the loss and damages which it now seeks, and had the rectification proceedings not been brought, it seems likely that the special damages element would have been significantly larger, as the effect of the rectification was to reduce the pension obligations of the plaintiff to some of its employees.

8 8. It is clear that a conversation was had at the time of the service of the plenary summons in January 2007, between the solicitors acting for each party in the course of which the solicitors for the defendant, Messrs. A&L Goodbody & Co., were made aware that the issue of these proceedings was a form of "protective measure" and where it was said that the plaintiff did not intend to pursue these proceedings against the defendant "for the time being". No agreement was reached that the proceeding could be held in abeyance until the rectification proceedings had been brought to their conclusion, but the defendant was aware of the proceedings, and that they had been issued, initially at least, as a protective measure.

9 9. The Supreme Court...