The Court of Appeal has dismissed two appeals by Michael Leahy arising from his long-running dispute with OSB Group Limited and Surteco GmbH over edging for laminated worktops. The appeals concerned his attempts to strike out the defences of Surteco and its Irish representative, Eirfoam Limited. The court did not decide the underlying claims for damages.
Leahy says the defendants’ alleged failures to supply suitable edging undermined a worktop manufacturing business he planned in 2003 or 2004. He claims negligence, breach of contract, negligent misstatement and misrepresentation. The defendants deny liability, dispute that they made the alleged promises or representations, and challenge the claimed losses. They also plead that any liability was compromised by an agreement made in May 2005.
In the first appeal, Leahy challenged the High Court’s refusal to strike out the defence over alleged failures to comply with a discovery order. The Court of Appeal acknowledged shortcomings, including an omitted fax concerning a 2004 visit to Germany and errors in how discovered documents were listed. It noted that Leahy had already obtained a copy of the fax and that the later discovery issues were addressed through further affidavits. The High Court had ordered further and better discovery and reduced the costs awarded to the defendants for the discovery part of the motion.
The appeal court said the applicable rule permits striking out a defence for discovery failures only where the circumstances warrant that step; it is not a punishment. Leahy did not show that the defendants’ conduct created a risk that a fair trial could not take place. The court therefore dismissed this appeal. He had abandoned his separate appeal against the refusal to strike out the defence under Order 19, rule 28 in the first proceedings.
The second appeal followed a later application under that rule. Leahy argued that correspondence and the absence of records of laboratory work showed that a May 2005 agreement had been breached and that the defence was bound to fail. The Court of Appeal held that the documents required context and that the meaning of the alleged agreement, what was done under it and the significance of any missing records involved contested factual questions for trial. The earlier High Court judge had not found that a legally binding agreement existed, or determined its terms or whether it had been breached.
The court dismissed the second appeal as well. It said the new version of Order 19, rule 28, introduced in 2023, codified the existing law and did not change the limits on resolving factual disputes at this stage. The underlying damages claim remains unresolved. The defendants are presumptively entitled to their costs of the appeals; Leahy may make a written submission on costs within 14 days of electronic delivery of the judgment.