Mr Justice David Nolan found there was inordinate and inexcusable delay on the part of plaintiff Vanderiei Jacinto de Figuerdo in progressing his 2011 case against his former employer Kepak Athleague and Kepak Group Limited.
Allowing the case to proceed would place Kepak in a prejudicial position, and there is a “clear risk of memory fade” relating to an accident alleged to have occurred in 2009, the judge said.
The company had also had to ringfence funds for this claim, which gave rise to a financial burden, he added.
The judge said Mr de Figuerdo, a Brazilian national living in Ireland for at least 15 years, claimed he was assigned to work at the end of the killing pen at Kepak’s Athleague plant. In one instance, on May 6, 2009, an animal’s legs got caught in the pen and it had not been killed outright, the plaintiff claimed.
Mr de Figuerdo alleged another employee had allowed the next animal to enter the pen before this one was cleared away. He claimed the next animal began kicking and struck him on the thigh, causing him to fall backwards and suffer an injury. His claims were denied.
The judge said Mr de Figuerdo initiated his High Court personal injuries case late and then delayed in progressing it.
In 2021, Kepak issued its motion asking the court to dismiss the case for want of prosecution. It claimed several people who had direct knowledge of Mr de Figuerdo’s employment, practices, training and supervision had left the company.
Kepak said it had enquired about their whereabouts but could not find them, so it was not able to secure their attendance to give evidence at a trial. The judge said more than a decade had passed since Kepak asked the plaintiff to provide his medical records, which had still not been disclosed. Mr de Figuerdo’s solicitor submitted there had been no inordinate delay, but if inordinate delay occurred, it was excusable.
Mr Justice Nolan said there was very significant delay between the proceedings being issued and Kepak’s filing of its defence in 2017. However, he would have expected matters such as document exchanges to be at the “forefront” of Mr de Figuerdo’s solicitor’s mind, but “little or nothing was done”.
He rejected a “novel” contention from Mr de Figuerdo’s solicitor he should take into account the fact the defence pleaded delay and the solicitor then sought to notify his professional indemnity insurers. The judge said it was as if this caused the solicitor to “freeze”, and no steps were taken after this until Kepak’s motion to dismiss was issued in 2021. The solicitor accepted he had a contractual obligation, under Mr de Figuerdo’s retainer, to prosecute the proceedings, but from a “personal point of view was left in a difficult position” whereby his professional indemnity insurers had indicated no further steps should be taken in the case without their consent.
Mr Justice Nolan said this position “clearly represents a conflict of interests” between the solicitor’s personal position and his obligation to act according to his retainer. The judge said he did not understand why, once the solicitor realised there was a potential conflict, he did not ask another solicitor to take over the file.
He was satisfied this was not a matter that could excuse the delay.
Overall, he found the delay on the part of the plaintiff had been inexcusably inordinate and the balance of justice favoured dismissing the case.
