IBB Internet Services Ltd and Others v Motorola Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 06 July 2011
• Neutral Citation: [2011] IEHC 253
• Court: High Court
• Docket Number: [No. 11862 P/2010]
• Date: 06 July 2011

IBB Internet Services Ltd & Ors v Motorola Ltd

COMMERCIAL

BETWEEN

IBB INTERNET SERVICES LIMITED, IRISH BROADBAND INTERNET SERVICES LIMTIED (TRADING AS IMAGINE NETWORKS)

AND

BY ORDER IMAGINE COMMUNICATIONS GROUP LIMITED

PLAINTIFFS

AND

MOTOROLA LIMITED

DEFENDANT

[2011] IEHC 253

[No. 11862 P/2010]

[No. 36 COM/2011]

THE HIGH COURT

PRACTICE & PROCEDURE

Particulars

Alternative pleas - Purpose of pleadings - Extent to which inconsistent pleas may be made - Particulars that must be provided if alternative pleas propounded - Whether possible to ascertain precise case being made - Whether appropriate to put forward alternative inconsistent pleas - McGee v O'Reilly [1996] 2 IR 229, Mahon v Celbridge Spinning Co. Ltd. [1967] IR 1, Philipps v Philipps (1878) 4 QBD 127, Phonographic Performance (Ireland) Ltd v Cody [1998] 4 IR 504 and Church v Adler (1953) 350 Ill App 471 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 19, r 27 - Leave to deliver amended statement of claim granted (2010/11862P - Kelly J - 6/7/2011) [2011] IEHC 253

IBB Internet Services Ltd v Motorola Ltd

MCGEE (A MINOR) v O'REILLY & NORTH EASTERN HEALTH BOARD 1996 2 IR 229 1996/13/4130

MAHON v CELBRIDGE SPINNING CO LTD 1967 IR 1

PHILIPPS v PHILIPPS 1878-79 4 QBD 127

ODGERS & GOULDING ODGERS ON CIVIL COURT ACTIONS 24ED 1996 PARA 801

PHONOGRAPHIC PERFORMANCE (IRL) LTD v CODY & PRINCES INVESTMENTS LTD 1998 4 IR 504

CHURCH v ADLER 1953 350 ILL APP 471

Mr. Justice Kelly

1 This action began on 23^rd December, 2010. At that stage, just the first two plaintiffs were parties to it.

2 Those plaintiffs alleged that by contracts dated 7^th May, 2009, 5^thJune, 2009, 13^th October, 2009 and 10^th December, 2009, made between those plaintiffs and the defendant and by a side letter agreement from the defendant to the first plaintiff dated 3^rd December, 2009, the defendant agreed to carry out works and provide services to the plaintiffs in respect of the provision of what is called a WiMax telecommunications network. It is alleged that the first two plaintiffs were induced to enter into these contractual arrangements on foot of representations made to them by the defendant concerning the capability and capacity of the network to be provided by it. The first two plaintiffs alleged that the defendant breached those contractual arrangements and was negligent in respect of the making of the representations.

3 On 28^th February, 2011, on the plaintiffs' application, the case was transferred to the Commercial List and, in addition, the third named plaintiff was joined to the action. Directions as to pleadings were given, as a result of which a Statement of Claim was delivered on 4^th March, 2011. It claims damages of in excess of €100 million against the defendant.

4 There followed no fewer than three Notices for Particulars and three Responses thereto, which, in turn, were followed by the delivery of an amended Statement of Claim. That was delivered on 11^th May, 2011. The plaintiffs indicated a desire to deliver that amended Statement of Claim when threatened with a motion to strike out the Statement of Claim in its original form as embarrassing.

5 That motion was threatened because of the defendant's contention that the content of the Statement of Claim, when compared to the three sets of Replies to Particulars which had been delivered, gave rise to much confusion. Three areas, in particular, were identified. They were:

6 (a) An allegation that the defendant was liable in damages to,inter alia, the third plaintiff on foot of an assertion that it and the other plaintiffs operated as a single economic unity. There was no such allegation contained in the Statement of Claim.

7 (b) A plea that the defendant was liable to the third plaintiff because the first and/or second plaintiff entered into the agreements with the defendant as agents for the third plaintiff.

8 (c) A plea that the third plaintiff was entitled to an indemnity from the first and/or second plaintiffs and that this gave rise to an entitlement on the part of the third plaintiff to claim damages against the defendant.

9 An examination of the Statement of Claim in its original form, which runs to some fifty pages, confirms that the complaints made by the defendant concerning its shortcomings, when compared to the particulars delivered, appear to be well founded.

10 One might have hoped that the delivery of the amended Statement of Claim would have clarified the position, particularly since by then, the case had been transferred to the Commercial List. The defendant contends that matters were, in fact, made more obscure by its delivery.

11 Five complaints are made concerning this amended Statement of Claim. They are as follows:-

12 (i) the amended Statement of Claim has maintained the plea that the third defendant was not a party to the written agreements entered into by the first and second plaintiffs;

13 (ii) despite the fact that replies to particulars made it clear that the revenue to be derived from the WiMax network (the network) came from customers connected to the network and that the great majority - if not all - of the customers connected to the network were in fact the customers of a subsidiary company of the third plaintiff which was not a party to the proceedings, it was pleaded that the income derived from customers utilising the network was earned by the third plaintiff and/or its subsidiaries;

14 (iii) the claim of the third plaintiff was advanced on the basis that the plaintiffs constituted a single economic entity;

15 (iv) by way of contrast to the "single economic entity" plea, the amended Statement of Claim also pleaded - by way of alternative - that the first and second plaintiffs had executed the written agreements, the subject matter of these proceedings, as agents for the third plaintiff; and

16 (v) the allegation that the third plaintiff was entitled to an indemnity from the first and second plaintiffs which had been advanced in the replies to particulars was not pursued in the amended Statement of Claim.

17 In addition to the above complaints the defendant makes a number of criticisms.

18 The first criticism is that the plea of "single economic entity" and the plea of "agency" which are contained in the amended Statement of Claim are not only inconsistent but, it is argued, mutually exclusive.

19 The defendant contends that it cannot understand why there are three plaintiffs in the proceedings if there they were part of a single economic entity.

20 It is also argued that the first and second plaintiffs could not be both the agents of the third plaintiff and part of a single economic entity with the third plaintiff.

21 Regardless of which version is propounded, it is argued that the first and second plaintiffs could not themselves have suffered loss or damage.

22 Because of this, further inquiries were made by the defendant by means of a notice for particulars of 12^th May, 2011. The current motion was issued because the defendant does not believe that it received an adequate response to five of those requests.

23 The first request asked the plaintiffs to identify the contracts the subject matter of the proceedings to which it is alleged that the third plaintiff was privy.

24 The second sought confirmation of whether it is the plaintiff's case that the first and second plaintiffs as agents of the third plaintiff had themselves rights or obligations under the contracts or not.

25 The third request sought confirmation that it was not being alleged that the first plaintiff had suffered any losses arising from the acts or omissions alleged against the defendant.

26 The fourth particular sought confirmation that it was not being alleged that the second plaintiff had suffered any losses arising from the alleged acts or omissions of the defendant.

27 Finally,...