Goode Concrete v CRH Plc and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 10 October 2013
• Neutral Citation: [2013] IESC 39
• Court: Supreme Court
• Date: 10 October 2013

Goode Concrete v CRH plc & Ors

Between/

Goode Concrete

Appellant/Plaintiff

and

CRH plc, Roadstone Wood Limited, and Kilsaran Concrete

Defendant/Respondents

[2013] IESC 39

Denham C.J.

Clarke J.

MacMenamin J.

[Appeal Nos: 579, 580, 581/2012]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Time limits

Appeal - Supreme Court - Time limits - Extension of time - Test to be applied - Objective bias - Whether unusual circumstances giving rise to application for extension of time to appeal - Whether party becoming aware of facts giving rise to appeal outside of time to appeal - Whether reasonable to expect party to engage in further inquiry following High Court hearing - Whether arguable grounds of appeal - Whether applicant placed upon further inquiry following disclsoure by trial judge of financial interest in party - Whether evolution in jurisprudence subsequent to hearing giving rise to entitlement to extension of time to appeal - Framus Ltd v CRH plc [2013] IESC 23, (Unrep, SC, 14/5/2013), Goode Concrete v Cement Roadstone Holdings plc [2011] IEHC 15, (Unrep, Cooke J, 20/1/2011), Goode Concrete v CRH plc [2012] IEHC 116, (Unrep, Cooke J, 21/3/2012), Goode Concrete v CRH plc [2012] IEHC 198, (Unrep, Cooke J, 15/5/2012), Mavior v Zerko Ltd [2013] IESC 15, [2013] 2 ILRM 167, Éire Continental Trading Co v Clonmel Foods [1955] IR 170, Brewer v Commissioners for Public Works [2003] 3 IR 539, Smith v. Kvaerner Cementations Foundations Ltd [2006] EWCA Civ 242, [2006] 3 All ER 593 considered - Extension of time granted for one ground only (2012/579, 2012/580 & 2012/581 - SC - 10/10/2013) [2013] IESC 39

Goode Concrete v CRH plc

These appeals arose out of protracted litigation concerning the Irish concrete business. The appellant alleged anti-competitive behaviour to its detriment by the respondents. Three separate applications were brought by the appellant seeking a time extension to appeal three orders of the High Court. The first judgment regarded a refusal to grant he appellant an interlocutory injunction; the second concerned a High Court decision to grant security for costs against the appellant; and the third centred on ‘fixing the terms of security to be provided both to its amount and its phasing’. There was no attempt to appeal until December 2012. As such, the appeals were out of time. The appellant argued that unusual circumstances existed in this case which justified a time extension.

In respect of all three judgments, the appellant sought to establish a reasonable apprehension of bias on the part of the trial judge as a result of a shareholding in CRH plc held by that judge. While the judge did mention this shareholding, and no objection was brought, it was contended that clarifying information regarding the shareholding was discovered later which justified the grant of an extension of time. The appellant also sought to raise a multitude of other issues that arose out of the respective judgments.

Held by Clarke J that in the unusual circumstances of this case (as a result of the reasonable apprehension of bias argument), the courts would consider four factors in making a decision on an extension of time: firstly, the time the party seeking extension became aware of the facts upon which it intended to rely; secondly, the extent to which further inquiry prior to bringing an application for an extension of time to the court was reasonable; thirdly, the time which elapsed between the applicant becoming aware of the information and the application for extension; and fourthly, any other factors arising out of the unusual circumstances of the case.

It was held that the appellant became aware of the detailed information regarding the shareholding in September 2012. It was held that the time between becoming aware of the information and raising the application (26 ^th September-11 ^th December) did not debar the appellant from obtaining a time extension as the time was reasonably used to clarify the issues regarding the shareholding. It was therefore decided that, on the issue of reasonable apprehension of bias, there were arguable grounds for appeal. Concerning the other grounds for appeal raised by the appellant however, it was decided that nothing prevented the appellant from raising these issues within the specified time limit, and they were rejected.

It was therefore decided that it was appropriate to grant an extension of time for the service of a notice of appeal in each of the three applications, but that the extension should be limited to grounds connected with the allegation of reasonable apprehension of bias.

FRAMUS LTD & ORS v CRH PLC & ORS UNREP SUPREME 14.5.2013 2013 IESC 23

GOODE CONCRETE v CEMENT ROADSTONE HOLDINGS PLC & ORS UNREP COOKE 20.1.2011 2011/23/6032 2011 IEHC 15

GOODE CONCRETE v CRH PLC ROADSTONE WOOD LTD & ORS UNREP COOKE 21.3.2012 2012/16/4718 2012 IEHC 116

GOODE CONCRETE v CRH PLC ROADSTONE WOOD LTD & ORS UNREP COOKE 15.5.2012 2012 IEHC 198

COMPANIES ACT 1963 S390

MAVIOR v ZERKO LTD 2013 2 ILRM 167 2013 IESC 15

EIRE CONTINENTAL TRADING COMPANY v CLONMEL FOODS 1955 IR 170

BREWER v CMSRS FOR PUBLIC WORKS 2003 3 IR 539

SMITH v KVAERNER CEMENTATION FOUNDATIONS LTD 2006 3 AER 593 2007 1 WLR 370 2006 BLR 244 2006 EWCA CIV 242

1 Judgment of Mr. Justice Clarke delivered the 10th October, 2013

2 Judgment delivered by Clarke J

1. Introduction

3 2 1.1. These appeals arise as part of protracted contentious and difficult litigation involving the concrete business in Ireland. The plaintiffs/appellants ("Goode") allege anti competitive behaviour against the defendants/respondents. The first and second named defendants/respondents (collectively "CRH") together with the third named defendants/respondents ("Kilsaran") are alleged to have engaged in such activity to the detriment of Goode. It is of some relevance to note that similar accusations are made against both CRH and Kilsaran (together with other defendants) in connected proceedings brought by Framus Ltd and Others which have been the subject of a recent decision of this court in the context of the ability of certain of the plaintiffs in those proceedings to continue with an appeal to this court while in liquidation (see Framus Ltd & ors v C.R.H plc & ors [2013] IESC 23).

4 3 1.2. What came before this Court were three separate but closely connected applications on behalf of Goode seeking an extension of time within which to appeal three separate orders made by the High Court (Cooke J.) in these proceedings. Each of the orders in respect of which an extension of time to appeal was sought were the subject of written judgments of the High Court.

5 4 1.3. The first such judgment in time was delivered on the 20 ^th January, 2011, and related to the refusal by the High Court of an interlocutory injunction sought by Goode (Goode Concrete v Cement Roads tone Holdings PLC & Ors [2011] IEHC 15 ). The second such judgment, delivered on the 21 ^st March, 2012, related to the decision by the High Court to direct security for costs against Goode (Goode Concrete v CRH plc & Ors [2012] IEHC 116). The third decision of the High Court, which concerned fixing the terms of the security to be provided both as to its amount and as to its phasing (Goode Concrete -v- CRH PLC & Ors [2012] IEHC 198), was delivered on the 15 ^th May, 2012. The orders arising from those judgments were respectively perfected on the 2 ^nd February, 2011, the 8 ^th May, 2012 and the 17 ^th May, 2012.

6 5 1.4 No attempt was made to bring an appeal before this Court for a very considerable period of time. The motions seeking extension of time which were before this Court were initiated on the 11 ^th December 2012 which is between 19 and 22 months after the perfection of the various orders. Having regard to the 21 day period from the perfection of the orders which is fixed as being the time within which an appeal to this Court should be brought, it is beyond doubt but that the appeals were out of time by a very significant margin indeed. However it was said on behalf of Goode that there are unusual circumstances which apply in this case which ought to persuade this Court to extend time notwithstanding such a lengthy period having elapsed since the orders in respect of which appeals are now sought to be brought were perfected.

7 6 1.5 Immediately after the hearing of these appeals the Court took time to consider the issues raised and issued an immediate ruling indicating that time would be extended and giving appropriate directions to ensure an early hearing of the appeal. The Court also indicated that the grounds which could be raised in any notice of appeal filed would be limited in a manner which will be explored further in this judgment. Finally, the Court indicated that reasons for its decision would be given at a later date. The purpose of this judgment is to set out the reasons why I supported the ruling of the Court as delivered, on the day, by the Chief Justice. In order to understand the precise issues it is necessary to say more about the grounds of appeal which Goode sought to raise.

2. The grounds which Goode seeks to raise on appeal

8 2 2.1. There is one common ground which Goode sought to raise in respect of each of the appeals which it wished to bring. That ground concerns an allegation of a reasonable apprehension of objective bias on the part of the trial judge arising out of a shareholding held by the trial judge in CRH. It is important to note that the trial judge indicated to the parties that he had a shareholding in CRH prior to embarking on any contentious aspect of these proceedings. It is equally true that none of the parties raised any objection to the trial judge continuing to deal with the matter. In that context the question of whether it could be...