ASM Alternative Feeds Ltd v The Minister for Agriculture, Food and the Marine & Ors (Approved)

Factual and Procedural Background

The Plaintiff, incorporated in 2008 and engaged in the production of animal feeds, was subject to a temporary suspension of its registration as a feed business operator by the Defendants following detection of a level of Dioxin in a sample taken from the Plaintiff's premises on or about 15 June 2011. The suspension commenced on 25 July 2011. Subsequently, on or about 3 August 2011, the Defendants acknowledged an error in the test results which had incorrectly attributed positive results of a third party to the Plaintiff. Despite this, the suspension was not immediately lifted. The Plaintiff initiated judicial review proceedings, which were undefended by the Defendants, resulting in restoration of the Plaintiff's registration on 15 December 2011. Thus, the Plaintiff's registration was wrongly suspended between 25 July 2011 and 15 December 2011.

The Plaintiff commenced plenary proceedings by summons issued on 10 May 2012 and served on 16 May 2012. The Defendants entered appearance on 14 June 2012. Notably, no statement of claim has been delivered to date, although the Plaintiff indicated in a letter dated 22 August 2014 that a draft statement of claim had been prepared. Over the ensuing years, the Plaintiff served four notices of intention to proceed (between 2014 and 2021) and sought voluntary discovery in 2015. On 5 March 2021, the Defendants brought an application to dismiss the Plaintiff's claim for want of prosecution due to inordinate and inexcusable delay, as there had been no proceedings for more than two years.

Legal Issues Presented

1. Whether there has been inordinate delay in the prosecution of the proceedings.
2. If such delay exists, whether it is excusable.
3. Whether, given inordinate and inexcusable delay, the balance of justice favors striking out the proceedings.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff advanced two excuses for the delay: serious ill health of the Principal Director of the Plaintiff company and financial difficulties.
• The Plaintiff contended that the case was primarily a "documents" case, implying limited need for witness evidence.

Defendants' Arguments

• The Defendants argued the delay in prosecuting the claim was inordinate and inexcusable as no statement of claim had been delivered in over ten years despite multiple notices of intention to proceed.
• The Defendants highlighted prejudice arising from the unavailability of key witnesses due to retirement or death, and the likely delay before trial in 2024 or later, which would impair their ability to mount a defense.
• The Defendants denied contributing to any delay.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified that the events underlying the claim occurred in 2011, and the proceedings were issued promptly in May 2012. However, the Plaintiff failed to deliver a statement of claim over a period exceeding ten years, despite issuing multiple notices of intention to proceed. This constituted inordinate delay.

The Plaintiff's excuses for delay—ill health of the Principal Director and financial difficulties—were found unpersuasive. The court noted the Plaintiff had successfully commenced judicial review proceedings requiring similar procedural steps and that the 2014 letter indicating a draft statement of claim made no mention of ill health. Financial difficulties were not sufficient to explain the failure to prosecute, especially given continued legal representation and procedural activity such as notices of intention to proceed and requests for discovery.

In balancing the justice, the court considered the prejudice to the Defendants, emphasizing the retirement or death of key witnesses involved in the original investigation and suspension decision. The anticipated delay until trial in 2024 or later compounded this prejudice. The court rejected the Plaintiff's characterization of the case as a "documents" case, highlighting the necessity of witness evidence regarding events from July to December 2011.

Given the inordinate and inexcusable delay, and the resulting prejudice to the Defendants, the court concluded that striking out the proceedings was justified.

Holding and Implications

The court ordered the dismissal of the Plaintiff's claim for want of prosecution due to inordinate and inexcusable delay.

The direct effect of this decision is the termination of the Plaintiff's claim. The Defendants were provisionally entitled to costs of the motion and proceedings. The court invited written submissions on costs before making final orders. No new legal precedent was established by this ruling; rather, it applied established principles concerning delay and prejudice in litigation.