The High Court has refused Calor Teoranta’s application to dismiss a contract claim brought by Brian Johnson, trading as Ace Engineering, over the termination of a services arrangement in 2009. The court found 28 months of delay inexcusable but held that the balance of justice favoured allowing the case to proceed.
The defendant sought dismissal for want of prosecution and/or inordinate and inexcusable delay. The motion concerned inactivity between early 2014 and June 2017, when Johnson’s solicitors served a notice of intention to proceed. The judge treated that period as three and a half years, or 42 months.
Johnson said replies to the defendant’s 2014 request for further particulars took time because his solicitors had to work with his accountant to assemble information about the losses claimed. He also described the sudden death of his daughter in September 2015 and the ongoing inquest into her death. The judge considered that the loss excused 12 months of inactivity. Along with two months allowed for preparing the replies, 14 months of the delay was excusable; 28 months was not.
The underlying claim concerns an alleged oral services agreement made in 1974 between Calor and Johnson’s predecessor, Mr Duncan. Johnson says he acquired Duncan’s business, including the benefit of the contract, under an agreement in March 2007, and that the arrangement continued until Calor terminated it in June 2009. Calor pleads that its consent to the transfer was neither sought nor given.
Calor argued that delay could impair evidence from former employees about the alleged agreements and the 2009 termination. The judge noted that two relevant employees had retired, but said their retirement alone did not establish prejudice: the defendant had known from the outset which witnesses it might need, and there was no suggestion they were unavailable to give evidence. The judge also considered that the issues did not appear especially complex and that the agreement’s earlier history already presented evidential difficulties, including the absence of a written contract.
The ruling decides only the defendant’s dismissal motion. It does not determine whether the contract existed, whether consent to its transfer was required or obtained, or whether Calor breached it. The judge concluded the defendant was unlikely to suffer even moderate prejudice from potential witness unavailability and that the balance of justice favoured allowing the claim to proceed.