Guinness pension dispute allowed to proceed



A former employee of Guinness is to be allowed to continue with his case against the company – in which he claims certain assurances made about his pension arrangements have not been honoured.

Mr Owen Traynor worked for Guinness for 35 years before accepting voluntary redundancy in 2002.

He claims that certain verbal assurances were given concerning the redundancy package, which were then deviated from in a follow up letter sent by Guinness.

Over the following years Mr Traynor attempted to resolve the issue amicably, utilising solicitors, an actuary and counsel.

However, there had been a delay in bringing the case before the Court, caused in part by delay on both sides, in part due to a period in 2009-2010 where it appeared the situation might be resolved amicably, and in part by Mr Traynor’s solicitors becoming seriously ill.

Guinness had therefore claimed that the proceedings should be dismissed either pursuant to r.11 of the Rules of the Superior Courts 1986 (as amended), or on the grounds of inordinate and inexcusable delay.

Further, or in the alternative, they sought an order dismissing Mr Traynor’s claim due to it breaching Guinness’ fair trial rights pursuant to Art.6 of the European Convention on Human Rights.

Delivering the High Court’s judgment, Mr Justice Max Barrett outlined the relevant rules on striking out cases.

He noted the Court of Appeal’s decision earlier this year in Gorman v. The Minister for Justice, Equality and Law Reform and Ors IECA41, which emphasised the need for the efficient despatch of proceedings.

However, he stated that “it would be a mis-reading of Gorman, a mis-interpretation of the case-law to which it refers, and a mis-application of Art.6 of the European Convention on Human Rights, to conclude that our system of court-administered justice has evolved to the extent that substantive justice would ever be sacrificed on the altar of administrative efficiency”.

Thus, the test should remain that as identified by the Supreme Court inPrimor plc v. Stokes Kennedy Crowley 2 I.R. 459, which is that even if the court has identified an inordinate and inexcusable delay, it must ask where the balance of justice lies.

Justice Barrett therefore first considered whether there had been inordinate delay.

He clarified “inordinate” as meaning “unusually or disproportionately large; excessive”, with synonyms found on Google including “excessive, undue, unreasonable, unjustifiable, unwarrantable, disproportionate, out of all proportion, unconscionable, unwarranted, unnecessary, needless, uncalled for, exorbitant, extreme, outrageous, preposterous”.

He found that this was not the case in the present proceedings, and that while Mr Traynor had been “chugging along” at matters for some time, and delays had occurred, these were a product of delays on both sides, the chance of amicable resolution, and the illness of Mr Traynor’s principal lawyers.

Therefore the delay was not inordinate, or indeed any of the terms identified above as constituting “inordinate”.

Justice Barrett also Google searched the term ‘inexcusable’, finding the definition to be “too bad to be justified or tolerated”. Again, he found the current delay did not meet this threshold.

While it was therefore unnecessary to consider the balance of justice, this was done “for the sake of completeness”.

It was found that in fact, Guinness’ arguments in this regard were “general, vague and unconvincing”.

Their solicitor had claimed that the individuals who had negotiated the retirement package had left Guinness, giving rise to difficulties, and that the delay had made it hard to procure the relevant documentation.

However, the judgment noted that Guinness had known of Mr Traynor’s concerns since relatively soon after them arising, that it defied belief that no comprehensive memorandums had been made about the issue, and that no claims had been made that the individuals responsible were dead or unavailable.

As a result, it was in the balance of justice to allow the proceedings to continue.

Guinness’ claim that their fair trial rights as contained within the Convention had been breached was also dismissed.

As an aside, Mr Justice Barrett noted that it “seems somewhat odd, albeit not legally wrong, that a convention on human rights would in any event be sought to be prayed in aid by a member of such a conglomerate against a 72-year old man who just thinks he is not being paid the, doubtless moderate, pension that he believes himself to have been promised”.

Considering the request to dismiss proceedings under r.11 of the Rules of the Superior Courts, it was found that the rule had been breached, as the proceedings had stalled without notice being given by Mr Traynor of his intention to proceed.

However, it was found that breaches of the rules could be forgiven, especially when, as in the present case, nothing of consequence arose from the delay.

As a final point, it was noted that while Guinness may be seeking to strike out the case in the current proceedings, evidence suggested that in fact they were continuing with the case, as demonstrated by their engagement with Mr Traynor’s solicitors.

Mr Justice Barrett mused that in a novel, this fact “might perhaps yield a climactic finale”. However, it was found that in life, “one possibly exuberant move in the course of litigation need not scupper the bringing of a later application”.

Thus, this did not preclude the “striking out” proceedings, albeit the application had otherwise been found to be unsuccessful.

  • by Rachel Killean for Irish Legal News