The High Court has refused to dismiss Patrick and Josephine Hurley’s claim against Valero Energy (Ireland) Limited, despite finding that relevant records of retail fuel prices had been deliberately destroyed and that the plaintiffs breached their duty to preserve them.
Mr Justice David Holland ruled on 30 November 2022 on Valero’s motion under Order 31, Rule 21 of the Rules of the Superior Courts. The motion sought dismissal of the entire proceedings because of alleged failures to make discovery. The judge declined to decide on affidavit evidence that the destruction was intended to frustrate discovery, and said the evidence did not establish at this stage that a fair trial was impossible.
The Hurleys have operated the Texaco Westside Service Station on Model Farm Road in Bishopstown, Cork, since 1989 under agreements with Valero and its predecessor. They claim that between 2009 and 2016, excessive fees and fuel prices, alongside alleged failures to maintain and update the premises and equipment, damaged their business. They seek damages including more than €1 million in lost earnings or profits. Valero denies the claim and says a 2012 settlement compromised some or all of it.
The discovery dispute had narrowed to records showing the prices at which the Hurleys sold fuel between 2007 and July 2017. The plaintiffs said they had not retained records up to the end of 2014 because business documents were typically kept for six years. Valero said it could not independently establish the Hurleys’ retail prices and needed those records to test the fuel-related part of the loss claim. It had obtained records relating to fees and wholesale fuel prices, but not the missing retail price records in any meaningful degree.
The judge found that a six-year retention practice did not justify disposing of documents relevant to contemplated or ongoing litigation. At least some records had been destroyed after proceedings began, and as late as January 2021, after discovery had been requested and agreed. He found their destruction deliberate, but said it remained possible that it was incompetent rather than malicious. He made no finding about the legal advisers’ role, as that issue had not been argued.
The missing records related directly to only a part of the lost profits claim. The judge considered it disproportionate to dismiss the entire case on the incomplete affidavit evidence before him. He stressed that the decision did not prevent the trial judge from examining the discovery issue, drawing any appropriate inferences, or considering a renewed application to dismiss if warranted by evidence at trial.
The court directed the first plaintiff to provide a further affidavit detailing, as far as possible, when records were disposed of, their nature and number, and the periods they covered. It also directed that dates be set for providing Valero with the plaintiffs’ accountant’s forensic report. The judge’s provisional view was that Valero was entitled to the costs of the motion. The matter was listed for mention on 20 December 2022 to address directions and costs.