The High Court has dismissed proceedings brought by Rodenhuis and Verloop B.V. against HDS Energy Limited, finding that the claim had been delayed in an inordinate and inexcusable way and that the balance of justice favoured ending it.
Mr Justice Clarke delivered the judgment on 10 December 2010. The plaintiffs sought money they said was due for work connected with the design and installation of boilers. HDS had filed an affidavit setting out a prima facie defence after the case began by summary summons, and the proceedings were remitted to a plenary hearing.
HDS applied to have the case dismissed for delay and also sought security for costs. The judge considered the dismissal application first. He applied a two-stage test: whether the delay was inordinate and inexcusable, and, if so, where the balance of justice lay.
The judgment identified an unexplained 18-month gap before the plaintiffs brought a motion for judgment after HDS entered an appearance. HDS contributed to some later delay, including time taken to file its defence. But the judge said much of the delay after that was attributable to the plaintiffs, including their limited response to HDS’s inquiries about the effect of the plaintiffs’ receivership in the Netherlands on their capacity to continue the case.
The plaintiffs relied on related proceedings concerning alleged defective boiler work as a partial explanation for the delay. The judge found that the existence of those proceedings did not justify allowing this case to go dormant without seeking agreement to a stay or asking the court for directions.
The underlying dispute concerned whether additional work could be charged separately under the contract, and an allegation by HDS that the work was defective. The judge found material prejudice to HDS. He said the contractual dispute could turn on what was said at meetings 13 or 14 years before trial, despite minutes of those meetings. He also noted that witnesses relevant to the workmanship issue had died, while recognising that one witness had died soon after the proceedings began and that this loss could not be attributed to the plaintiffs’ delay.
The court dismissed the proceedings. It did not grant security for costs. The judge said that, even if the dismissal decision were wrong and the case continued, the available information about the Dutch receivership gave no practical basis to require security because costs would rank ahead of other claims and sufficient funds appeared to be available.