Trouw (UK) Ltd v. Shamrock Farm Enterprises Ltd

Plaintiff’s claim established: ‘There is no dispute that the defendant ordered the goods specified in the invoices. There is no dispute that the goods were delivered by the plaintiff to the defendant.’ [24]

First National Commercial Bank v. Anglin [1996] 1 IR 75, adopting Banque de Paris v. DeNaray [1984] 1 Lloyd’s Law Rep 21, on threshold for leave to defend applied: ‘The mere assertion in an affidavit of a given situation which was to be the basis of a defence did not of itself provide leave to defend; the Court had to look at the whole situation to see whether the defendant had satisfied the Court that there was a fair or reasonable probability of the defendants having a real or bona fide defence.’ [15] ‘fundamental question to be addressed is whether there is a fair and reasonable probability of the defendant having a real bona fide defence, in law, on the facts or both’. Defendant ‘must, accordingly, lay a basis on which the court can conclude that there is in truth an issue to be tried, and that that issue is neither simple nor capable of being easily determined’ [19]. National Westminster Bank plc v. Daniel [1993] 1 WLR 1453 [15], Aer Rianta cpt v. Ryanair Ltd [2001] 4 IR 607 [16], Harrisrange Ltd v. Duncan [2003] 4 IR 1 [17], Allied Irish Banks v. Killoran [2015] IEHC 850 [18], Feniton Property Finance DAC v. McCool [2022] IECA 217 at [11], Promontoria (Aran) Ltd v. Burns [2020] IECA 87 and Prendergast v. Biddle (Unreported, Supreme Court, 31 July 1957) [19] applied.

1. 2.1

   IBRC Ltd v. McCaughey [2014] 1 IR 749 on mere assertion applied: No arguable defence in ‘mere assertion unsupported either by evidence or by any realistic suggestion that evidence may be available, or which comprise facts which are in and of themselves inconsistent or contradictory.’ [19]

Moohan & Bradley v. S&R Motors (Donegal) Ltd [2008] 3 IR 650 on cross-claims applied; Fabri Clad v. Stuart [2020] IECA 247 and Castletown Foundation Ltd v. Magan [2022] IECA 218 affirmed:

1. ‘it is firstly necessary to determine whether the defendant has established a defence as such to the plaintiff’s claim. In order for the asserted cross-claim to amount to a defence as such, it must arguably give rise to a set off in equity and must, thus, stem from the same set of circumstances as give rise to the claim but also arise in circumstances where, on the basis of the defendant’s case, it would not be inequitable to allow the asserted set off;’
2. ‘if and to the extent that a prima facie case for such a set off arises, the defendant will be taken to have established a defence to the proceedings and should be given liberty to defend the entire (or an appropriate proportion of) the claim …;’
3. ‘if the cross-claim amounts to an independent claim, then judgment should be entered on the claim but the question of whether execution of such judgment should be stayed must be determined in the discretion of the court …’ [20]

Castletown Foundation Ltd v. Magan [2022] IECA 218 at [17] on agreed exclusion of set-off applied: ‘If the parties have agreed that there will be no set off, the court should give effect to that choice.’ [22]

Same facts required: ‘In order to establish a defence of set-off, the defendant would have to establish that the cross claim arises out of the same facts as the plaintiff’s claim against the defendant.’ [27]

1. 5.1

   General Conditions of Sale exclusion: ‘parties agreed that if there was a cross-claim arising out of the sale and delivery of goods by the plaintiff to the defendant, the defendant could not use it by way of set off against a claim for the price of the goods, but would have to pursue it by way of a separate action.’ [28]

2. 5.2

   General Conditions of Sale notice periods: ‘time periods in the general conditions of sale within which a complaint must be made if there is a problem with the quality of the goods or the timing of the delivery thereof. No such complaints were made within the time periods prescribed in the general conditions of sale.’ [29]

Re-bagging claim not connected: ‘plaintiff’s claim is for the price of goods sold and delivered between March and December 2023. The re-bagging claim, in respect of which there is no concrete evidence, allegedly arose in 2020.’ [30]

1. 6.1

   Bags claim mere assertion: ‘no documentary evidence referring to the alleged oral agreement, nor is there any evidence of the defendant having sought a payment or credit on foot of this alleged agreement. It seems to have been first put forward when the plaintiff sought summary judgment in these proceedings.’ [32]

Loss of profits mere assertion: ‘I find that there is no credibility in this claim.’ [34] ‘I find that its purported claim in this regard is a mere assertion of a state of facts and nothing more.’ [44]

1. 7.1

   No complaints of late delivery: ‘defendant has not provided any credible evidence of complaints by it to the plaintiff in relation to the delivery of produce by the plaintiff to the defendant.’ [34]

2. 7.2

   No customers identified: ‘no evidence that any of the defendant’s customers have actually left them due to supply or delivery issues. No such customers have been identified.’ [37]

3. 7.3

   Unaudited accounts: Accountant’s letter ‘amounts to little more than a statement by him that the turnover dropped due to loss of customers because that is what he was told by his client.’ [39]

4. 7.4

   Counterclaim never pursued: ‘It is telling that almost three years after the defendant apparently consulted its lawyers, nothing has been done to proceed with any claim in that regard.’ [41]

Timing of counterclaim relevant: ‘One would have thought that if the defendant had consulted its lawyers in January 2024 about its counterclaim in this regard, and if it had been advised that it had a good case in that regard, a strongly worded defence and a particularised counterclaim would have been filed before issuance of the plaintiff’s motion for summary judgment.’ [43]

Order for liquidated sum made: Judgment for €531,734.26 [45].

Execution stayed for 15 months: ‘To prevent any possible injustice, I will place a stay on the execution of the judgment for 15 months from the date hereof to enable the defendant to pursue whatever legal proceedings it may be advised are maintainable against the plaintiff.’ [46]

1. 10.1

   Liberty to apply to lift or extend: ‘There will be liberty to both parties to apply for the lifting or extension of the stay if necessary.’ [46] Stays cover any appeal, ‘save that in those circumstances any application to lift or extend the stay should be made to the Court of Appeal.’ [48]

Presumptive costs: ‘As the plaintiff has been entirely successful on this application, the costs of the action, to include the costs of this application and the costs of submissions are awarded to the plaintiff’ [47], stayed for 15 months [47].