Framus Ltd and Others v CRH Plc and Others

JurisdictionIreland
JudgeMr. Justice Edwards,Faherty J.,Binchy J.
Judgment Date10 November 2023
Neutral Citation[2023] IECA 274
CourtCourt of Appeal (Ireland)
Docket NumberRecord No. 616/2014
Framus Limited, Amantiss Enterprises Limited (In Voluntary Liquidation) and Wilbury Limited (In Voluntary Liquidation)
Appellants
and
CRH Plc, Irish Cement Limited, Roadstone Provinces Limited, Roadstone Dublin Limited, Tradburn Limited, Readymix Plc, Kilsaran Concrete Products Limited and CPI Limited
Respondents

[2023] IECA 274

Edwards J.

Faherty J.

Binchy J.

Record No. 616/2014

THE COURT OF APPEAL

UNAPPROVED
FOR ELECTRONIC DELIVERY

JUDGMENT delivered by Mr. Justice Edwards on the 10 th of November 2023 .

Introduction
1

. The primary applications before this Court are four motions brought by the first to fifth named respondents, the sixth named respondent, the seventh named respondent and the eighth named respondent, respectively, seeking to have the appeal of the appellant companies struck out in the interests of justice on the grounds of inordinate and/or inexcusable delay and/or want of prosecution on the part of the appellants; alternatively pursuant to the inherent jurisdiction of the Court for contravention of the principles of basic fairness of procedures required under Bunreacht na hÉireann. The appeal in question, one of the so-called “Article 64 appeals”, arose out of the dismissal by the High Court (Cooke J.) in 2012 of the appellants' proceedings on grounds of inordinate and inexcusable delay. These proceedings were founded upon claims of alleged anti-competitive and cartel activity going back some thirty or so years.

2

. Separate to these motions, which constitute the principal focus of this judgment, also before this Court is an application of preliminary importance brought by a director and creditor of the named appellant companies, a Mr. Seamus Maye, seeking leave from this Court to independently represent the named appellant companies in the proceedings in circumstances where the appellants' former solicitors came off record in June 2021. This preliminary matter was disposed of at a hearing before this Court on the 16 th of December 2021, on which date this Court refused Mr. Maye leave to represent the appellant companies with short reasons provided at the time, and with more detailed reasons to be provided later. It is now proposed, and as part of this judgment dealing primarily with the motions for strike out, to set out the Court's reasons for refusing Mr. Maye's application.

Background
3

. There is a considerable procedural history behind the present applications which is difficult to succinctly describe but which, for the purposes of the present applications, ought to be outlined to some extent if only to, at the very least, frame the context in which the present applications must now be considered.

The Parties
4

. Before embarking on a recounting of this history, however, it would be helpful to outline who the parties to the present proceedings are.

5

. The first named appellant company Framus Limited (i.e. “Framus”) formerly traded as “Dublin Concrete Products Limited” until April 1994 and had, up until it ceased trading, engaged in the importation of cement into Ireland and in the manufacture and supply of certain concrete products, but principally readymix concrete.

6

. The second named appellant company Amantiss Enterprises Limited (i.e. “Amantiss”) has been in voluntary liquidation since the 1 st of April 1994 and was previously engaged, much like the first appellant company, in the importation and sale of cement in Ireland, sourcing most of its material from an undertaking called “Lagan Cement” which sourced that material from Germany.

7

. The third named appellant company Wilbury Limited (i.e. “Wilbury”) has also been in voluntary liquidation since the 1 st of April 1994 and had shared, up until the 25 th of February 2020, the same liquidator as Amantiss. Wilbury was formerly engaged in the business of manufacturing and supplying certain concrete products, in particular readymix concrete and concrete blocks, and formerly traded under the commercial pseudonyms of “Galway Readymix” and “National Concrete”, respectively, until March 1991.

8

. The first named respondent company, CRH plc, is the holding company of a large number of subsidiary companies, which subsidiaries include amongst their number the second to fifth named respondent companies inclusive. For the purposes of this judgment, these five respondents may collectively be referred to as “CRH” or “the CRH respondents”. These companies are engaged in the manufacture and supply of cement and concrete materials and products to the construction sector in Ireland, the wider European Union, and further afield.

9

. The sixth named respondent company, Readymix Plc (i.e. “Readymix”), is engaged in the manufacture and supply of building materials to the construction sector in Ireland including inter alia readymix concrete and mortar, sand, gravel, pipes, and masonry blocks. In 2012, Readymix Ltd, as it then was, was acquired by a large Mexican multinational, CEMEX S.A.B. de C.V., and ceased to be a private limited company.

10

. The seventh named respondent company, Kilsaran Concrete Products Ltd. (i.e. “Kilsaran”) is similarly engaged in the manufacture and supply of building materials including inter alia gravel, aggregates, readymix concrete and concrete products.

11

. Finally, the eighth named respondent company, CPI Ltd. (i.e. “CPI”), also engages in the manufacture and supply of readymix concrete and mortar, aggregates, and concrete blocks.

High Court Proceedings (1996 – 2012)
12

. The procedural pedigree of the present applications can be traced back to the 4 th of December 1996 on which date the appellant companies issued their Plenary Summons, thereby commencing proceedings against the respondents. These proceedings were founded upon certain claims which alleged inter alia that the respondents had infringed certain competition law rules, namely former competition law rules under s. 4 of the Competition Act 1991 / Article 85 of the Treaty establishing the European Economic Community (as amended), and s. 5 of the Competition Act 1991 / Article 86 of the Treaty establishing the European Economic Community (as amended). It was claimed that the respondents colluded together as a cartel to direct and influence commercial activity in the construction sector relating to the importation, manufacture and supply of cement, aggregates, readymix concrete, certain concrete products and speciality concrete products to local markets across Ireland, in particular the markets in the Dublin and Galway regions; and it was further alleged that the respondents abused their dominant position in these markets to the commercial detriment of the appellant companies.

13

. It was specifically pleaded that this cartel activity by the respondents (in particular occurring in the currency of the period 1990 to 1993) adversely affected the appellant companies' businesses to such an extent that they were forced, and indeed their directors Messrs. Seamus Maye and Francis Maye were forced, to enter into certain goodwill and asset purchase agreements in February 1994 with three of the CRH respondents, which such agreements allegedly included non-competition clauses that effectively restrained the appellant companies (and the two aforenamed directors) from engaging in the importation, manufacture and supply of cement / concrete (and those materials' derivative products) for a defined period of ten years. The two aforenamed directors further averred that they were made to verbally undertake to abide by these restrictive covenants for life, a fact which was contested by the respondents.

14

. While the commencement of these proceedings in late 1996 was followed by an initial nine-year course of intermittent activity, in which the parties exchanged inter alia an amended Statement of Claim, Requests for Particulars, Replies to Particulars, Defences, and so forth, the progress of proceedings abruptly, and seemingly inexplicably, stalled after December 2005. For a further approximately six years, no efforts were made by either side to progress the proceedings (save for the furnishing by the appellants of an affidavit of discovery to Readymix on the 29 th of March 2011) until the appellant companies issued a Notice of Intention to Proceed in June 2011, which development subsequently prompted the respondent companies to issue of a series of Notices of Motion in which they applied to the High Court seeking inter alia an order dismissing the proceedings on grounds of inordinate and inexcusable delay.

15

. As is customary in judgments dealing with applications of this variety, at this juncture I now provide the following chronology which illustrates the events marking the progress of proceedings before the High Court up until that court dismissed the appellants' action:

4 th of December 1996

Appellants issue Plenary Summons.

10 th of December 1996 to 15th of January 1997

Respondents enter appearances.

3 rd of February 1998

Delivery of Statement of Claim.

13 th of January 1998 to 29th of June 1998

Respondents' Request for Particulars.

9 th of October 1998

Appellants' motion for judgment in default (against Readymix).

20 th of November 1998

Defence of Readymix.

18 th of December 1998

Appellants' Replies to Particulars to CRH respondents and CPI.

25 th of January 1999

Appellants' Replies to Particulars to Kilsaran.

8 th of June 1999

Appellants' motion for judgment in default (against CPI).

2 nd of July 1999

Defence of CPI.

18 th of August 1999

Affidavit of discovery (Readymix).

23 rd of March 2000

Defence of Kilsaran.

19 th of May 2000

Appellants' motion for judgment in default (against the CRH respondents).

20 th of June 2000

Defence of the CRH respondents.

29 th of June 2000

Appellants' motion for discovery.

...

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