Contaminated horse feed case allowed to proceed to trial despite inordinate and inexcusable delay



The Court of Appeal has allowed a case concerning contaminated horse feed to proceed to trial despite the inordinate and inexcusable delay of the plaintiff, finding that the balance of justice did not favour the dismissal of the proceedings.

The plaintiff company, William Connolly and Sons Ltd Trading as Connolly’s Red Mills, supplies and distributes foodstuffs within the horseracing industry.

In September 2002, the plaintiff purchased 400 tonnes of groundnut from the defendant, Torc Grain and Feed Limited, which was then mixed with other ingredients and sold to racehorse owners and trainers.

Traces elements of morphine were subsequently found in the urine of a number of racehorses who had eaten the plaintiff’s feed. This resulted in the horses’ disqualification, with significant legal and public relation consequences for the plaintiff.

In January 2003, the plaintiff put the defendant on notice that it would be seeking a full indemnity in respect of any claims made against it by trainers and owners whose horses were facing or had suffered disqualification as a result of the traces elements of morphine.

It also notified the defendant that it would be seeking to recover all costs it had and would incur in relation to complaints being considered by the Turf Club and the Jockey Club with regards to the contamination.

There then followed a series of pre-trial legal interactions between the two parties characterised by delays, to the extent that the plaintiff only served notice of trial in April 2014.

The defendant subsequently sought the dismissal of the proceedings due to inordinate and inexcusable delay, which was rejected by the High Court.

The current judgment is the result of the defendant’s appeal against this decision. Counsel for the defendant in particular argued that “the delay between the sale of the goods in September, 2002 and the date of the issue of the plenary summons in September, 2008 was inordinate and inexcusable and had not been justified”.

“Further, the post commencement delay of five and a half years to the date of the service of the notice of trial, particularly having regard to the pre-commencement delay, was, he submitted, also inordinate and inexcusable.”

It was claimed that such delays prejudiced the defendant due to nature of the case as highly contentious and relying on the recollections of witnesses, and due to the lack of samples from the original consignment of horse feed.

While the counsel for the plaintiff accepted that there had been delay, he noted that the plenary summons had been issued within the permitted statutory time, and that delay was excusable due to the fact that the plaintiff had been busy with other extensive litigations relating to the contaminated feed, and with ensuring the survival of its business.

Furthermore, it was noted that the defendant had failed to make any real motion to have the case dismissed, and instead had continued to prepare for trial.

Finally, it was argued the prejudices argued by the defendant were largely unrelated to the delay in the prosecution of the action, and that the defendant had been aware of the claim from the beginning, and had therefore had ample opportunity to prepare.

Delivering the judgment, Ms Justice Irvine outlined the relevant principles to be applied when considering whether to dismiss proceedings on the grounds of inordinate and inexcusable delay as those contained within Rainsford v. Limerick Corporation 2 I.L.R.M 561, which places the onus of proof on the party who asserts the delay.

She noted that once this burden of proof had been discharged, the Court would then consider whether the balance of justice lies in favour or against the case proceeding.

She cited Primor plc v. Stokes Kennedy Crowley 2 I.R. 459, in which the Rainsford principles were approved and expanded by Hamilton CJ, and in which guidance is included on how to determine the balance of justice.

Relevant factors included the conduct of both parties, whether the party claiming delay had acquiesced to the delay, and whether the party claiming delay had induced the other party into incurring further expenses in pursuing the action.

She also highlighted more recent case law which allowed consideration to be given to any significant delay prior to the issue of the proceedings, as well as to whether the party had waited until relatively close to the end of a limitation period to issue their proceedings. Cases included Hogan v. Jones 1 I.L.R.M. 512, Cahalane and Another v. Revenue Commissioners and others IEHC95 and McBrearty v. North Western Health Board IESC27.

She noted that the courts had become more aware of the need to ensure expedient proceedings, both by reason of Article 6.1 of theConvention for the Protection of Human Rights and Fundamental Freedoms, and by reason of Article 34.1 of the Constitution.

As a result, she found that “the court itself must, because of its constitutional mandate, by its own conduct ensure that litigation is completed in a timely fashion”.

Turning to the facts of the case, she found that the plaintiff was guilty of inordinate and inexcusable delay.

Adopting the words of Fennelly J. in Dekra Eireann Teo. v. Minister for the Environment IESC 25, 2 IR 270, she noted that the proceedings relate to “decisions in a commercial field where there should be very little excuse for delay”.

Further, the late start by the plaintiff in issuing the plenary summons and the delay in delivering the statement of claim meant eight years had elapsed between the date of the contract at issue and the date upon which the claim was fully particularised.

No valid reason was found for the delay, indeed, it was noted that the plaintiff had substantial legal backup to deal with the consequences of the contaminated feed.

However, the Judge found that the balance of favour did not justify the dismissal of the proceedings.

While she noted the recent criticisms of courts for their role in developing and maintaining a culture of delay, she found that the defendant had acquiesced in the delay, and had engaged with the proceedings in a relaxed and leisurely way until the notice of trial was served in April 2014.

In doing so, it led the plaintiff to believe that it would meet the claim on its merits, causing the plaintiff to spend a great deal of time and money in engaging with litigation long past the point at which the application to dismiss ought to have been made.

Furthermore, the Judge was not satisfied that the defendant had shown a causal connection between the prejudice suffered and the delay. As a result, the appeal was dismissed.

As a final point, the Judge noted: “Independently of these particular facts, this judgment should not be understood as heralding any softening in the approach which has been adopted by the courts in more recent times to ensure that the culture of delay in litigation that was so prevalent in this jurisdiction for so many years is brought to an end.”

  • by Rachel Killean for Irish Legal News