The High Court dismissed proceedings brought by Louis J. O’Regan Limited and Jeremiah O’Regan against Clare County Council and Boxinye Limited, trading as and formerly known as Babtie Pettit, after finding that the plaintiffs’ delay was inordinate and inexcusable and that a fair trial was unlikely.
In a judgment delivered on 21 May 2015, Mr Justice Bernard J. Barton considered defendants’ motions seeking dismissal for want of prosecution. The court found that the balance of justice favoured dismissal. It said it would discuss the final orders with counsel; the judgment does not record the terms of any final order.
The plaintiffs’ claim arose from quarrying and aggregate supply connected with the N18 Ennis Bypass project. They alleged that actions by the defendants led the contractor, Stabag Gama Joint Venture, to stop buying their materials and appoint another supplier. They claimed financial losses and alleged, among other things, negligence, breach of duty and unlawful interference with contractual relations. The judgment records these as pleaded claims, not findings that the defendants were liable.
The court noted that the plaintiffs accepted the delay was inordinate, but argued it was excusable because of difficulties with former solicitors. The judge found there was no evidence that the plaintiffs had made enquiries about the progress of their case, despite an undertaking given in 2009 to ensure it proceeded diligently. He concluded that the plaintiffs had failed to explain the delay and that most of it was attributable to them.
The judge also considered delay by the defendants. Clare County Council had not delivered a defence despite a court order extending the time to do so, and had not applied to compel replies to its request for particulars. The court rejected the council’s claim that the parties had agreed replies would precede its defence. It found the defendants’ delays were not insignificant, but were much smaller than the plaintiffs’ and did not amount to acquiescence.
The court said that resolving the case would substantially depend on oral evidence. More than ten years had passed since the events, and witnesses might be unavailable or their memories affected. Boxinye had ceased trading, had no employees and wished to wind up, while the council’s witnesses could also be affected by the passage of time. The judge concluded that the delay created sufficient prejudice to make a fair trial unlikely, if not impossible.
The judgment also addressed the planning status of the quarries. It found that a planning decision relied on by the plaintiffs concerned a different quarry and noted enforcement notices issued in November 2013 in relation to the quarries in the case. On the material before it, the court said it was difficult to see substance in the claim that the plaintiffs could lawfully have operated the quarries and fulfilled the supply contract.