The High Court has ruled that evidence about alleged cartel activity outside the period and market at issue cannot be considered on motions for security for costs in a concrete-industry dispute. It did not strike the challenged evidence from the court record or decide whether it could be admissible at trial.
The ruling, delivered by Mr Justice Cooke on 28 July 2011, concerned affidavits filed by Goode Concrete in response to applications by C.R.H. plc, Roadstone Wood Limited and Kilsaran Concrete for security for costs. The defendants did not dispute that Goode Concrete, which ceased trading in February 2011, would be unable to pay their costs if its claim failed.
The defendants sought to have three affidavits excluded in full and specified paragraphs of a fourth affidavit ruled inadmissible or struck out as scandalous. They argued that the material was largely irrelevant to the security-for-costs issue, reached back many years and was mostly hearsay. Goode Concrete said the affidavits described a continuing pattern of alleged anti-competitive conduct and were relevant to its claim and its effort to resist security.
Justice Cooke distinguished the security-for-costs motions from the eventual trial. To resist security on the basis that alleged wrongdoing caused its inability to pay, Goode Concrete would need to link that inability to the particular wrongdoing pleaded in its claim. The claim concerned alleged below-cost selling and collusive tendering in the Dublin ready-mix concrete market between 2007 and 2010, which the company said led to losses and its closure.
The judge ruled that evidence about cement imports in the 1980s or alleged cartel activity in a related market in Galway did not establish that link. He found the challenged material inadmissible as irrelevant to the immediate motions and said it would be disregarded when those applications were heard. The court would proceed to determine the security-for-costs applications on that basis; the judgment did not decide those applications.
However, the judge refused to characterise the material as scandalous or strike it from the record. He said some allegations described meetings, conversations and events with details of time and place and alleged participants. If established through direct testimony at trial, such evidence might be relevant and admissible in support of the claim. The ruling therefore left its possible use at trial open.