The Court of Appeal has upheld the dismissal of a haulage contractor’s claim over an allegedly defective cement mixer truck, ruling that delay made it unfair for the case to proceed.
Paul Kenny had appealed a High Court decision that dismissed his claim against Motor Network Limited, trading as Jennings Truck Centre, and J Harris Assemblers. The appeal was heard by Costello, Noonan and Collins JJ. In an ex tempore judgment delivered on 25 February 2020, Noonan J concluded that the appeal should be dismissed; the other judges agreed.
Kenny bought a new Hino 700 Series 8x4 cement mixer lorry on 22 September 2005 for €145,770. The judgment records that he alleged problems began within days of the purchase and continued over the following years. The truck was off the road for seven days in August 2008 after a second gearbox failure. A motor assessor examined it the following month. It was repossessed on 3 March 2009, apparently by a finance company.
Kenny issued proceedings in September 2009. His replies to particulars, detailing repair periods and claimed losses, were not delivered until February 2012, about 26 months after they had been requested. The court noted that the largest claimed item was €420,000 for loss of contract amounts or loss in value, calculated using annual net earnings and an expected seven-year vehicle life. After the replies were delivered, the proceedings did not advance until the second defendant applied to dismiss them in November 2016.
The High Court found the delay in providing particulars inordinate and inexcusable, and dismissed the claim in November 2017. Kenny’s solicitor had explained that Kenny worked as a driver on the continent between 2009 and 2012 and that this caused difficulty calculating losses with his accountant. The solicitor also argued that the defendants had not tried to move the case forward and that the balance of justice favoured a trial.
The Court of Appeal accepted that the appeal was not a rehearing on the merits and that it should be slow to interfere with the trial judge’s findings. Noonan J said the four-and-a-half-year period after delivery of the particulars was also inordinate and had no explanation. He rejected the argument that the second defendant’s failure to progress the case amounted to acquiescence: the plaintiff bore responsibility for advancing his claim.
The court found that delay was prejudicial, particularly because liability and the amount of any loss would depend substantially on oral evidence about events many years earlier. It held that the balance of justice favoured dismissal and dismissed the appeal. The ruling did not decide whether the truck was defective or determine the merits of Kenny’s underlying claim.