IBB Internet Services Ltd v Motorola Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 02 October 2012
• Neutral Citation: [2012] IEHC 567
• Court: High Court
• Docket Number: [No. 11862 P/2010]
• Date: 02 October 2012

[2012] IEHC 567

THE HIGH COURT

[No. 11862 P/2010]

IBB Internet Services Ltd & Irish Broadband Internet Services Ltd (both t/a Imagine Networks) & Anor v Motorola Ltd

No Redaction Needed

COMMERCIAL

BETWEEN

IBB INTERNET SERVICES LIMITED, IRISH BROADBAND INTERNET SERVICES LIMITED BOTH (TRADING AS IMAGINE NETWORKS) AND IMAGINE COMMUNICATIONS GROUP LIMITED

PLAINTIFFS

AND

MOTOROLA LIMITED

DEFENDANT

AER RIANTA CPT v RYANAIR LTD 2004 1 IR 506 2004/1/158 2004 IESC 23

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519

THOMAS MCINERNEY & CO LTD, STATE v DUBLIN CO COUNCIL 1985 IR 1 1985/2/522

POWER SUPERMARKETS LTD T/A QUINNSWORTH & QUINNSWORTH LTD v CRUMLIN INVESTMENTS LTD & DUNNES STORES (CRUMLIN) LTD UNREP COSTELLO 22.6.81 1981/11/2038

DELAHUNTY v PLAYER & WILLS (IRL) LTD & ORS 2006 1 IR 304 2006/15/2995 2006 IESC 21

PRACTICE AND PROCEDURE

Strike out

Failure to comply with court order - Motion by defendants to strike out for failing to comply with order - Plaintiffs ordered to clarify statement of claim - Allegation that claim bound to fail - Arguable point - Dismissal of proceedings pursuant to inherent jurisdiction of court - Inconsistencies between statement of claim and affidavit -Whether compliance with court order - Whether claim bound to fail - Whether arguable point - Whether appropriate to strike out claim - Aer Rianta Cpt v Ryanair Ltd [2004] IESC 23, [2004] 1 IR 506 and Delahunty v Player and Wills (Ireland) Ltd [2006] IESC 21, [2006] 1 IR 304 applied - Allied Irish Coal Supplies Ltd v Powell Duffryn International Fuels Ltd [1998] 2 IR 519; The State (McInerney) v Dublin County Council [1985] IR 1 and Power Supermarkets Ltd v Crumlin Investments Ltd and Dunnes Stores (Crumlin) Ltd (Unrep, Costello J, 22/6/1981) considered - Relief refused (2010/11862P - McGovern J - 2/10/2012) [2012] IEHC 567

IBB Internet Services Ltd v Motorola Ltd

Facts: The parties had been engaged in litigation regarding to substantial sums claimed in damages by the plaintiffs. Previous statement of claims had been struck out, and the current statement was the fourth version. Following an earlier order by Clarke J requiring the plaintiffs to clarify how the sum of damages claimed could be calculated, the defendant contended the latest claim did not comply with that order. The defendant now applied for the latest statement of claim to be also struck out.

Held by McGovern J, that the Court would not make any comment on the likely success of the pleaded claim but it would be held to suffice for compliance with the earlier order of Clarke J. The defendant had raised a number of issues regarding inconsistencies with affidavit evidence and the latest statement of claim, but the Court felt these were issues best resolved by the trial judge. They could not be said to demonstrate clearly the claim was bound to fail.

The application would therefore be refused.

Mr. Justice Brian J. McGovern

1 This is an application brought by the defendant to strike out the plaintiffs' statement of claim by reason of the alleged failure of the plaintiffs to comply with an order of the court made by Clarke J. on 9^th November, 2011. It is claimed that the statement of claim delivered on 30^th November, 2011 failed to provide proper particulars of the loss claimed by the first and second named plaintiffs. The defendant also claims an order pursuant to the inherent jurisdiction of the court dismissing the proceedings as an abuse of process or in the alternative on the grounds that the proceedings are bound to fail. In the alternative, the defendant seeks an order dismissing the claim of the first named plaintiff on the grounds that the claim is bound to fail and/or a similar order in respect of the second named plaintiff on the same ground and/or an order dismissing the claim of the third named plaintiff on the grounds that it is bound to fail.

2 The claim being made by the plaintiffs is a substantial one in which they seek sums in excess of €138 million.

3 The statement of claim in respect of which the motion is brought is the fourth statement of claim delivered in these proceedings. This arose after the third statement of claim was struck out by order of Clarke J. on 9^th November, 2011, for failing to comply with directions given by Kelly J. on 6^th July, 2011. The judgments of Kelly J. and Clarke J. on 6^th July, 2011 and 9^th November, 2011, respectively, set out the history of this matter so far as the complaints of the defendant are concerned in relation to the pleadings and the deficiencies therein.

4 What I have to decide at this stage is whether the fourth statement of claim complies with the order of Clarke J. Even if it does, I then have to decide whether or not the claim should be struck out as an abuse of process or on the grounds that it is bound to fail.

5 On any view the fourth statement of claim (like its predecessors) is evidence of a scattergun approach by the plaintiffs in connection with their claim. There are many issues that arise out of the pleadings including those involving the law of agency, privity of contract, novation and a controversial concept raised by the plaintiffs of"single economic entity". It is not appropriate that I would make any comment on the merits of the plaintiffs' case under any of these headings (other than in the context of the assertion by the defendant that the claims are bound to fail) as these are matters which (if...