IBB Internet Services Ltd and Others v Motorola Ltd

CourtHigh Court
JudgeMr. Justice Charleton
Judgment Date19 November 2013
Neutral Citation[2013] IEHC 541
Date19 November 2013

[2013] IEHC 541


11862 P/2010
IBB Internet Services Ltd & Ors v Motorola Ltd






RSC O.63A r6(1)(IV)(ii)

RSC O.31 r1

RSC O.63A r9

RSC O.31 r11




LYELL v KENNEDY (NO 3) 1884 27 CH D 1

DUNCAN v GOVERNOR OF PORTLAOISE PRISON 1997 1 IR 558 1997 2 ILRM 296 1997/3/872

Companies - Interrogatories - Error - Procedure - Examination of witness prior to trial - Breach of contract - Negligence - Misrepresentation - Broadband internet network - Delay in rollout

Facts: The plaintiffs sought damages for breach of contract, negligence and misrepresentation against the defendant, Motorola Limited. This was due to a delay in the rollout of a broadband internet network and the dysfunction of that network. On the 13 th of October, 2009, a written contract known as a ‘master services agreement’ was signed between Irish Broadband Internet Services Limited and Motorola Limited. This was later novated to IBB Internet Services Limited. Additionally, the plaintiffs asserted that Imagine Communications Group Limited entered into an oral collateral agreement with the defendant. The Court determined the key issues of the proceedings and noted that, in answering them, the parties were obliged to interrogate this in a ‘spirit of cooperation’. Some of these issues highlighted included whether the master agreement was the whole of the agreement between the parties; whether there was a collateral agreement; the party the agreement was made with; the basis of the assertion that the plaintiffs were an economic entity; and the requirements of the contract.

The Court noted that Interrogatories were served on the 7 th of May 2013. The original reply by the plaintiffs was on 4 th June 2013. On the 20 th of June, the solicitors for the defendant stated that some of the replies provided by the plaintiffs had to be incorrect. The plaintiffs agreed via reply on the 2 nd of July. A new document was drafted and served on the 15 th of July. It was sworn by the secretary of the companies and referred to certain ‘typographical and referencing issues’ contained in the prior affidavit and stated that the purpose of the document was to correct such issues. Further correspondence followed and on the 22 nd of July a motion was brought returnable to the 25 th of July, heard by the Court on the 31 st of October which sought that the secretary of the plaintiff companies be required to answer the interrogatories delivered. As a consequence, the plaintiffs set out a later a document showing a later set of answers displaying both the original and the corrections.

By letter dated the 30 th of August 2013, the defendants made the case that they wished to examine the company secretary. Order 31, Rule 11 of the Rules of the Superior Court sets out that if any person interrogated omits to answer or answers insufficiently, the interrogating party may apply to the Court for an order requiring an answer and for further examination. Held by Charleton J., this rule was inapplicable. The company secretary was held to have sufficiently answered the questions. It was also held that the averment on affidavit by the plaintiffs that the answers provided following their correction was to be relied on as fact and that any question as to how the errors arose was to be a matter for cross-examination at trial. The Court was satisfied that any circumstances where a party would be granted leave to cross-examine a witness in advance of the trial was ‘outside the text of the rule’ and ‘extremely rare’. It was further stated by the Court that where errors in interrogatories occur, the leave of the Court was not required and that the general examination of a witness before a trial was not to be permitted.

The motion was therefore refused with costs.


1. This action was commenced by plenary summons on 23 December 2010. While the plaintiffs are separate legal entities, they claim to be a single economic entity and assert the right to be treated as such in law and in fact. They claim damages for breach of contract and in negligence and in misrepresentation against the defendant due to alleged delay in the rollout of a broadband Internet network and in the dysfunction of such portion of that network as was provided. The relevant contract was negotiated between March and October 2009 and was to become operational in December of that year. The parties agree that on 13 October 2009 a written contract, called a master services agreement, was signed between the second named plaintiff and the defendant and that this was later novated to the first named plaintiff on 10 November 2009. In addition, the plaintiffs allege that the third named plaintiff entered into a collateral agreement, apparently oral, with the defendant. Representations and warranties seem crucial to the case made by the plaintiffs as to the suitability and functioning of the network. The main contract of 13 October 2009 contains clauses limiting liability and confining the relationship between the parties to contract in the terms as therein set out. The series of sites over which this network was to operate was to be supplied by the defendant to the plaintiffs in groups of 15, amounting eventually to 120 sites actually supplied, and there were 5 others included in a test module. In all, 402 sites were projected ultimately. Provisional acceptance of the sites under a term of the written contract is alleged by the defendant to be a warranty of satisfaction. Of these there are said to be 51 signed acceptances, on behalf of which plaintiff or on behalf of all plaintiffs, together with 74 deemed acceptances by virtue of the elapse of time. In addition, the contract provided for a final acceptance of which 31 were signed, in the same context, and 94 are deemed. The terms of the contract seem to be such that unless a batch of 15 sites is ordered, by whichever of the plaintiffs is responsible, there is no obligation on the defendant to supply anything or on the plaintiff to order anything. Because of dissatisfaction, whether for good reason or not, no sites have been ordered since July 2010.


2. It is more than unusual for a case entered into the commercial list to be three years old and not to have been tried. This case has not even proceeded to the stage of discovery. The plaintiffs claim to have been bombarded by procedural motions, of which they say this is the latest. The defendant claims that by reason of pleading alternate facts, there has been a necessity for the plaintiffs to recast the statement of claim on three occasions, the current version being the fourth. There are three prior written judgement of the High Court on this claim about this very lengthy statement of claim; of Kelly J on 6 July 2011, of Clark J on 9 November 2011 and of McGovern J of 12 October 2012. In addition, the High Court has refused the defendant security for costs, which ruling has been appealed to the Supreme Court and is awaiting judgement. It is impossible to feel satisfaction with the progress of this case even since that date of the last version of the statement of claim; the fourth. The Court is entitled to emphasise that, whatever the rights and wrongs of this series of pre-trial manoeuvrings, about which no comment is made, the parties are under a duty to the court to prepare a case for hearing through cooperating with each other in aid of the fundamental obligation of identifying the issues to be tried and making the case ready for hearing.


3. Fundamental to the management of any case is that the Rules of the Superior Courts are to be used to advance what is in issue and to facilitate a fair hearing. The parties to any proceeding are expected by the court to cooperate to bring the case to trial. Central to that fundamental obligation is defining what the cause is about. Increasingly, in complex cases issues are being lost sight through concentration on peripheral orders as an end in themselves. The spectre of Jarndyce v Jarndyce is one that no court should forget. Discovery motions seem to be increasingly self justifying, rather than an aid to litigation; this despite the repeated warnings of the Supreme Court against oppressive discovery. Yet, nothing has changed. Statements of claim now increasingly plead evidence and defences can be read with mystification as to what the answer to a claim is beyond denial. Hogan J has rightly, in Armstrong v Moffatt [2013] IEHC 148, expressed frustration at the futility and waste of costs occasioned by endless notices for particulars in personal injury cases. In the commercial list, issues central to the disposal of the cause are to be identified by clear and precise pleadings and the proper use of pre-trial procedures in aid of appropriate notice as to facts. The late Rory Brady SC used to finish opening a case by concisely telling the judge the numbered points of law and fact necessary to the decision. This lucidity must be brought to bear on every case. If the parties do not do so, the judge may, and should, act. Order 63A rule 6(l)(IV)(ii) provides that the judge may of her or his own motion and "after hearing the parties … give … directions to facilitate the determination of the proceedings … fixing...

To continue reading

Request your trial
8 cases
  • Ryanair Ltd v Van Zwol
    • Ireland
    • High Court
    • 26 May 2016
    ...element of inbuilt error. Discovery is a means to an end, not an exercise in perfection. [a]As Charleton J. notes in IBB Internet Services Limited v. Motorola Limited [2013] IEHC 541, para.2, ‘[T]he parties [to a case] are under a duty to the court to prepare a case for hearing through coop......
  • Thomas Talbot v Hermitage Golf Club and Others
    • Ireland
    • Supreme Court
    • 9 October 2014
    ...40.3 TUOHY v COURTNEY 1994 3 IR 1 1992/13/4268 IBB INTERNET SERVICES LTD & ORS v MOTOROLA LTD UNREP CHARLETON 19.11.2013 2013/25/7460 2013 IEHC 541 223/2014 - Denham Hardiman Charleton - Supreme - 9/10/2014 - 2014 53 15560 2014 IESC 57 1 Judgment delivered on the 9th day of October, 2014, ......
  • IBB Internet Services Ltd v Motorola Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 7 December 2015
    ...1 These are appeals and cross-appeals from the decision of the High Court (Barrett J.) delivered on 3rd February 2015, IBB Internet Services Ltd. v. Motorola Ltd. [2015] IEHC 54, dealing with applications for discovery made by both the plaintiffs and the defendant in these proceedings. Both......
  • OTE International Solutions S.A. t/a OTE Globe S.A. v Baskaran Allirajah and Others
    • Ireland
    • High Court
    • 1 April 2014
    ...BOARD v RYAN & ORS 2008 2 IR 816 2007/44/9243 2007 IEHC 428 IBB INTERNET SERVICES LTD & ORS v MOTOROLA LTD UNREP CHARLETON 19.11.2013 2013 IEHC 541 ARMSTRONG v MOFFATT (T/A BALLINA MEDICAL CENTRE) & IRWIN UNREP HOGAN 28.3.2013 2013 IEHC 148 Company Law – Fraud - O. 19, r. 7 of the Rules of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT