Strike-Out for Persistent Non-Payment of Adjudicated Costs Despite Stay: No EU/Constitutional Immunity and No Futile “Unless” Order

1. Introduction

This decision concerns the High Court’s power to bring long-running litigation to an end where a plaintiff persists in refusing to comply with multiple adjudicated costs orders. The plaintiff, Goode Concrete, commenced proceedings in 2010 (concerning alleged events between 2007 and 2011) against CRH plc, Roadstone Wood Limited, and Kilsaran Concrete. The claim sat within the Competition List and was framed as involving EU competition law.

Two related applications were before the Court: (i) CRH and Roadstone sought strike-out for abuse of process, and (ii) Kilsaran sought strike-out for want of prosecution and/or abuse of process. The unifying complaint was that the plaintiff had not discharged a series of costs orders (including High Court and Court of Appeal orders), and had conducted the proceedings in a manner the Court described as vexatious and abusive. A consent order of 14 December 2023 had already stayed the proceedings pending payment of the costs; nearly two years later, only token payments had been made.

The key issues were whether the Court should: (a) continue with a stay or make an “unless” order; or (b) strike out the proceedings under the Court’s inherent jurisdiction for abuse of process and/or for want of prosecution.

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited (and Their Influence)

Although a wide range of authorities was cited, the judgment distilled the controlling principles from a smaller core of cases and procedural rules. The most influential authorities—used to justify the existence, scope, and discretionary limits of strike-out/stay powers—were as follows.

(a) Non-payment of adjudicated costs and the court’s inherent jurisdiction

• Morton v. Palmer (1882) 9 QBD 89
  Cited for the long-established position (in English law, and accepted as analogous in Irish procedure) that courts may stay proceedings for non-payment of adjudicated costs. In Goode Concrete, this provided historical pedigree for the proposition that a litigant cannot indefinitely press forward while ignoring costs orders.
• Miranda v. Rosas Construtores SA [2019] 7 JIC 2907; [2019] IECA 237 (and Miranda v. Rosas Construtores SA [2020] 4 JIC 0907; [2020] IESCDET 51)
  Cited for the existence of an inherent jurisdiction to stay or strike out proceedings for abuse of process. The Court treated non-compliance with costs obligations—particularly in a broader pattern of misconduct—as fitting within “abuse” control mechanisms.

(b) Case-management and interlocutory costs logic

• Kalix Fund Ltd v. HSBC International Trust Services (Ireland) Ltd [2010] 2 IR 581; [2009] IEHC 457
  Used to align strike-out/stay for non-payment with the rationale behind case-management tools and interlocutory cost mechanisms under the Rules of the Superior Courts (including the “logic” of controlling litigation steps where costs consequences have crystallised).

(c) Unpaid costs from earlier/same-cause litigation and abuse control

• Moorview Developments Ltd v. First Active plc [2011] 3 IR 615; [2011] IEHC 117
  Cited to support the consistency of staying proceedings where costs from earlier proceedings on the same cause of action remain unpaid—reinforcing that the court’s process should not be used to relitigate while prior costs obligations are ignored.
• Farrell v. Bank of Ireland [2013] 2 ILRM 183; [2012] IESC 42
  Used in multiple ways: (i) non-payment of costs/security may be a factor supporting an abuse-of-process finding; and (ii) prolonged delay can justify an inference of increased future costs and procedural non-compliance, strengthening the case for protective intervention.

(d) Discretionary nature of strike-out/stay: “sparingly” and in “clear cases”

• Lough Neagh Exploration Ltd v. Morrice (No. 2) [1999] 4 IR 515; [1998] IESC 40
  Central to the judgment’s statement that the jurisdiction is discretionary, exercised sparingly, not as punishment but to enforce compliance and protect the administration of justice. The Court also adopted the alternative (not cumulative) tests described there in the security-for-costs context (lack of diligence; no realistic prospect of compliance; ignored time limits), applying their logic to prolonged non-compliance with costs orders and the absence of a realistic payment plan.

(e) Security for costs analogy and dismissal power

• Leneghan International Transport Limited v. Lombard Ireland Limited & Ors [2017] 5 JIC 1208; [2017] IEHC 298
  Cited for the proposition that proceedings may be struck out where ordered security for costs has not been provided (under O.26, r.4 RSC). The judgment treated persistent non-payment of adjudicated costs as analogous in its practical effect: the plaintiff is continuing litigation while not meeting court-imposed financial obligations designed to protect the opposing party and the process.

(f) The “unless” order option and the need for credible evidence

• ER Travel Limited v. Dublin Airport Authority [2020] 2 JIC 1804; [2020] IEHC 62
  Cited for the proposition that, instead of striking out, a court may issue an “unless” order with a payment deadline; and that a plaintiff seeking more time must produce evidence of a realistic plan to raise funds within a reasonable timeframe. In Goode Concrete, the Court applied that principle to refuse an “unless” order precisely because the evidential foundation (a credible plan) was missing and the plaintiff had repeatedly failed to follow through on promises.
• Superwood Holdings Ltd v. Sun Alliance and London Insurance plc [2004] 2 IR 407; [2004] IESC 19
  Cited for evidential standards: where a party asserts it can meet financial obligations (here, costs) based on future funding/sale proceeds, the court requires proper evidence rather than speculation. The plaintiff’s reliance on sale/remediation of “Ballinderry Pit” was found to fall “well short” of the requisite standard.

(g) Want of prosecution: the controlling modern framework

• Kirwan v. MJ O'Connor Solicitors [2025] IESC 21
  This was treated as the decisive contemporary authority. Barrett J. adopted Kirwan for the following propositions: (i) dismissal for want of prosecution arises from both inherent jurisdiction and O.122, r.11 RSC; (ii) O.122, r.11 supplies an objective standard for inordinate delay; (iii) after 2+ years’ delay, the burden shifts to the plaintiff, and longer delay demands more compelling justification; (iv) Article 34.1 of the Constitution implies an efficiency obligation in the administration of justice; and (v) access-to-courts arguments carry little weight where a party has had the opportunity to litigate but has failed to progress the claim. Applying these principles, the Court found the delay presumptively inordinate, the plaintiff’s explanations inadequate, and prejudice to the defendants established.

3.2 Legal Reasoning

(a) The central procedural insight: a stayed case cannot be “parked” indefinitely

A key feature was the consent stay (14 December 2023), which suspended the proceedings pending payment of costs. The Court treated the plaintiff’s near-total failure to comply over almost two years as an aggravating factor: the plaintiff had already received the benefit of indulgence (a stay rather than immediate termination), yet remained in breach. In this posture, the question ceased to be whether the plaintiff deserved more time in principle, and became whether any further court order would be meaningful.

(b) Evidence, not assertions: the “realistic plan” requirement

The plaintiff contended it could pay by leveraging value in “Ballinderry Pit.” The Court refused to act on aspiration: ownership was unclear; the alleged owning company appeared financially precarious; the site was charged; no shareholder swore an undertaking to apply proceeds to the plaintiff’s costs; and regulatory/valuation evidence was inadequate. The judgment therefore applied a practical evidential rule: where continued litigation depends on future funding, a plaintiff must prove a credible and verifiable route to compliance within a reasonable timeframe.

(c) Abuse of process: costs default plus oppressive litigation conduct

The strike-out was not grounded solely in delay. Barrett J. also identified a “sustained pattern of misconduct,” including oppressive interrogatories (previously found by him to be “the clearest” abuse), discovery failures, misleading/incomplete information, extended inactivity, resistance to cost adjudication, and repeated unfulfilled proposals. This framed the non-payment not as an isolated inability but as part of a wider misuse of the court’s processes.

(d) EU law (Art. 47 CFEU), constitutional access, proportionality, and “public interest” in competition law

The Court rejected the plaintiff’s attempt to treat EU competition-law framing as a procedural shield. It held that strike-out for abuse/non-payment is a matter of domestic procedure, and in any event Art. 47 does not entail a right to continue indefinitely while disregarding costs orders.

Similarly, constitutional access-to-courts arguments were discounted in line with Kirwan: the plaintiff had “unobstructed access” for 15 years, and its own conduct undermined any claim to further indulgence. On proportionality, the Court held that strike-out was the only proportionate response after prolonged, meaningful non-compliance; an “unless” order would merely extend proceedings “to no effect.”

Finally, the Court accepted that competition litigation can have public-interest dimensions, but held that public interest does not exempt a party from ordinary procedural duties—particularly where the court must protect finite judicial resources and ensure fair process for defendants.

3.3 Impact

• Strengthened enforceability of costs orders as procedural discipline: The judgment signals that adjudicated costs orders—especially after a consent stay—are not negotiable waypoints but binding obligations that condition continued access to the court’s process.
• Practical “evidence threshold” for indulgence: Plaintiffs seeking time to pay (or to avoid strike-out) must furnish concrete, sworn, and corroborated evidence of funding plans; speculative asset-sale narratives are insufficient.
• Competition/EU law claims are procedurally ordinary: Even when substantive rights arise under Arts. 101–102 TFEU, the case underscores that Irish courts will apply ordinary domestic procedural controls (including strike-out) to prevent abuse and to protect effective administration of justice.
• Integration of Kirwan into High Court strike-out practice: The decision demonstrates how Kirwan’s delay framework and its constitutional efficiency rationale will be operationalised in hard-edged, long-running commercial/competition cases.

4. Complex Concepts Simplified

• “Adjudicated costs orders”: costs that have been formally determined (quantified or ordered in a way requiring payment). Once adjudicated, they are not mere estimates; they are enforceable court obligations.
• “Inherent jurisdiction”: the court’s built-in power (even without an express rule) to control its own process so justice can be administered effectively—e.g., staying or striking out abusive proceedings.
• “Stay” vs “strike-out”: a stay pauses proceedings (often conditionally, e.g., until costs are paid); strike-out ends the proceedings (subject to any appeal or exceptional reopening).
• “Unless order”: a final warning order: unless a party does X by a deadline, the claim/defence is dismissed. It is used where the court believes compliance is realistically achievable; it is not used where it would be futile.
• “Want of prosecution”: dismissal because the plaintiff has not progressed the case. Under Kirwan, delay beyond two years shifts the burden to the plaintiff to justify continuation.
• “Abuse of process”: using court procedures in a way that is oppressive, vexatious, or unfair (e.g., deploying interrogatories oppressively, repeatedly failing to comply, or prolonging litigation without realistic intention/capacity to bring it to trial).

5. Conclusion

Goode Concrete affirms a robust, evidence-driven approach to procedural compliance: a plaintiff cannot keep major litigation alive while persistently refusing (or failing) to satisfy adjudicated costs orders, particularly where a consent stay has already been granted pending payment. The High Court treated speculative funding assertions as insufficient, refused a futile “unless” order, and applied Kirwan v. MJ O'Connor Solicitors [2025] IESC 21 to characterise the delay as presumptively inordinate and prejudicial. The decision is a clear warning that EU competition-law framing, constitutional access-to-courts arguments, and invocations of proportionality will not protect litigation that has become procedurally abusive, evidentially ungrounded, and unfairly burdensome to defendants and the court system.