Knowles v The Electricity Supply Board

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Noonan
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 761
• Date: 21 December 2018
• Docket Number: [2009 No. 4425 P.]

BETWEEN

RICHARD KNOWLES

PLAINTIFF

AND

THE ELECTRICITY SUPPLY BOARD

DEFENDANT

[2018] IEHC 761

[2009 No. 4425 P.]

THE HIGH COURT

Statement of claim – Amendment – Delay – Plaintiff seeking to amend his statement of claim – Whether the new facts pleaded were supporting a new cause of action

Facts: The plaintiff, Mr Knowles, issued proceedings on the 18th May, 2009 followed by a statement of claim delivered on the 22nd May, 2009. The plaintiff pleaded that by letter dated the 25th May, 2004, he was invited to submit to the defendant, the Electricity Supply Board, a tender for the erection of steel and wooden poles and associated works. The plaintiff submitted a tender on the 14th June, 2004 and was subsequently awarded a contract in or about November, 2004. During the course of negotiations for the award of the contract, the plaintiff pleaded that it was represented to him by the defendant that if he acquired certain equipment, he would be awarded the contract and would be kept working at 80% of his operational capacity thus justifying the investment in the new equipment. The plaintiff pleaded that he expected to receive work to the value of €782,000 but contrary to the representations made, he did not receive such a volume of work nor was he kept engaged at 80% of his capacity as promised. In consequence of this, he suffered loss which he quantified initially as being in excess of €500,000. A defence and counterclaim were delivered on the 15th March, 2010 and the pleadings closed in May, 2012. The case was transferred into the case management list of the High Court with the first case management conference taking place on the 18th February, 2018. On the 11th July, 2018, Noonan J fixed a provisional trial date of the 15th January, 2019. At a further case management conference on the 7th November, 2018, the plaintiff’s counsel indicated for the first time that the plaintiff proposed to seek to amend his statement of claim. Noonan J gave liberty to the plaintiff to issue a motion in that regard in the event that the amendment was not agreed. The claim being pleaded by the plaintiff was a new cause of action that rested on new facts. The new cause of action was breach of the public procurement regulations and the new facts were that the plaintiff’s work was unlawfully awarded to other contractors.

Held by Noonan J that the delay that occurred in this case was unacceptable; there was presumptive prejudice where witnesses were being asked to recall for the first time events of such antiquity. Noonan J held that the fact that all files relating to the frameworks which concerned the other contractors in respect of whom the plaintiff made complaint had been destroyed worked an additional and irremediable actual prejudice to the defendant. Noonan J held that the new facts pleaded were not simply clarifying the original claim but were new facts supporting a new cause of action. Noonan J held that no good reason had been advanced for the failure on the part of the plaintiff to plead the matters which he sought to plead in the original statement of claim. Noonan J was not convinced about the extent to which discovery had any particular bearing on this.

Noonan J held that he would refuse the application.

Application refused.

JUDGMENT of Mr. Justice Noonan delivered on the 21st day of December, 2018

Background Facts

1 The events giving rise to these proceedings occurred as far back as fourteen years ago. The proceedings were issued on the 18th May, 2009 followed almost immediately by a statement of claim delivered on the 22nd May, 2009. In that document, the plaintiff pleads that by letter dated the 25th May, 2004, he was invited to submit to the defendant a tender for the erection of steel and wooden poles and associated works. These works were to take place within a defined geographic area broadly speaking in North Dublin and Dundalk.

2 The plaintiff submitted a tender on the 14th June, 2004 and was subsequently awarded a contract in or about November, 2004 for the erection of low voltage (LV) wooden poles. During the course of negotiations for the award of the contract, the plaintiff pleads that it was represented to him by the defendant that if he acquired certain equipment, he would be awarded the contract and would be kept working at 80% of his operational capacity thus justifying the investment in the new equipment.

3 The plaintiff pleads that he expected to receive work to the value of €782,000 but contrary to the representations made, he did not receive such a volume of work nor was he kept engaged at 80% of his capacity as promised. In consequence of this, he suffered loss which he quantified initially as being in excess of €500,000. The losses claimed for by the plaintiff appear to extend up to about September 2006 so that it was the best part of three years thereafter before proceedings were instituted.

4 The case thereafter pursued a fairly languid course. A defence and counterclaim were delivered on the 15th March, 2010 and the pleadings closed in May, 2012. Thereafter, little or nothing appears to have happened for three years when a request for discovery was made on the 6th March, 2015. Discovery was not agreed and a motion issued in October, 2015 resulting in an affidavit of discovery from the defendant sworn on the 5th February, 2016. Thereafter a Notice of Intention to Proceed was served in June 2016 followed by a notice of trial in the same month.

5 Another application for discovery was brought in February 2017 which ultimately had to be dealt with by the court resulting in an order of the 27th February, 2017 directing the defendant to make discovery within ten weeks of any contracts and documentation showing payments made by the defendant for wood poling work in the Dublin North and Dundalk regions between 2004 and 2006. The defendant failed to comply with the order and accordingly a further motion to compel compliance was brought on the 17th July, 2017. Shortly thereafter on the 20th July, 2017, the defendants swore an affidavit exhibiting the documents in redacted form and ultimately the court directed on the 13th November, 2017 that the documents in unredacted format should be furnished within four weeks. Those documents were furnished possibly in December 2017 but certainly no later than January 2018.

6 Thereafter, the case was transferred into the case management list of this court with the first case management conference taking place on the 18th February, 2018. From the outset, counsel for the plaintiff made clear that the plaintiff was extremely anxious for an early trial date if at all possible before the long vacation in 2018. For various reasons, that did not prove possible but ultimately on the 11th July, 2018, I fixed a provisional trial date of the 15th January, 2019. The case has to date appeared on at least ten occasions in the case management list. In May of 2018, I recommended that the parties should consider mediation. Various other issues about expert reports and so forth arose but in the interim, the parties agreed to go to mediation and the mediation took place in October this year. It was not successful.

7 At a further case management conference on the 7th November, by which stage there had been some six previous conferences, the plaintiff's counsel indicated for the first time that the plaintiff now proposed to seek to amend his statement of claim. I gave liberty to the plaintiff to issue a motion in that regard in the event that the amendment was not agreed and it is with that motion that I now propose to deal.

8 The amendments proposed on their face appear to be very extensive but in substance, are less so. The plaintiff now for the first time pleads that the contract awarded to him was subject to EU public procurement regulations as transposed into Irish law. The essential new issue arising in this regard is that the plaintiff now claims that the defendants breached the procurement regulations by unlawfully awarding work covered...