Framus Ltd v CRH Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 19 July 2012
• Neutral Citation: [2012] IEHC 316
• Docket Number: [1996 No. 10658 P.]
• Court: High Court
• Date: 19 July 2012

BETWEEN

FRAMUS LIMITED, AMANTISS ENTERPRISES LIMITED (IN VOLUNTARY LIQUIDATION) AND WILBURY LIMITED (IN VOLUNTARY LIQUIDATION)

PLAINTIFFS

AND

C.R.H. PLC, IRISH CEMENT LIMITED, ROADSTONE PROVINCES LIMITED, ROADSTONE DUBLIN LIMITED, TRADBURN LIMITED, READYMIX PLC, KILSARAN CONCRETE PRODUCTS LIMITED AND C.P.I LIMITED

DEFENDANTS

[2012] IEHC 316

[1996 No. 10658 P.]

THE HIGH COURT COMPETITION

Practice and procedure– Competition law– Delay– Dismissal of proceedings– Cartel– Abuse of dominant position– 20 year lapse– Balance of justice– Justifications for delay– Evidence– Economic assessments– Public interest– Competition Act 1991, as amended by Competition Act 2002-Whether proceedings would be dismissed

Facts: The action was commenced by plenary summons in 1996 and had lain dormant since 2006. Notice of intention to proceed was given in 2011. The defendant sought to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. The three plaintiff companies had claimed inter alia that the operation of a cartel by the defendants forced them out of the market for relevant markets and the defendants had held a dominant position. The Court considered whether the delay was inordinate and inexcusable and whether the balance of justice would allow the case to proceed. The lapse in time between the relevant acts in question and the date of the trial was alleged to be in the range of 20 years. It was alleged that difficulties in proof, ill-health and financial problems operated as justificatory reasons for the delay in pursuing the proceedings until 2005. The Court considered whether realistic economic evaluations could be made in contemporary times in relation to the historical events.

Held by Cooke J. that the defendants’ motion would be allowed and the action dismissed. The delay in prosecuting the case since 1996 and again since 2004 had been manifestly inordinate and not excused. There was obvious and serious prejudice to the defendants which outweighed any detriment caused to the three plaintiff companies by depriving them and their creditors of the trial. The assessment of the balance of justice was not altered by the assertion that there had been acquiescence on the part of the defendants. There was no culpable acquiescence on the part of the defendants. The claims were excessively historic and various aspects would be statute-barred or outside the scope of the statutory prohibitions.

Mr. Justice Cooke

JUDGMENT of Mr. Justice Cooke delivered the 19th day of July 2012

1 This action was commenced by plenary summons on the 1st December, 1996, but by the 15th anniversary of that date it had not come on for trial. In fact it had lain dormant since at least 2006, until on the 1st of June 2011, notice of intention to proceed was given under O. 122 of the Rules of the Superior Courts. This initiative has been promptly responded to by the three motions now before the Court to have the proceedings dismissed upon grounds of inordinate and inexcusable delay.

2 As explained in greater detail below there are, in effect, several limbs to the claims made by the plaintiffs in the proceedings. They claim that the three plaintiff companies were forced out of business between 1993 and 1994 because of the operation of a cartel by the defendants in the market for the relevant products. Secondly, they claim that certain defendants held a dominant position in the markets in question and abused that dominance by conduct which forced the plaintiff companies out of business. Thirdly, the plaintiffs seek to recover damages for unspecified losses which the plaintiffs claim to have sustained as a result of the alleged infringements of ss. 4 and 5 of the Competition Act 1991, (now the Act of 2002) together with what was then Articles 85 and 86 of the EC Treaty. A claim is also made in respect of restrictive covenants contained in a series of agreements entered into on 28th February, 1994 between the three plaintiff companies and the second, third and fifth named-named defendants. A claim of conspiracy is also pleaded.

3 The first named plaintiff ("Framus") was previously called "Dublin Concrete Products Limited" but changed its name when it ceased trading in 1993. The second named plaintiff ("Amantiss") was placed in voluntary liquidation by its creditors on 1st April, 1994 as was the third named plaintiff ("Wilbury"). The Court has been informed that the liquidator of those two companies authorised the commencement of the proceedings in 1996 and that he "has been kept informed" but the Court has no evidence before it of that authorisation on the part of the liquidator nor any information as to the basis upon which the liquidator may have given that authority or as to whether the liquidator has now authorised the re-instigation of proceedings in June 2011.

4 The test or principles to be applied by the Court in ruling upon an application to dismiss an action for want of prosecution are well settled and have not been in dispute between the parties on this hearing although, understandably, the opposing sides have sought to place greater emphasis or weight on different aspects of the principles when applied to the facts of the case. The principles were stated by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and, so far as pertinent to the issues raised here, can be paraphrased as follows:-

• (1) The Court has an inherent jurisdiction to dismiss a claim when the interests of justice so require;

• (2) The party seeking to have a claim dismissed on grounds of delay must establish that the delay has been inordinate and inexcusable;

• (3) Even where the delay is both inordinate and inexcusable, the Court must exercise a judgment as to whether, in its discretion, on the facts, the balance of justice is in favour of or against the case proceeding further;

• (4) When weighing the balance of justice between the parties, the Court has regard to, inter alia, the following considerations:-

  • (a) the implied constitutional principles of basic fairness and procedures;

  • (b) whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and make it just to strike it out;

  • (c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at;

  • (d) whether the delay or conduct of the defendant amounted to acquiescence in the plaintiffs delay;

  • (e) whether the delay had given rise to a substantial risk that it would not be possible to have a fair trial or was likely to cause or had caused serious prejudice to the defendant;

  • (f) the fact that the prejudice to the defendant might arise in many ways and be other than that merely caused by the delay including damage to a defendant's reputation and business.

5 In the course of argument counsel for the parties also opened to the Court many other authorities relevant in different ways to the considerations included above. It is not necessary in the particular circumstances of the present case to recite that case law in detail, but sufficient to record that the Court has taken account particularly of the manner in which the principles have been approached and applied in the following cases: Dowd v Kerry County Council [1970] IR 27; Comcast International Holdings Inc and others v Minister for Public Enterprise and others [2007] IEHC 297; Rogers v Michelin Tyre plc and another [2005] IEHC 294; Manning v Benson and Hedges Ltd [2004} IEHC 316; Birkett v James [1978] AC 297; Sheehan v Amond [1982] IR 235; Desmond v MGN Ltd [2008] IESC 56; Gilroy v Flynn [2004] IESC 98; Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510; Stephens v Flynn Ltd [2005] IEHC 148; Carroll Shipping Ltd & Carroll v Matthews Mulcahy & Sutherland Ltd 1981 No. 2080P; Rodenhuis & Verloop v. HAS [2010] IEHC 465; O'Connor v John Player 1997 15903P. (The Court notes that since the hearing of these motions the High Court judgment in Comcast has been successfully appealed but the reasons for allowing the appeal against the dismissal of that action have not become available at the date of this judgment.)

6 Before considering the application of these principles to the circumstances of the parties in this case it is necessary to indicate briefly what the businesses of these undertakings were alleged to be at the relevant time and then to describe the products and markets said to be involved in the infringement claims and to outline further the allegations pleaded in support of those claims.

7 The first-named plaintiff was, prior to ceasing to trade, engaged under its former name of Dublin Concrete Products Ltd, in the business of importing cement into the State and in the manufacture and supply of concrete products including particularly, readymix concrete. Prior to going into liquidation on 1st April 1994, the second named plaintiff had also been engaged in the importation and sale of cement in the State mostly supplied to it by an undertaking called Lagan Cement which sourced the material in Germany. The third named plaintiff was also in the business of manufacture and supply of concrete products including particularly readymix concrete and concrete blocks, trading under the names "Galway Readymix" and "National Concrete".

8 The first named defendant ("CRH") is a public company incorporated in the State and the holding company of a large number of subsidiary companies which include the second, third, fourth and fifth named defendants. (These defendants are collectively referred to in this judgment as the "CRH defendants".) The group is engaged in carrying on in the State, elsewhere in the European Union and internationally a wide range of businesses in the manufacture and supply of materials and products to the...