The High Court has dismissed a competition case brought by three companies against eight defendants, finding that years of unexplained delay and the loss of key witness evidence made a fair trial unlikely.
Mr Justice Cooke’s judgment, delivered on 19 July 2012, allowed three defendants’ motions to dismiss the proceedings for want of prosecution. The court did not decide whether the alleged competition-law violations had occurred.
The case began with a plenary summons in December 1996. The plaintiffs alleged that a cartel and abuses of dominant positions in markets including cement, aggregates and ready-mix concrete had forced them out of business between 1993 and 1994. They also challenged restrictive covenants in agreements made in February 1994 and pleaded a conspiracy claim. These were allegations, not findings by the court.
After years of procedural steps, including disputes over discovery and security for costs, the plaintiffs last took a step in 2005, when they provided discovery to the CRH defendants. They did not resume activity until 2011, when they served notice of an intention to proceed. The court noted an almost eight-year gap in steps involving Kilsaran.
The plaintiffs relied on financial difficulties, illness and difficulties obtaining evidence. The court rejected those explanations. It found that the evidence problems were known from the outset and did not explain why the plaintiffs had failed to examine documents obtained through discovery. It also considered that a proposed witness from a separate case concerned different alleged periods of cartel activity, leaving doubt about the evidence’s value in this case.
The court gave particular weight to prejudice to the defendants. Several people identified in the pleadings as participants in relevant meetings or transactions had died, retired, become ill or were said to have little recollection. The judge concluded that the defendants would probably be so disadvantaged in responding to specific allegations about events more than 20 years earlier that they would not have a reasonable prospect of a fair trial.
The court also questioned the practical value of trying historic market claims after so long, and said some relied-on events predated the relevant competition legislation or were more than six years before proceedings began. It found no culpable acquiescence by the defendants: after discovery and security issues were resolved, the initiative to advance the case lay with the plaintiffs. The motions were allowed and the action dismissed.