O'Meara v Goodbody Stockbrokers

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 456
• Court: High Court
• Docket Number: [2014 No. 9932P]
• Date: 29 July 2016

BETWEEN

JOHN O'MEARA

PLAINTIFF

AND

GOODBODY STOCKBROKERS

AND

PERSHING SECURITIES INTERNATIONAL LIMITED

AND

BANK OF NEW YORK MELLON (IRELAND) LIMITED

TRADING AS BNY MELLON

DEFENDANTS

[2016] IEHC 456

Barrett J.

[2014 No. 9932P]

THE HIGH COURT

Contract – Breach of contract – Practice & Procedures – O. 19, r. 7 of the Rules of the Superior Courts – Motion for better particulars – Access to facts

Facts: Following the filing of the claim for breach of contract by the plaintiff against the defendants, the first named defendant had now filed an application seeking an order for further and better particulars from the plaintiff. The first named defendant alleged that it needed to know the precise nature of the claim that was being made against it in order to defend the claim for breach of fiduciary duty.

Mr. Justice Max Barrett granted an order to the effect that the plaintiff would provide further and better particulars to the first named defendant in relation to the particulars sought. The Court held that since the plaintiff had sought damages and he could be awarded exemplary damages, it was essential for the first named defendant to know in advance, in broad outline, the case that it would have to meet at the trial. The Court observed that there was a link between proper pleadings and the efficient discovery and administration of justice and that the defendant should not be left guessing as to what was in real claimed against him.

JUDGMENT of Mr Justice Max Barrett delivered on 29th July, 2016.

Part 1

Facts

1 In January, 2008, Mr O'Meara acquired some shares in Anheuser-Busch. He claims that, as a result of the actions of one or more of the defendants, he missed out on a rights offer that was thereafter extended to existing Anheuser-Busch shareholders. He has, in consequence, instituted the within proceedings, claiming that one or more of the defendants is or are liable to him for losses that he has sustained by virtue of alleged breach of contract, breach of fiduciary duty, negligence, breach of duty of care, misrepresentation, loss of opportunity and unjust enrichment.

2 In the particulars section of Mr O'Meara's statement of claim, it is claimed that after he learned of the (by then lapsed) rights offer: he placed phone calls with Goodbody Stockbrokers on a number of occasions; and, to borrow a colloquialism, “got the run around” in terms of discovering how he had missed out on the offer. It is further claimed that, in one phone call, mention was made by Goodbody Stockbrokers that Bank of New York Mellon (BoNY) had made a standard payment to Anheuser-Busch shareholders who had not availed of the rights offer. It is also claimed that in another phone call, and later in writing, Goodbody Stockbrokers indicated themselves to have instructed Pershing, which the court understands is a so-called “back-office” services provider, and BoNY, to sell Mr O'Meara's rights, presumably, though this is not stated, having previously acquired those rights themselves. It is indicated too that Mr O'Meara, in advancing his claim, will invoke (1) the EU Unfair Commercial Practices Directive ( i.e. Directive 2005/29/EC of the European Parliament and of the Council of 11th May, 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, which directive was implemented in Ireland by way of the Consumer Protection Act 2007) and (2) the Markets in Financial Instruments Directive (“MiFID”) Regulations (so, presumably, some or all of the European Communities (Markets in Financial Instruments) Regulations 2007, the European Communities (Markets in Financial Instruments) (Amendment) Regulations 2007, the European Communities (Markets in Financial Instruments) (Amendment) Regulations (No. 2) 2007, and the European Communities (Markets in Financial Instruments) (Amendment) Regulations 2012). As to particulars of special damage, none are provided, beyond the details of the initial purchase- price that Mr O'Meara appears, at least by his own account, to have paid for his shares in Anheuser-Busch.

3 There is nothing wrong with the statement of claim, and Mr O'Meara is perfectly entitled to make his various claims, provided that he proceeds in accordance with applicable law and rules of court. To the extent that the statement of claim is light on detail, and it is light on certain detail, it is precisely the type of detail that one would expect largely to be fleshed out by way of replies to particulars. But there is the rub. As part of the pre-trial proceedings, Goodbody Stockbrokers served a notice seeking particulars on 13th January last. On 19th January, the solicitors for Mr O'Meara responded with replies. Goodbody Stockbrokers maintain that the replies received are inadequate and have brought this application for further and better particulars. It is perhaps helpful before proceeding further to summarise (a) those particulars that were originally sought last January, and (b) the impugned replies received. These are set out in the table be

Particular No.	Summary of Particulars Sought (13th January)	Reply Received (19th January)
1	Full and detailed particulars of the relationship alleged to exist between Mr O'Meara and Pershing, stating whether such is said to give rise to a duty of care or a contractual claim.	The Plaintiff will deal with particulars relevant and necessary to the defence of Goodbody Stockbrokers only. In that context, he repeats the contents of the statement of claim.
2	Full and detailed particulars of the relationship alleged to exist between Mr O'Meara and BoNY, stating whether such is said to give rise to a duty of care or a contractual claim.	The Plaintiff will deal with particulars relevant and necessary to the defence of Goodbody Stockbrokers only. In that context, he repeats the contents of the statement of claim.
5	Full and detailed particulars of each and every breach of statutory duty alleged, identifying the section or subsection of statute relied upon.	Not matters for particulars.
6	Whether it is alleged that Mr O'Meara would have exercised the option to buy and whether he has since bought or sold Anheuser-Busch shares.	Not matters for particulars.
7	Whether Mr O'Meara received any payment by reference to the non-exercise of the rights issue…and the difference in value between the applicable share value and the amount received.	Not matters for particulars.
10	Full and detailed particulars of the claim made by Mr O'Meara in respect of funds, profits, dividends, interest payments, commission, and other rights generated with the shares.	Unknown pending discovery.
11	The nature of any rights attaching to the Anheuser-Busch shares which give rise to any loss beyond share value plus dividend loss.	Unknown pending discovery.
12	Full and detailed particulars of the loss and damage alleged by Mr O'Meara.	Unknown pending discovery.
13	Full and detailed particulars of the facts alleged to entitle Mr O'Meara to aggravated or exemplary damages.	See the Statement of Claim.
14	Full and detailed particulars of the claim for misrepresentation.	See the Statement of Claim.
15	(By reference to the statement of claim), whether it is being suggested that one or other of the defendants acquired Mr O'Meara's rights issues themselves.	Unknown pending discovery. See the Statement of Claim.
16	The period for which Mr O'Meara held his existing shareholding in Anheuser-Busch (and if disposed of, when and for what price).	Not matters for particulars.

4 It is difficult to see in any of the above-mentioned categories of particulars anything other than a legitimate and reasonable attempt by Goodbody Stockbrokers to get an appropriately informed sense of the case that they will have to meet. The court does not see in the categories of particulars sought an attempt to interrogate aggressively Mr O'Meara's case by raising wide-ranging, standardised or irrelevant particulars. Each of the categories is focused and seeks to elicit information that will yield in broad outline the case that Goodbody Stockbrokers will have to meet. The phrase ‘ broad outline’, in this regard, derives from the decision of the Supreme Court in Mahon (considered below) and does not mean so broad as to leave a defendant in real doubt as to what has been claimed, which is the case so far here, but broad enough that he knows what has been claimed, having regard to the fact that the dispute between the parties will ultimately be decided by reference to whatever evidence is adduced at trial. The effect of Mr O'Meara's statement of claim, coupled with the above replies to particulars, is that Goodbody Stockbrokers are left at this time with a “dot to dot” impression of the case that is being made against them; it behoves Mr O'Meara now to draw the lines between those dots, so that the broad outline of the case he seeks to make is clear, with the full colour of that case to be sketched at the court of trial.

Applicable Case-Law

i. Aranwell.

Part 2

5 In the course of argument, the court was referred to two cases. The first is the judgment of Herbert J. in Aranwell Limited v. Pura Food Products Limited and anor (Unreported, High Court, Herbert J., 23rd April, 2004). In his judgment, Herbert J. recalls that O. 19, r.3 of the Rules of the Superior Courts provides (and it still provides) that ‘ Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies…but not the evidence by which they are to be proved.’ Herbert J. further recalls that O. 19, r.7(1) provides (and it still provides) that ‘ A further and better statement of the nature of the claim…or further and...