Goode Concrete v CRH Plc and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 15 May 2012
• Neutral Citation: [2012] IEHC 198
• Court: High Court
• Date: 15 May 2012

[2012] IEHC 198

THE HIGH COURT

[No. 10685P/2010]

Goode Concrete v CRH Plc & Ors

MR JUSTICE COOKE

APPROVED TEXT

COMPETITION

BETWEEN

GOODE CONCRETE

PLAINTIFF

AND

CRH PLC, ROADSTONE WOOD LIMITED AND KILSARAN CONCRETE

DEFENDANTS

COMPETITION ACT 2002 S4

TREATY ON FUNCTIONING OF EUROPEAN UNION ART 101

COMPETITION ACT 2002 S5

TREATY ON FUNCTIONING OF EUROPEAN UNION ART 102

HARLEQUIN PROPERTY & ORS v HALLORAN UNREP CLARKE 19.1.2012 2012 IEHC 13

COMPETITION ACT 1963 S390

RSC O.29

COMPETITION ACT 1963 S330

Practice and procedure – Costs – Security – Fixing of costs on phased basis – S 290 Companies Act 1963

Facts: Following the earlier judgment of 21st March 2012 ([2012] IEHC 116), the Defendants had been granted orders requiring the plaintiff to provide security of costs. Said costs were to be provided on a phased basis for reasons of fairness, as well as uncertainty as to the extent of any resulting trial of the underlying claim.

Held by Cooke J that the best the Court could do in cases where there were uncertainties such as the present is to set security at a level that offered reasonable protection for the defendant, whilst seeking to ensure the plaintiff was not required to provide unnecessarily high security. Harlequin Property and Others v O'Halloran [2012] IEHC 13 applied.

As the plaintiff was unable to pay, the Court considered that it would be appropriate to apply s. 390 of the Companies Act 1963, rather than o. 29 of the Rules of the Superior Court 1986 and require sufficient security for each defendant. Sums were fixed accordingly.

1 JUDGMENT of Mr. Justice Cooke delivered the 15th day of May, 2012

2 1. In its judgment of 21 ^st March 2012, the Court ruled in favour of the motions brought by the defendants requiring the plaintiff to provide security for costs, but did so with the intention of fixing such security on a phased basis rather than as global amounts, by way of security for the estimated costs of a full trial of all the issues, as apparent from the statement of claim and the affidavits filed in the proceeding to date.

3 2. The Court did so for the reasons of fairness explained in that judgment, and also because the Court anticipates that it may be difficult to assess with any confidence the precise extent of the trial that these issues may ultimately require. The Court anticipates that when formal pleadings have been closed and the inevitable discovery of documents has been undertaken, it will be necessary for the Court, after hearing the parties, to identify a number of discrete issues which may usefully be tried, possibly on affidavit or with limited oral evidence and with limited recourse to expert witnesses.

4 3. The Court expresses no definite or even provisional view in this regard at this stage prior to the close of pleadings, but it does not seem unrealistic to anticipate that the efforts of the parties and the time of the Court may be more efficiently employed if it is possible at an early stage to isolate some key issues the Court will be required to decide and to tailor subsequent trial preparations accordingly.

5 4. The plaintiff company ceased trading in February 2011. It is insolvent so that it's primary objective in this litigation in practical terms is presumably to recover damages for having been put out of business by the allegedly unlawful activities of the defendants. As pleaded to date, the plaintiff's claim ranges over different product markets and different geographic markets and alleges infringement, both of the cartel provisions of s.4 of the Competition Act and Article 101 TFEU, and abuse of dominance under s. 5 of the Competition Act and Article 102 TFEU. In addition, claims of wrongful inducement of breach of contract, interference with economic relations and conspiracy are raised.

6 5. At the heart of the claims as currently pleaded, however, it would appear that there is an issue which arises out of an alleged corporate relationship between the CRH defendants and Kilsaran, upon which is based the allegation of the existence of "collective dominance" in the market in the Dublin area for ready-mix concrete, that being the primary product market from which the plaintiff claims to have been driven when forced to cease trading. Depending upon the defences advanced in further pleadings, it seems reasonable to suggest therefore, that it will be in the interests of the parties and of the economy of the litigation, to explore at an early stage whether issues directed at the definition of those markets and core issues such as those arising out of the alleged existence of "corporate links" and "collective dominance" may be usefully determined in advance of any full witness trial.

7 6. The Court makes these observations at this stage, not by way of prejudging a discussion at a motion for directions, but by way of a background to the approach it now takes to the fixing of the amounts of security on a phased basis.

8 7. The Court will fix amounts for the first phase which it described in paragraph 54 of its judgment of 21 ^st March last, as covering the completion of exchange of pleadings and the making of discovery on either side. The Court has considered the reports submitted by the costs accountants on either side and the arguments advanced at the hearing on 8 ^th May last.

9 8. Essentially, CRH proposes security for this phase to be fixed at €215,000 while the plaintiff proposes a figure of €23,000. Kilsaran proposes a figure of €232,000 and the plaintiff says it should be €16,000. In broad terms the major discrepancies between the the plaintiff and defendants are attributable to two factors:

10 (a) A disagreement as to which heads of costs fall to be covered in this first phase; and

11 (b) A disagreement as to the basis upon which the amount should be fixed; (i) whether as "sufficient security" by analogy with s.390 of the Companies Act in 1963, that is security for the estimated full costs of the relevant proceeding; or (ii) on the basis of the traditional practice under O.29 Superior Court Rules as one third or 30% of the full estimate.

12 The respective positions of the parties before the application of the 30% adjustment are represented in the following table:

TABLE

	CRH Costs	Kilsaran Costs			Total costs
	CRH Est.	Plaintiff Est	Kilsaran Est.	Plaintiff Est.	CRH & Kilsaran
	Phase One	Phase One	Phase one	Plaintiff one	Plaintiff One
Solicitors Fees
Exchange of Pleadings	50.000	80,000	58,000	35,000	108,000
Furnish discovery	100,000	17,500	72,000	12,5000	172,00
Review other's discovery	25,000	22,5000	36,000	17,500	61,000
TOTAL	175,000	120,000	166,000	65,000	341,000
Senior Counsel
Injunction					0
Other pre-trial	15,000	4,250	9,000	2,750	24,000
Brief					0
Refreshers & Submissions					0
Junior Counsel
Injunction					0
Other pre-trial	15,000	4,500	9,000	2,600	24,000
Brief					0
Refreshers & Submissions					0
Expert Witnesses		0	48,000	0	48,000
Factual Witnesses					0
Stenography					0
Electronic data services	10,000				10,000
TOTAL	215,000	128,750	232,000	70,350	447,000

13 9. In reaching its proposed figure of €23,000 security, the plaintiff starts with the CRH proposed figure of €215,000 and, based upon its own costs accountant's report, reaches the TOTAL figure given in the table of €128,750. To this a series of adjustments is made to arrive at €23,000. First, €30,000 is deducted representing the difference between the respective instruction fees for the solicitors of €50,000 and €80,000 on the basis that the plaintiff ought not to be asked to bear more costs than CRH itself estimates.

14 10. The second adjustment is directed at the scope of the first phase as identified...