The Court of Appeal has dismissed a haulage contractor’s appeal against the High Court’s decision to dismiss his claim over an allegedly defective cement mixer truck because of delay.
In an ex tempore judgment delivered on 25 February 2020, Mr Justice Noonan said the High Court judge’s conclusion that the balance of justice favoured dismissal could not be impugned. Justices Costello and Collins agreed. The appeal concerned the dismissal of the claim on delay grounds, not a rehearing of the dispute about the vehicle’s condition.
The appellant bought a new Hino 700 Series 8x4 cement mixer lorry in September 2005 for €145,770. He alleged that problems began within days and continued over the following years. After the gearbox failed for a second time in August 2008, he arranged for a motor assessor to inspect the vehicle. It was repossessed in March 2009, and proceedings were issued in September that year.
The respondent delivered its defence in February 2010. The appellant’s replies to particulars, requested earlier, were not delivered until February 2012, about 26 months later. They included claims of €12,500 for lost earnings, €420,000 for lost contract amounts or loss in value, €3,000 for removing solidified concrete, and €9,465 for repairs. After those replies, no further step was taken until the respondent brought its dismissal motion in November 2016.
The appellant’s solicitor attributed the delay in providing particulars to the appellant working abroad and difficulties calculating losses with his accountant. The solicitor also argued that the respondent had not tried to advance the case. The respondent’s financial controller said delays and the departure or retirement of key personnel had impaired its ability to defend the claim, and that the first defendant’s liquidation affected any potential indemnity.
The Court of Appeal accepted that the 26-month delay was inordinate and inexcusable, and said the later period of about four and a half years was also inordinate and unexplained. It rejected the argument that the respondent’s inaction amounted to acquiescence: the plaintiff bore the general responsibility to progress the case, and the respondent was not obliged to bring it to trial.
The court said the lengthy passage of time created prejudice, particularly because liability and the amount of any loss would depend substantially on oral evidence about events years earlier. It therefore upheld the High Court’s dismissal and dismissed the appeal. The judgment did not decide whether the truck was defective or determine the underlying damages claim.