Attempt to stop pig feed contamination case fails

A BUSINESSMAN has failed to stop an action against him arising from what a High Court judge described as the “national scandal” of the contamination of pig feed, which had led to the recall of all Irish pork products from EU markets and elsewhere in 2008 at a cost of more than €180 million.

Mr Justice Peter Charleton ruled yesterday that the case by Millstream Recycling Ltd should proceed against Gerard Tierney (75), Newtown Park Avenue, Blackrock, Co Dublin, as well as his company, Newtown Lodge Ltd, Fairview, Dublin.

He rejected Mr Tierney’s claim that no case was made out against him personally.

The judge refused Millstream’s own application for an order requiring the Garda Commissioner to discover the file of the Garda investigation into the contamination on grounds that the investigation remains active.

The Garda Commissioner had argued that dissemination of information now could undermine inquiries and because material sourced outside this jurisdiction was not discoverable.

The judge suggested the Garda Commissioner could hand over “neutral” material such as the results of forensic tests carried out at premises of Millstream and the defendants, plus analyses of relevant pig meal and pig meat samples.

If the commissioner had a “real issue” with handing over that material, he could apply to the court, the judge added.

On grounds including the “exceptional public importance” of the case, the judge also refused an application by Mr Tierney and Newtown to order Millstream to provide security for the defendants’ costs of the action.

Millstream, Clonmahon, Bunclody, Co Wexford, which claims its pig feed products were contaminated by “defective” oil supplied by the defendants, argued it was unable to pay those costs as a result of the defendants’ own alleged wrongdoing.

The defendants deny liability and also deny the oil supplied to Millstream was defective. Alternatively, if the oil was contaminated, Mr Tierney and Newtown claim that is no fault of theirs as, they allege, the oil was supplied by another company, O’Neill Fuels Ltd, Annaghmore Hill, Coalisland, Co Tyrone, which has been joined as a third party to the case.

Yesterday, stressing he was not judging the facts of the case, the judge said neither side seemed to dispute that the pig feed supplied by Millstream was contaminated. The contamination was apparently from oil used in the manufacturing process.

The judge ruled Millstream had raised several arguable claims against Mr Tierney, the credibility of which needed to be determined at trial. These included the claim that it particularly relied on his expertise in sourcing appropriate fuel and that he was guilty of negligent misstatement. Other issues included whether the oil supply relationship was with the defendants or O’Neill Fuels.

All of this was of high public importance as what happened, however it happened, was “a national scandal”, the judge said.

Addressing the security for costs application, the judge found Millstream had “a strong argument” that there was an actionable wrong by the defendants and a causal connection between that actionable wrongdoing and the practical consequence, whereby MRL was now faced with claims of more than €36 million and could not meet the legal costs of the defendants.

He would find it “impossible”, where Millstream had made out a case that the ruination of its business and reputation was caused by the defendant, to make an order that undermined or removed their right to litigate.

Noting the defendants had baldly asserted their costs would run to some €1.5 million, while Millstream had set aside a “more realistic” €200,000 for its costs, the judge said he regarded the defendants’ estimated costs as excessive for what was a “straightforward” case.