Connolly's Red Mills v Torc Grain and Feed Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] IECA 280 |
| Docket Number | Appeal No. 2015/142 |
| Court | Court of Appeal (Ireland) |
| Date | 30 November 2015 |
[2015] IECA 280
Kelly J.
Irvine J.
Hogan J.
Appeal No. 2015/142
THE COURT OF APPEAL
Inordinate delay - Balance of justice - Prejudice - Appellant seeking to dismiss respondent's claim on grounds of inordinate and inexcusable delay - Whether balance of justice favoured the dismissal of the action
Facts: The plaintiff/respondent, William Connolly and Sons Ltd, based in Gorsebridge, Co. Kilkenny, produces, supplies and distributes foodstuffs within the horseracing industry. The defendant/appellant, Torc Grain and Feed Ltd, is an Irish company involved in the importation and sale of bulk cereals and other raw materials required for the manufacture of animal feed and has traded with the plaintiff since 1982. The plaintiff purchased a consignment of 400 tonnes of groundnut from the defendant on foot of an oral agreement made in September, 2002. The plaintiff mixed 29 tonnes of this consignment with other ingredients and sold the finished product to racehorse owners and trainers. Trace elements of morphine were subsequently found in the urine of a number of racehorses that had competed in racing events in October/November, 2002 as a result of which they were disqualified. These horses had been fed with the plaintiff's racehorse feed. As a consequence of these events, the plaintiff rejected the remainder of the consignment maintaining that the groundnut it had purchased from the defendant was not fit for purpose in that it contained trace elements of morphine. The plaintiff saught to recover from the defendant all of the costs that it had and would later incur in dealing with complaints being considered by the Turf Club and the Jockey Club in relation to the contamination. The plaintiff issued plenary summons in September, 2008. In December, 2014, the High Court refused the defendant's application to dismiss the plaintiff's claim, which was sought first, on the ground that the same was bound to fail and secondly by reason of what it maintained was the inordinate and inexcusable delay on the part of the plaintiff in pursuing its claim. The defendant appealed to the Court of Appeal against the High Court judgment, submitting that the delay between the sale of the goods in September, 2002 and the date of the issue of the plenary summons in September, 2008 was inordinate and inexcusable and had not been justified. It was also submitted that the defendant was prejudiced because the plaintiff had failed to preserve for scientific testing a sample of the original consignment which had been used in the preparation of the horse feed in question.
Held by Irvine J that, having applied Rainsford v Limerick Corporation [1995] 2 ILRM 561 and considered the evidence of the parties and the written and oral submissions made in the course of the appeal, the plaintiff was guilty of inordinate and inexcusable delay in the delivery of its statement of claim; by then a period of two years and three months had elapsed since the issue of the plenary summons which itself was not served on the defendant until almost one year later. Considering Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, Irvine J noted factors in the case which when taken together marginally tipped the scales of justice in favour of allowing the action proceed to trial: the defendant acted in a manner entirely inconsistent with the position it had adopted in its defence. Irvine J was not satisfied that the defendant had established any causal connection between the asserted prejudice and the delay in the proceedings; any prejudice arising out of the loss of the sample from the consignment collected by the plaintiff's agent on 22nd October, 2002 had nothing to do with the delay in the prosecution of the action.
Irvine J held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against the judgement and order of the High Court (Moran J.) delivered on the 19th December, 2014, whereby he refused the defendant's application to dismiss the plaintiff's claim, which was sought first, on the ground that the same was bound to fail and secondly by reason of what it maintained was the inordinate and inexcusable delay on the part of the plaintiff in pursuing its claim. This judgment is confined to the latter issue in circumstances where the defendant did not pursue its appeal against the refusal of the High Court judge to grant the first of those reliefs.
Background facts
The plaintiff company, which is based in Gorsebridge in Co Kilkenny produces, supplies and distributes certain foodstuffs within the horseracing industry. The defendant is an Irish company involved in the importation and sale of bulk cereals and other raw materials required for the manufacture of animal feed and has traded with the plaintiff since 1982.
The plaintiff's claim relates to its purchase of a consignment of 400 tonnes of groundnut on foot of an oral agreement made in September, 2002. The consignment was delivered by the defendant to an open warehouse in New Ross on 7th October, 2002, where it was stored. On 22nd October, 2002 some 29 tonnes of this consignment were collected by the plaintiff's transport agent. Shortly thereafter, the plaintiff, for the purposes of manufacturing racehorse feed, mixed this groundnut with other ingredients and sold the finished product to racehorse owners and trainers.
Regrettably, a sample of this 29 tonnes of groundnut which had been retained by the plaintiff's transport agent was misplaced and consequently was never analysed.
Trace elements of morphine were subsequently found in the urine of a number of racehorses that had competed in racing events in October/November, 2002 as a result of which they were disqualified. These horses had been fed with the plaintiff's racehorse feed. As a consequence of these events, the plaintiff rejected the remainder of the consignment maintaining that the groundnut it had purchased from the defendant was not fit for purpose in that it contained trace elements of morphine.
By letter of 17th January, 2003, the plaintiff, through its then solicitors, Mason Hayes and Curran, put the defendant on notice that it would be seeking a full indemnity in respect of any claims made against it by trainers and owners whose horses were then facing or had suffered disqualification as a result of trace elements of morphine having been found in their urine. The letter further advised that the plaintiff would seek to recover from the defendant all of the costs that it had and would later incur in dealing with complaints being considered by the Turf Club and the Jockey Club in relation to the contamination. By letter dated 29th January, 2003 the defendant, while indicating that it would copy the plaintiff's complaint to its insurance company, set out in detail the reasons why it considered that it could have no liability in respect of any trace elements of morphine that may have been found in the feed that had been sold by the plaintiff to its customers.
For the purposes of the appeal the parties helpfully agreed a chronology which details the engagement between the parties from the date of the agreement in September, 2002 to the date of the service by the plaintiff of the notice of trial on 16th April, 2014. I have added some additional detail to this chronology and where I have done so the relevant entries appear in italics.
September, 2002: Oral agreement for supply of 400 tonnes of groundnut to the plaintiff.
7th October, 2002: Consignment of groundnut delivered to warehouse in New Ross.
15th October, 2002: Sample of groundnut sent to laboratory for testing by defendant.
22nd October, 2002: Plaintiff collects 29 tonnes of groundnut from New Ross.
25th October, 2002: Defendant receives results of sample from lab and notifies plaintiff of full quota of Aflatoxin B1.
10th November, 2002: A number of racehorses disqualified due to presence of morphine traces in urine.
November, 2002: Defendant sends further samples to second laboratory in England.
16th December, 2002: Plaintiff takes further samples of groundnut from warehouse in the New Ross. Plaintiff recalls all horse feed with groundnut from customers.
8th January, 2003: Defendant receives lab results from Hall Laboratories; no morphine detected.
15th January, 2003: Defendant facilitates plaintiff by taking further samples of groundnut from warehouse in New Ross.
17th January, 2003: Plaintiff sends first letter of complaint concerning goods to defendant.
27th March, 2003: Plaintiff receives results of tests on third sample from Louisiana and TCD showing traces of morphine.
8th November, 2006: Second letter from plaintiff reiterating its complaints re groundnut contamination.
17th September, 2008: Plenary summons issues.
14th September, 2009: Plenary summons is served on defendant.
November, 2010: Plaintiff serves notice of change of solicitor
7th December, 2010: Statement of claim is delivered.
21st March, 2011: Plaintiff's motion seeking judgment in default of defence
2nd June, 2011: Defendant raises notice seeking particulars.
13th July, 2011: Defendant delivers its defence.
9th September, 2011: Plaintiff replies to defendant's notice for particulars above.
11th November, 2011: Plaintiff furnishes replies to above notice for particulars.
2nd May, 2012: Defendants brings motion to compel plaintiff to furnish proper replies to notice seeking particulars.
9th July, 2012: Order requiring plaintiff to reply to 6 of the outstanding particulars raised.
16th November, 2012: Plaintiff furnishes further replies in compliance with above order.
7th February, 2013: Plaintiff furnishes a further copy of its...
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