Killeen v Thornton Waste Disposal Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 18 March 2009
• Neutral Citation: [2009] IEHC 131
• Court: High Court
• Docket Number: [2006 No. 3113 P]
• Date: 18 March 2009

Killeen v Thornton Waste Disposal Ltd

BETWEEN

JOHN KILLEEN

PLAINTIFF

AND

PADRAIG THORNTON WASTE DISPOSAL LIMITED

DEFENDANT

[2009] IEHC 131

[No. 3113 P/2006]

THE HIGH COURT

2005 1 ILRM 290 2004 19 4269

DESMOND v MGN LTD UNREP SUPREME 15.1.2008 2008 IESC 56

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

EWINS v INDEPENDENT NEWSPAPERS(IRL) LTD 2003 1 IR 583

HUGHES v MOY CONTRACTORS UNREP CARROLL 29.7.1999 1999/14/3861

CONSTITUTION ART 40.3

TUOHY v COURTNEY 1994 3 IR 1

QUINN, STATE v RYAN 1965 IR 70

STATUTE OF LIMITATIONS ACT 1957 S11

HAUGHEY IN RE 1971 IR 217

O'CALLAGHAN v MAHON 2006 2 IR 32

F (J) v DPP 2005 2 IR 174

O'DOMHNAILL v MERRICK 1984 IR 151

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

BARRY v BUCKLEY 1981 1 IR 306

HENDERSON v HENDERSON 1843 3 HARE 100

RSC O.17 r1

O'FLOINN PRACTICE & PROCEDURE IN THE SUPERIOR COURTS 2008 2ED 185

CIVIL LIABILITY ACT 1961 S8(1)

W (P) v DPP UNREP SUPREME 24.6.1998 1998/33/12971

1 JUDGMENT of Mr. Justice William M. McKechnie delivered on the 18th day of March, 2009

Notice of Motion

2 1. Pursuant to a Notice of Motion dated the 27 ^th June, 2008, the defendant company, having secured permission to amend its Defence in this regard, sought an order, pursuant to the inherent jurisdiction of this Court, "dismissing the plaintiff's claim ... on the basis that the defendant is prejudiced and/or unable to properly and/or effectively defend the proceedings due to the death of Mr. Padraig Thornton (deceased)". Having heard this Motion on the 2 ^nd February, 2009, I reserved judgment on this relief because of the rather unusual basis upon which the motion was moved. I now give reasons in respect thereof.

Background

3 2. In early 2001, the defendant company was anxious to purchase certain lands in South Meath and North Kildare for the purposes of developing a motor recycling facility and landfill thereon. In the belief that the plaintiff could assist in this intended acquisition, the company acting at all times through its director, Mr. Padraig Thornton entered into an agreement with the plaintiff in or about that time. This agreement was entirely oral and was never either in full or in part committed to or recorded in writing. That an "oral agreement" existed between the parties is not in dispute but what is, are the terms thereof.

4 3. Mr. Killeen alleges that the agreement, concluded between himself and Mr. Padraig Thornton, who was vested with both apparent and actual authority from the defendant company, was as follows:-

5 (i) That the company would pay the plaintiff 50% of any savings which it made on acquiring the targeted lands below a price of IR£20,000 per acre,

6 (ii) That it would pay the plaintiff the sum of IR£100,000 plus VAT if one of the landowners, a Mr. Fergal Farrelly entered into a contract for the sale of his lands, and thirdly

7 (iii) That if another landowner, a Mrs. Delia Duggan, who had earlier withdrawn from her declared intention of entering into a contract, did in fact subsequently do so, then the plaintiff would be remunerated for his services although at the time no specified amount was agreed.

8 4. In the events which happened, all three aspects of this alleged agreement in fact occurred and consequently, the plaintiff now seeks in these proceedings payment by way of damages for breach of contract and/or misrepresentation and/or on a quantum meruit basis.

9 5. The defendant's position, as outlined in its Defence is that the only agreement which existed was one for the payment of a sum of €126,973.81 plus V.A.T.; this in respect of the plaintiff's facilitating efforts as part of the acquisition process. These services, which were acknowledged to have been performed, were paid for in full by the company on receipt of an invoice dated 14 ^th February, 2002. Save for this position all other aspects of the plaintiff's claim were denied.

10 6. As appears clearly from the documentation in this case, including the affidavit evidence, it is common case that whatever agreement existed between the plaintiff and the defendant was one made solely between Mr. Killeen and Mr. Padraig Thornton and was entirely verbal. Neither it, nor any part of it was ever noted or attested. The agreement, it was therefore said, was strictly concluded on a one to one basis and was, for its entirety, processed orally.

11 7. Because of the personalised manner in which the agreement was concluded, and by reason of the unfortunate death of Mr. Padraig Thornton on the 29 ^th March, 2005, it is now claimed on behalf of the company that since it has been deprived of the evidence of an essential, indeed, its only witness to this transaction, it is prejudiced and thus is unable to properly and/or effectively defend these proceedings. That being the situation, it now seeks to have the entire case dismissed. On the factual side the defendant does not allege delay or assert any additional matter, save to point out that the plaintiff must have known for some considerable time of the impending death of Mr. Thornton. In response, the plaintiff claims that he held off with the instant proceedings for that very reason, namely Mr. Thornton's decaying health, and that at no stage did he seek to gain a tactical advantage in the circumstances which existed.

12 8. Without passing any comment whatsoever on the merits of this case or on what other legal or evidential defences might be available, I propose to assume that, for the purposes of this Motion, Mr. Thornton was the most influential witness which the defendant company had at its disposal, and that in his absence no comparable or alternative source of evidence is now available to it.

The Law

13 9. Counsel on behalf of the defendant referred to many cases, and opened some, in which the court was called upon to exercise its inherent jurisdiction or apply O. 19, r. 28 of the Rules of the Superior Courts, so as to terminate proceedings on the ground of abuse or delay. There is not doubt but that the general principles of law applicable to such circumstances are well established with the only issue, in many of the cases, being how such principles are applied to the individual facts of each case. Recent cases such as Gilroy v. Flynn [2005] ILRM 290 and Desmond v. MGN Ltd. [2008] IESC 56, where some differences may be detected as to the impact of the European Convention of Human Rights Act 2003 on those principles, are not relevant to the instant case. Accordingly it is unnecessary to quote at any length from authorities, such as Rainsford v. Limerick Corporation [1995] 2 ILRM 561 or Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. A short passage however, from the judgment of Keane C.J., in Ewins v. Independent Newspapers (Ireland) Limited [2003] 1 I.R. 583 at 586-587 shows what the general position is. The learned Chief Justice said:-

"I am satisfied that the correct approach on an application of this nature as has been frequently made clear by many authorities, to all of which it is not necessary to refer, is for the court in the first instance to consider whether the actual delay in prosecuting the claim is inordinate. If it is not, then that is of course an end of the application. If it is, the court then has to go on to consider whether although inordinate, it is excusable and again if it is excusable that will be an end of the application. Then as has been again frequently said, even at that stage where the delay is both inordinate and inexcusable, the court must go on to consider whether the justice of the case, on balance, requires that the proceedings be either struck out or left to take their course. Undoubtedly, one of the matters to which the court has to have regard in deciding that third issue, is whether there is any prejudice resulting to the defendant as a result of the delay. That only comes into the equation of course if one has already come to the conclusion that the delay is both inordinate and inexcusable. If it is inordinate and inexcusable, then the court must consider all the circumstances including, as in this case, the non-availability of a particular witness..."

14 10. It is infinitely clear that this line of authority is based on a core allegation which must be established before the third tier of the criteria is even contemplated. That is "delay". Without such a finding, it is entirely unnecessary to consider whether any passage of time is inordinate or inexcusable much less where the balance of justice lies. A qualifying pre-condition to these principles, is therefore the establishment by the moving party of a delay which is recognisable in law as at least potentially leading to the other findings contemplated by the aforesaid test. In this case there is no such allegation made and therefore in my view this line of authority is simply on principle not available to the defendant. It cannot assist it with regard to the relief sought.

15 11. Notwithstanding this clear cut position the defendant company still sought to rely on Hughes v. Moy Contractors Limited [1999] IEHC 244, in particular on a passage from the last page of that judgment where Carroll J. said:-

"While I take the point that other witnesses are available, it seems to me that Mr. Ledwidge was absolutely essential to the case being made by the Plaintiff. In being deprived of Mr. Ledwidge's evidence I am satisfied that both the second and third Defendants are gravely prejudiced and that there is a substantial risk that it would not be possible to have a fair trial in the absence of his evidence."

16 It is therefore claimed that this passage is supportive of the defendant's motion.

17 12. In my view this cannot be so, as a reading of the entire judgment makes it...