William Connolly and Sons Ltd v Torc Grain and Feed Ltd

CourtHigh Court
JudgeMr. Justice Eagar
Judgment Date28 November 2016
Neutral Citation[2016] IEHC 686
Docket Number[2008 No. 732 P]
Date28 November 2016

[2016] IEHC 686


Eagar J.

[2008 No. 732 P]


Practice and Procedures – Award for costs – O. 28, r 12 of the Rules of the Superior Courts – Amendment of defence – Wasted costs order

Facts: Following the institution of the proceedings of breach of contract by the plaintiff, the plaintiff now sought an order for costs in lieu of an application filed by the defendant for the amendment of its claim in relation to the plaintiff's claim. The key issue also related to the leave sought by the defendant to amend its defence to include certain terms of the relevant contract between the parties at the last minute before the trial. The defendant contended that the thrown away costs should not be awarded to the plaintiff as the main issue pertained to the quantum of damages, which could be resolved by way of evidence at the trial and thus, no extra burden had been imposed on the plaintiff by way of the application for amendment.

Mr. Justice Eagar permitted the defendants to amend its defence by including references to the relevant 4-para of the contract. The Court observing the circumstances and having regard to the important issues arising in the trial awarded costs to the plaintiff against the defendant, which were to be taxed in default of agreement. The Court found that since the present case pertained to horse breeding and horse racing industry, the amendment at the last minute by the defendant would have serious impacts on the outcome of the case. The Court, thus, awarded the wasted costs in favour of the plaintiff.

JUDGMENT of Mr. Justice Eagar delivered on the 28th day of November, 2016

This action came on for hearing before the court on 23rd November, 2016. The plaintiffs claim is for damages for breach of duty, misrepresentation, negligence, breach of statutory duty and breach of contract.


The plaintiff was at the institution of these proceedings a limited liability company but since 24th February, 2009 is registered as an unlimited liability company. The plaintiff produces supplies and distributes food stuffs for the horse racing industry.


The defendant according to the statement of claim was at all material times the importer, supplier and distributor of ground nut and related products for use in the production of horse feed and in particular had supplied the plaintiff with horse feed materials since 1980. At the end of September, 2002 the plaintiff agreed to purchase 400 tonnes of ground nut from the defendant for an agreed sum. It was agreed in writing between the parties in February, 2002 that the said product would be of a certain quality and fitness.


After the delivery of the first load of consignment of ground nut the defendant phoned the plaintiff advising that the results of the official tests were available, and indicated that the ground nut was in breach of an agreement between the parties. The ground nut contained Elfatoxin B1 to a level that it nearly exceeded the EU limit and due to the poor quality of the product the plaintiff did not accept any further deliveries from the 400 tonnes of ground nut which had been shipped to New Ross. The plaintiff claims that the ground nut consignment supplied by the defendant contained significant quantities of morphine. The plaintiff's clients sustained severe loss, damage, inconvenience, expense and loss of reputation as a result.


The plaintiff used the defendant's product for the production of horse feed which had been sold on to the horse racing industry, as a result of which a number of race horses tested positive for the banned, illegal and prohibited substance morphine during late November, 2002 and early December, 2002. Horses were disqualified and prize money was lost. Plaintiffs engaged P.R. consultants to address the resulting very high profile crisis caused to the plaintiff's business and reputation. Further, the plaintiff lost a number of customers as a result of the contamination with morphine. The plaintiff had to assign a number of its employees to work on the illegal substance contamination problem which had caused additional financial loss. The plaintiff sought a recall of the product and race horse trainers had to be notified. Following on from a notice for particulars from the defendant solicitor, the defence was delivered on 13th July, 2011 by solicitors on behalf of the defendant. The following preliminary objections were raised in the defence:

(a) The plaintiff had been guilty of inordinate and unconscionable delay in the commencement of the proceedings and secondly the defendant has suffered irreparable prejudice by reason of the plaintiff to keep safe and available by the defendants the ground nut allegedly purchased by the plaintiff from the defendant. The defendant also denied that it was the importer, supplier and distributor of ground nut and related products for use and the production of horse feed.

(b) The defendant also denied that it knew or it was informed by the plaintiff that the products supplied by the defendant were ever intended for use by race horses.

(c) The products supplied by the defendant to the plaintiff did not contain the banned illegal substance.

(d) The defendant was not guilty of the said or any breach of contract.


In opening the case, counsel for the plaintiff having outlined the statement of claim and the defence, he then referred to correspondence which his solicitor had received on 16th November, 2016 one week before the trial was due to commence. The relevant portion of this letter states ‘with regard to the recent updated particulars of special damaged furnished, we would repeat that same are irrecoverable, particularly in light of the terms and conditions of the contract upon which the plaintiff sues’. This appears to the Court to be the first mention of the terms of the contract which would make the special damages irrecoverable, and this was not contradicted by the...

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