Brian Johnson trading as Ace Engineering v Calor Teoranta trading as Calor Gas
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 03 July 2018 |
| Neutral Citation | [2018] IEHC 409 |
| Court | High Court |
| Docket Number | [2010/2205 P.] |
| Date | 03 July 2018 |
[2018] IEHC 409
THE HIGH COURT
Binchy J.
[2010/2205 P.]
Breach of contract – Damages – Delay – Defendant seeking an order dismissing the plaintiff's claim on the grounds of want of prosecution and/or inordinate and inexcusable delay – Whether the defendant was likely to suffer prejudice due to the potential unavailability of witnesses
Facts: The plaintiff, Mr Johnson, claimed damages for breach of contract arising out of the termination, in 2009, of a contract for services between the plaintiff and the defendant, Calor Teoranta. That contract had its origin in an oral agreement originally made in 1974, between the plaintiff's predecessor in title, Mr Duncan, and the defendant. The plaintiff claimed that he acquired the business of Mr Duncan, including the benefit of the contract with the defendant, pursuant to an agreement made on 5th March, 2007 and that the contract with the defendant continued uninterrupted and unchanged until June, 2009, when it was terminated by the defendant. Arising out of that termination, the plaintiff issued proceedings on 8th March, 2010 and matters progressed promptly until 29th June, 2010. Thereafter there was considerable delay in the progression of the proceedings, and arising out of that delay the defendant issued a notice of motion dated 1st August, 2017 whereby it sought an order dismissing the plaintiff's claim on the grounds of want of prosecution and/or inordinate and inexcusable delay.
Held by the High Court (Binchy J) that the defendant was unlikely to suffer prejudice, even moderate prejudice, due to the potential unavailability of witnesses. As to the question of general prejudice, Binchy J shared the views expressed by Irvine J in Granahan t/a CG Roofing and General Builders v Mercury Engineering [2015] IECA 58.
Binchy J held that the balance of justice was best served in allowing the claim to proceed.
Motion refused.
In these proceedings the plaintiff claims damages for breach of contract arising out of the termination, in 2009, of a contract for services between the plaintiff and the defendant. That contract for services has its origin in an oral agreement originally made in 1974, between the plaintiff's predecessor in title, a Mr. Duncan and the defendant. The plaintiff claims that he acquired the business of Mr. Duncan, including the benefit of a contract with the defendant, pursuant to an agreement made on 5th March, 2007 and that the contract with the defendant continued uninterrupted and unchanged until June, 2009, when it was terminated by the defendant.
Arising out of that termination, the plaintiff issued these proceedings on 8th March, 2010 and matters progressed very promptly up until 29th June, 2010. A statement of claim was delivered on 4th March, 2010, a defence was served on 24th March, 2010, the defendant served a notice for particulars on 29th March, 2010 and replies to particulars were delivered on 29th June, 2010. Thereafter however there has been some considerable delay in the progression of the proceedings, and arising out of that delay the defendant issued a notice of motion dated 1st August, 2017 whereby it seeks an order dismissing the plaintiff's claim on the grounds of want of prosecution and/or inordinate and inexcusable delay. It is that motion with which this judgment is concerned.
The motion is grounded upon the affidavit of a Mr. Sean McCourt, Operations and HR Director of the defendant. In his affidavit, he sets out the chronology of the pleadings as described above and thereafter. Nothing occurred after 29th June, 2010 until the defendant served a notice seeking further and better particulars on 28th January, 2014. On the same date, the defendant served a draft amended defence and sought consent to the proposed amendments contained therein. No response issued either to the notice of further and better particulars or to the request to consent to the filing of the amended defence until 7th June, 2017, when the plaintiff's solicitors served a notice of intention to proceed. In the same letter they said that they would be furnishing replies to the notice for further and better particulars upon the expiration of the notice of intention to proceed. The replies to the notice for further and better particulars were not in fact delivered until 2nd November, 2017.
In his grounding affidavit, Mr. McCourt avers that given the nature of the factual disputes between the parties, the defendant will be required to rely on oral evidence of those employees who entered into the alleged contract with the plaintiff's predecessor in title in or around 1974. He says that he believes the 1974 agreement was not recorded in writing. He also avers that evidence will be required in relation to the alleged purchase of Mr. Duncan's business by the plaintiff in March, 2007, in respect of which the defendant pleads that its consent was neither sought nor granted. So therefore there will be a further factual dispute, requiring oral evidence, as to whether or not such consent was sought and/or obtained in March, 2007, more than ten years prior to the issue of the defendant's motion to dismiss the proceedings. In addition, he says, further oral evidence is likely to be required from persons who were employed with the defendant in or about June, 2009, at the time of the alleged breach of contract. In his grounding affidavit, Mr. McCourt does not identify those employees, but in response to the replying affidavit of the plaintiff he identifies two witnesses who would be relevant, and each of whom has retired, one in 2011 and the other in 2017. Aside from the possible difficulties of locating and calling in evidence witnesses who are no longer employees, he avers that such witnesses are likely to have difficulty remembering factual issues from eight and more years ago.
While the chronology of pleadings might suggest that nothing was being done between 2010 and 2014, the affidavits indicate that this is not so because Mr. McCourt refers to the swearing of an affidavit of discovery by the plaintiff in September, 2013. He describes this as the last formal step taken by the plaintiff in the proceedings prior to the filing of his notice of intention to proceed in June, 2017, but he acknowledges that there was some correspondence following upon the affidavit of discovery, in early 2014. Taking that as the last date of activity in the matter by the plaintiff until the service of the notice of intention to proceed in June, 2017, Mr. McCourt says that the plaintiff delayed between early 2014 and June, 2017, a period of some three and a half years, without giving any explanation for the delay in the intervening period.
Mr. McCourt expresses particular concern that in the letter serving the notice of intention to proceed on 7th June, 2017, the solicitors for the plaintiff specifically refuted any suggestion, as made in the amended defence of the defendant, that the defendant was unaware that the plaintiff had taken over the business of Mr. Duncan. Mr. McCourt says that this allegation was made for the first time in the letter of June, 2017, and not in the pleadings served before that time, and will necessitate the defendant seeking further evidence about matters going back over ten years.
In his replying affidavit, Mr. Johnson avers that both sides have exchanged substantial discovery in relation to the matter. This was not contradicted by the defendant. Mr. Johnson acknowledges that there has been a delay since 2014 when the notice for further and better particulars was served by the defendant. He says that that notice required information including a breakdown of all losses claimed by the plaintiff in the proceedings, and that his solicitors had to engage with his accountant in order to address that notice, and the collation of the required information took 'a period of time'. Mr. Johnson also avers that in September, 2015, his daughter died in very tragic circumstances and that an inquest into her death was held in October, 2017, and has been further adjourned.
Mr. Johnson denies that the defendant will suffer any prejudice as a result of the delay that has occurred. Insofar as the agreement between the defendant and plaintiff's predecessor in title was reached back in 1974, Mr. Johnson avers that the employee of the defendant with whom Mr. Duncan originally reached agreement in relation to the provision of services by the plaintiff in 1974, a Mr. David Sheridan, died many years ago – at least fifteen years ago and in any case prior to the issue of these proceedings. It is submitted that that cannot give rise to any prejudice for which the plaintiff is responsible for the purposes of this application. Mr. Johnson also points out that in his grounding affidavit, Mr. McCourt does not name any witnesses which he says will be required, but will no longer be available. (As mentioned above, however, Mr. McCourt does identify specific witnesses who have retired, in his affidavit in reply to Mr. Johnson). Mr. Johnson says that if this application is refused, the proceedings are now ready and may be set down for trial. In his replying affidavit, Mr. McCourt disputes that the matter is ready for trial but does not explain why he considers this to be the case.
The principles governing applications such as this are well established and do not need rehearsal here, other than to point out that they are the principles summarised by Hamilton C.J. in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459. Since Primor it is fair to say that the courts have shown increasing reluctance to tolerate delays which might have been tolerated in the past and have emphasised the need to ensure that litigation is...
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