Hurley v Valero Energy [Ireland] Ltd

JurisdictionIreland
JudgeMr Justice David Holland
Judgment Date30 November 2022
Neutral Citation[2022] IEHC 651
Year2022
CourtHigh Court
Docket Number2017/2387P
Between/
Patrick Hurley and Josephine Hurley
Plaintiff
and
Valero Energy (Ireland) Limited
Defendant

[2022] IEHC 651

2017/2387P

THE HIGH COURT

Discovery – Motion to dismiss – Want of prosecution – Defendant seeking to dismiss the proceedings for want of prosecution – Whether the plaintiffs acted in breach of their obligation to preserve relevant documents

Facts: The plaintiffs, Mr and Ms Hurley, occupied and operated, under repeated agreements with the defendant, Valero Energy (Ireland) Ltd, and its predecessors in title, the Texaco Westside Service Station, Model Farm Road, Bishopstown, Cork. The plaintiffs claimed damages on the basis that, in breach of various contractual and tortious duties, warranties, collateral warranties and/or actionable representations, the defendant undermined the plaintiffs’ operation of the service station by, inter alia, failing to maintain, repair, update and keep its premises, plant, IT systems and equipment to up-to-date, modern and competitive standards, such that they became dilapidated and outdated. The plaintiffs also claimed that the defendants charged excessive annual fees and fuel prices. All this, they said, rendered the plaintiffs’ service station business uncompetitive with its local commercial rivals. The claim related to the years 2009 to 2016 inclusive. Damages were claimed as to costs, incurred by the plaintiffs, of maintenance, repair and/or replacement of equipment and as to lost earnings/profits exceeding €1 million. There was a motion to dismiss the entire proceedings for want of prosecution pursuant to Order 31 Rule 21 of the Rules of the Superior Courts and by reason of the plaintiffs’ failure to make discovery.

Held by Holland J that, whether innocently, negligently or deliberately, the plaintiffs acted in breach of their obligation, both before and after discovery was sought, to preserve relevant documents. Holland J noted that the motion to dismiss prompted the supplemental affidavit of discovery by the plaintiffs discovering no less than 227 documents which discovery ought to have been made in the first affidavit of discovery. While Holland J refused to strike out the proceedings, he directed that the first plaintiff swear an additional affidavit disclosing full detail of their disposal or destruction of documents, which detail had been conspicuously lacking. Holland J held that the plaintiffs’ initial affidavit of discovery was defective as to schedule two in that the description of documents no longer in the plaintiffs’ position was entirely inadequate (it was merely a recitation of the categories in question rather than identifying specific documents or even types of documents) and the first plaintiff failed to comply with the obligation to state when those documents were last in the possession of the plaintiffs (the date of the disposal or destruction). Holland J gave directions, with a view to reducing the potential for injustice, as to the provision of the plaintiffs’ accountant’s report. Holland J noted that this provision in early course was volunteered by the plaintiffs in response to the motion to dismiss.

Holland J held that in his provisional view the defendant was entitled to its costs of the motion.

Dismissal refused.

JUDGMENT OF Mr Justice David Holland DELIVERED 30 NOVEMBER 2022

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 NOVEMBER 2022

1

INTRODUCTION

2

O.31 R.21 RSC, THE DISCOVERY ISSUE AND THE MOTION

3

DOCUMENTS TO HAND SINCE THE MOTION ISSUED & REMAINING ISSUES

4

RETAIL PRICES OF FUELS & THE PLAINTIFFS' MARGINS

5

THE LAW

8

CHRONOLOGY

18

DEFENDANT'S SUBMISSIONS AS TO THE FACTS & COMMENT THEREON

22

PLAINTIFFS' SUBMISSIONS AS TO THE FACTS & COMMENT THEREON

23

No failure to make discovery and no wilful/negligent destruction

23

The Defendant is not prejudiced

24

Dismissal not warranted despite prejudice

26

DISCUSSION AND DECISION

27

SUBSTANTIVE ORDERS

32

COSTS

32

INTRODUCTION
1

This is my judgment in a motion to dismiss the entire proceedings for want of prosecution pursuant to Order 31 Rule 21 of the Rules of the Superior Courts (“O.31 R.21”) and by reason of the Plaintiffs' failure to make discovery. The parties have made written and oral submissions.

2

The Plaintiffs have since 1989 occupied and operated, under repeated agreements with the Defendant and its predecessors in title, the Texaco Westside Service Station, Model Farm Road, Bishopstown, Cork (“the Service Station”) – a petrol station and shop owned by the Defendant. There is a dispute whether the Plaintiffs occupy as tenants or licensees – there is even a dispute as to whether that is in dispute in separate Circuit Court proceedings. But that is not my present concern. The Plaintiffs pay an annual stipend to the Defendants – whether license fee or rent — which, they say, averaged €56,627 in the period in question. The Plaintiffs are, as is usual in such arrangements, obliged to buy their fuel supplies from the Defendant at prices set by the Defendant.

3

The Plaintiffs claim damages on the basis that, in breach of various contractual and tortious duties, warranties, collateral warranties and/or actionable representations, the Defendants undermined the Plaintiffs' operation of the Service Station by, inter alia, failing to maintain, repair, update and keep its premises, plant, IT systems and equipment to up-to-date, modern and competitive standards, such that they became dilapidated and outdated. The Plaintiffs also claim that the Defendants charged excessive annual fees and fuel prices. All this, they say, rendered the Plaintiffs' service station business uncompetitive with its local commercial rivals. The claim relates to the years 2009 to 2016 inclusive. Damages are claimed as to costs, incurred by the Plaintiffs, of maintenance, repair and/or replacement of equipment and as to lost earnings/profits exceeding €1 million – as to proof of which they have retained expert advice. This brief paraphrase of their case, of which fuller particulars are pleaded, suffices for present purposes.

4

Notably, the Plaintiffs plead that they expressed their dissatisfaction at the foregoing matters, inter alia, by letter dated 23 May 2011, email dated 30 September 2014 and email dated 4 December 2014. Thus, they say that from 2014 at least the Defendant was aware of the prospect of such proceedings as these. That, of course, implies that the Plaintiffs were also aware from that time of that prospect. This position of awareness is perhaps amplified by the fact that there have been other proceedings between the parties 1.

5

The Defendant denies the entire claim and also pleads a Deed of Settlement dated 3 September 2012 which, it says, compromises the claim or part of it. The Defendant purchased the Irish Texaco business from Chevron Corporation in August 2011. In doing so acquired all records of that business and, for present purposes, I need not concern myself with the distinction between the Defendant and Chevron.

6

Quite a number of affidavits were filed in the motion – affidavits sworn by a solicitor for the Defendant, by the First Plaintiff, by Mr Twohig of the Defendant and by Mr Jacob, forensic accountant to the Defendants. It does not seem to me that a sequential recital of their content will much assist. I have read all and will refer to relevant content as seems useful. The deponents were not cross-examined.

O.31 R.21 RSC, THE DISCOVERY ISSUE AND THE MOTION
7

O.31 R.21 states:

“If any party fails to comply with any Order to answer interrogatories or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence if any struck out, and be placed in the same position as if he had not defended, the party interrogating may apply to the court for an Order to that effect, and an Order may be made accordingly.”

8

It will be seen from O.31 R.21 that this is not the usual form of motion to dismiss for want of prosecution, grounded in delay. Rather, it is grounded in a failure to comply with an interlocutory order as to the discovery of documents to the Defendant. So, while there has been considerable delay in this case, the parties are agreed that it is of little, if any, relevance to the motion before me.

9

The Defendant, by letter dated 26 May 2020 sought, and the Plaintiffs by letter dated 25 June 2020 agreed to make within 12 weeks, voluntary discovery of nine categories of documents. Categories (1), (5) and (6) consisted of all documents relating to:

1: the calculation of the average payment made by the Plaintiffs to the Defendant in respect of their occupancy of the Westside Service Station for the years 2010 to 2016 including but not limited to invoices, remittances and proofs of payment, reconciliation documentation and supporting information.

5: the price (at which) 2 the Plaintiffs were supplied petroleum products from the Defendant for the period 2007 to 2 July 2017.

6: the price (at which) 3 the Plaintiffs sold petroleum products supplied by the Defendant for a period 2007 to 31 July 2017.

10

The Plaintiffs did not make discovery within the 12 weeks which, by my calculation, expired on 17 September 2020. They did so by affidavit as to documents sworn 21 April 2021 and sent to the Defendant under cover of letter dated 22 April 2021. That affidavit avers, as to each of Category 1, 5 and 6, that all relevant documents

“for the period 2007 to 31 December 2014 have not been retained by the Plaintiffs, as documentation of such nature is typically only retained for 6 years.”

As to Categories 1 and 5, the Plaintiffs add:

“If the Defendant has these documents in its possession and intends to rely on these documents, then the Plaintiffs will need to...

To continue reading

Request your trial
1 cases
  • Ellickson and Others v Walsh
    • Ireland
    • High Court
    • 25 d4 Maio d4 2023
    ...a failure to make discovery, the Court should be very slow to strike out a claim or defence. In Hurley v Valero Energy (Ireland) Limited [2022] IEHC 651, Holland J helpfully analysed the relevant jurisprudence at paragraphs 28 to 54 of his judgment. Included in that detailed analysis (at pa......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT