Court rules concrete firm may call evidence dating back decades

A HIGH Court decision yesterday means Goode Concrete may be permitted to call detailed evidence of alleged serious anti-competitive practices in the cement industry dating back three decades in proceedings where it claims post-2007 below-cost selling and other unlawful practices drove it out of business.

Mr Justice John Cooke ruled yesterday that material in affidavits by the Goode side alleging anti-competitive practices prior to 2007 cannot be used in the hearing of a preliminary application by CRH plc, Roadstone Wood Ltd and Kilsaran Concrete aimed at having Goode provide €1.5 million as security for the costs of the legal proceedings against those companies.

However, that material may be admissible at the full trial of the proceedings, he stressed.

There was a clear distinction between the issues to be addressed in the security of costs issue and those in the full trial, he said. The disputed material was inadmissible for the security of costs hearing only because it was irrelevant to the issues to be determined in that hearing.

He rejected claims by the defendants the disputed material was “scandalous” in the legal sense — gratuitous or vexatious — and refused their application to strike it out of the affidavits on those grounds.

While many of the sworn statements in the disputed affidavits were admittedly hearsay “at this point”, there was much material which gave time and place details of alleged meetings, conversations and events in which named representatives of the defendant companies, or their associated undertakings, were identified and alleged to have been present as participants, he noted.

If such claims were the subject of direct testimony at the trial by those who swore the affidavits — including Goode managing director Peter Goode and chairman Tom Goode — or by persons named as the source of the information, it could not now be said such evidence will necessarily be inadmissible, irrelevant or without probative value in support of the claims made by Goode in its statement of claim, he said.

He said John Hennessy SC, for Goode, had correctly pointed out that anti-competitive conduct and collusive tendering arrangements are “always likely to be shrouded in secrecy” with the effect Goode would be in a weak position to establish such claims at least until documents were discovered.

It was perhaps understandable that individuals implicated in such claims may be outraged and scandalised that they should be so accused, he said. However, the court must be slow, at a preliminary stage, to conclude such material should be characterised as scandalous and struck out once there was some objective and prima facie connection between the facts and events alleged and the particular wrongdoing upon which the claim in the case was based.

As the High Court is designated a competition authority, it should also not prejudge the future relevance or admissibility of evidence alleging serious infringements of competition law, he added.

He was giving judgment on the application by the defendants aimed at preventing Goode Concrete making claims of pre-2007 anti-competitive practices in the hearing of the motion for security of costs.

The judge noted the plaintiff’s claim was that such evidence testified to an historical pattern of serious anti-competitive conduct and cartel arrangements in the cement and concrete markets both in Dublin and elsewhere in the state over many years.

Goode claims it should not be required to provide the €1.5m security sought. It says it cannot pay that amount because of the alleged wrongful conduct of the defendants resulting in it going out of business in February 2011.

Having ruled the disputed material is not admissible for the security for costs application but may be admissible at trial, the judge directed the security application will be heard in October.