The Court of Appeal has dismissed an appeal by Torc Grain and Feed Limited seeking to have a claim by William Connolly and Sons Ltd, trading as Connolly’s Red Mills, dismissed for delay. The court found the plaintiff’s delay in prosecuting the case was inordinate and inexcusable, but held that the balance of justice did not favour ending the proceedings.
The judgment, delivered by Ms Justice Irvine on 30 November 2015, concerned only the delay issue. The defendant did not pursue its appeal against the High Court’s refusal to dismiss the claim on the separate ground that it was bound to fail. The Court of Appeal therefore did not determine the underlying claim about the supply of groundnut or whether it was contaminated.
The claim concerns an oral agreement in September 2002 for 400 tonnes of groundnut. The consignment was delivered to a warehouse in New Ross. The plaintiff collected 29 tonnes on 22 October and later used it to make horse feed. After traces of morphine were found in the urine of racehorses that had competed in October and November 2002, some horses were disqualified. The plaintiff rejected the remainder of the consignment, alleging it was unfit for purpose. The sample retained from the 29 tonnes was misplaced and never analysed.
The plaintiff issued its plenary summons on 17 September 2008, at the outer limit of the six-year statutory period, served it nearly a year later and delivered its statement of claim in December 2010. The judgment describes the statement as delivered on 7 December 2010 in the chronology, and gives 14 September 2010 elsewhere. Justice Irvine found the post-issue delay, including the time taken to serve the summons and deliver the statement, inordinate and inexcusable. She said the plaintiff’s involvement in other litigation and investigations did not justify the delay.
However, after pleading that the delay had caused irreparable prejudice, the defendant engaged in the case for years by seeking particulars and participating in discovery. Justice Irvine considered that conduct amounted to acquiescence and had led the plaintiff to spend further time and money pursuing the action. She also found no established causal link between the asserted prejudice and the litigation delay: the lost sample and concerns about testing the stored consignment arose independently of the time taken to prosecute the case.
The court dismissed the appeal, leaving the claim to proceed to trial. It emphasised that its decision rested on the particular circumstances, including the defendant’s conduct after 2010, and did not signal a softer general approach to litigation delay.