IEHC 96 — IEHC 96 — High Court

THE HIGH COURT

[2026] IEHC 96

Record No. 2025 291 CA

Record No. 2024/0003209

Dublin Circuit County of the City of Dublin

Between

JACC SPORTS DISTRIBUTORS LIMITED (IN LIQUIDATION)

Plaintiff/Respondent

and

SHAMROCK ROVERS FC LIMITED

Defendant/Appellant

Ex tempore Judgment of Mr. Justice Conor Dignam delivered on the 20th day of February 2026

1. The plaintiff obtained summary judgment in the Circuit Court on the 22 nd July 2025. The defendant has appealed that decision and it came before me by way of that appeal on Monday, the 16th February 2026.

2. The parties were agreed that pursuant to section 37 of the Courts of Justice Act 1936 this appeal shall be heard by way of rehearing of the action “but no evidence which was not given and received in the Circuit Court shall be given or received on the hearing of [the] appeal without the special leave of the judge hearing such appeal.”

3. It appeared at a certain stage that the defendant would be applying for leave to adduce further evidence, i.e. an alleged contract between the parties. Indeed, Gearty J at a directions list in December gave the defendant liberty to bring such an application. However, the defendant did not bring an application and confirmed at the hearing of the appeal that no such application was being made. The matter therefore proceeded on the basis of the evidence that was before the Circuit Court.

4. The parties were not in dispute in relation to the principles applicable to applications for summary judgment. They are set out in a number of judgments, including Aer Rianta cpt v Ryanair Limited [2001] 4 IR 607 at page 615:

“Thus it is for this court to decide whether in the instant case the defence set out in the affidavits...together with the documents exhibited therewith, is credible, or in other words, whether there is a fair or reasonable probability of the defendant having a real or bona fide defence”

5. The plaintiff’s claim is that it supplied goods to the defendant in October 2022, that the defendant acknowledged receipt of the goods and agreed an invoice in the sum of €28,094.54, that the invoice was raised on the 21st December 2022, but the amount was not paid despite demands. Proceedings were issued on the 17 th July 2024. A motion seeking summary judgment in that amount was issued on the 25 th October 2024. This was grounded on the affidavit of Mr. Aengus Burns of the 24 th October 2024. Mr. Burns is the liquidator of the plaintiff company, having been appointed as a provisional liquidator by O’Moore J on the 27th October 2022 and as liquidator on the 4th November 2022. A Defence and Counterclaim was delivered on behalf of the defendant on the 6 th December 2024 and a replying affidavit on behalf of the defendant was delivered on the 25 th February 2025 (sworn by Mr. James Nolan). Mr. Burns swore another affidavit on the 26 th March 2025 and Mr. Nolan swore a second affidavit on the 17 th June 2025.

6. The defendant does not deny that it received the goods, that the invoice was raised and that the amount was not paid. The defendant denies that the amount is due and owing on essentially two bases.

7. Firstly, it is contended that the plaintiff is estopped from pursuing the defendant in circumstances which I return to shortly. Secondly, the defendant claims that the plaintiff owes the defendant the sum of €34,914.00 pursuant to the same contract as gives rise to the plaintiff’s claim or at least in circumstances which are closely connected to those giving rise to the plaintiff’s claim. The defendant claims this amount by way of counterclaim or set off.

8. I deal with each of these in turn. The parties delivered extremely helpful written submissions and I had the benefit of oral submissions at the hearing.

2 Estoppel

9. The defendant company claims that a related company, Shamrock Rovers Academy Limited (“the Academy”), made a payment of €38,236.26 to a receiver of the plaintiff company in March 2023. The plaintiff does not dispute that this payment was made. The receiver had been appointed by Ulster Bank who was also the petitioner for the appointment of the liquidator. The defendant claims that this payment was made by mistake. The error was explained in a letter exhibited to Mr. Nolan’s affidavit. This was a letter of the 19th May 2023 from solicitors acting for the Academy to the receiver. It is stated in that letter that this payment should have been made to a different party and was made to the receiver in error. There had been an exchange of emails between the receiver and the Academy before this letter. It seems likely from some of the emails that there was also telephone contact. Upon receipt of the amount, the receiver emailed on the 20 th April 2023 to say that the amount had been received and that €3,322.78 of it covered the Academy’s balance and €33,686.04 covered an outstanding balance of the defendant company. The email stated that “Upon confirmation...that [Shamrock Rovers FC Limited’s] balance of €33,686.04 will be paid...” the Academy balance of €3,322.78 would be cleared and a refund of €34,913.48 would be made. In an email of the 2 nd May 2023, the receiver stated “We are still awaiting confirmation that the outstanding balance of €26,868.43 under the Shamrock Rovers Concession Store account will be paid. Once this is confirmed we will be able to remit the monies back to you.” These emails led to the letter of the 19th May 2023 in which it was stated inter alia:

“As is clear and you know, the sum of €38,236.26 was transferred to the wrong account in error and was intended to be transferred to the bank account of Elverys Sports Umbro Division to discharge certain invoices and sums owed by our client to Elverys Sports Umbro Division. The amounts which you state relate to the concession store, are a matter solely for Shamrock Rovers F.C. Limited, which is a separate company and distinct legal entity from our client.

It is asserted in your email that a refund of €34,913.48 will be processed only when the balance of €33,686.04 relating to the concession store fees is cleared. It is clear from this acknowledgement that you are aware that the concession store account is a matter relating to Shamrock Rovers F.C. Limited and not our client.

It is clear that the amount of €34,913.48 is being unlawfully withheld in your client bank account in the knowledge that our client is, indeed, entitled to the refund of said sum. You have no legal basis to withhold a sum that you know belongs to our client. ”

3 10. The case that is pleaded in the Defence is that it was expressly represented to the Academy that the amount of €34,913.48 would be used to offset any debts due and owing by the defendant to the plaintiff. This is also deposed to by Mr. Nolan. It is pleaded that the Academy and the defendant had relied on that representation. Mr. Nolan stated that the Academy had not pursued the return of the monies on foot of that representation.

11. There is no dispute that this payment was made. Nor is there any dispute that the sum of €34,913.48 has not been returned. The evidence of the plaintiff is that it has not been paid to the plaintiff company or to the liquidator. Mr. Burns does refer in his second affidavit to the operation of an invoice discounting facility between Ulster Bank and the plaintiff pursuant to which Ulster Bank was entitled to recover certain debts that were due and owing to the plaintiff in order to pay the amount the plaintiff owed to Ulster Bank. The suggestion seems to be that the amount held by the receiver may have been applied to the Ulster Bank debt.

12. The defendant’s case is that these facts give rise to an estoppel on the part of the company/liquidator from pursuing the amount claimed in the proceedings.

13. The plaintiff disputes that any estoppel arises. It does so on a number of grounds, some, though not all, of which overlap. It is submitted that there is no evidence of any representation that the monies would be applied towards the amount owed by the defendant company. It is also submitted that even if a representation was made, there is no evidence that the defendant relied upon that representation to its detriment. The point was also made that the defendant and the Academy are separate legal entities, and, therefore, if any representation was made, it was made to the Academy and not to the defendant. Furthermore, if any such representation was made, it was made by the receiver and not the plaintiff. The plaintiff submits that the payment was made by the Academy and not by the defendant company, and therefore the defendant has no equitable or legal interest in the allocation of those monies. At the hearing, it was also submitted on behalf of the plaintiff that because the payment was made to the receiver by mistake the payment was not made to him qua receiver and he was therefore not acting as the agent of the plaintiff company

14. I do not think there is any merit to this last point. It seems to me that the relevant point is that while the payment was not intended for the plaintiff/receiver, the receiver received and, more importantly, retained the payment in his capacity as receiver. This is clear from the correspondence referred to above, in which the receiver clearly purports to act in relation to amounts owed to the plaintiff company. I am satisfied that there is at least a bona fide case that he was acting as agent for the plaintiff company at the time.

4 15. However, the other points present greater difficulty. I should say at the outset that it seems to me that there is potentially a very significant injustice if it transpires that the plaintiff company received the benefit of the mistaken payment and the liquidator also recovers the amount on foot of a judgment of the court. Mr. Burns says on affidavit that the monies were not paid “by the Receiver to me for the benefit of the liquidation of the Plaintiff in order to deal with the liability of the Defendant to the Plaintiff for the sum that is claimed in these proceedings.” However, he does not deal with whether the company obtained the benefit of the payment by it being put towards the reduction of the plaintiff’s debts to Ulster Bank. If the company did obtain that benefit then it would be unjust for the liquidator to also recover the same debt from the defendant.

16. However, in determining whether the defendant has established a bona fide defence, I am constrained to dealing with the defence that is raised in the Defence and Counterclaim and in the affidavits sworn on behalf of the defendant. The sole defence (other than the set off argument) is an estoppel.

17. In order for an estoppel to arise, there must be a representation by the plaintiff. In circumstances where I am satisfied there is a credible basis for saying that the receiver was acting as agent of the plaintiff, I am satisfied that if a representation was made by the receiver, it was made by the plaintiff.

18. Secondly, the representation that is claimed to give rise to an estoppel is pleaded as follows (paragraph 9 of the Defence and Counterclaim):

“...From these funds, the sum of €3,322.78 was applied to an account held by Shamrock Rovers Academy Limited and it was expressly represented to Shamrock Rovers Academy Limited that the remainder (€34,913.45) would be used to offset any debts due and owing by the Defendant to the Plaintiff...”

19. The evidence that the defendant has placed before the Court does not support the claim that this particular representation was made. In an email of the 20 th April 2023 (quoted above), the receiver stated that once confirmation that the defendant’s debt would be paid was received, the Academy’s account balance of €3,322.78 would be cleared and the amount of €34,913.48 would be refunded. In a subsequent email of the 2nd May 2023, the receiver said that once that confirmation was received the balance would be remitted. The only representation of which there is any evidence (other than the defendant’s assertion) is that the amount would be refunded to the Academy (it was not stated that the monies would be used to offset any debts owed by the defendant). However, in my view, that in itself is not determinative because a representation that the money would be

5 returned might be sufficient to give rise to an estoppel preventing the plaintiff from recovering the amount claimed in the proceedings (subject to the other considerations discussed below). However, that is also not the representation that was made on the evidence currently before the court. The representation that was made was that if the Academy/defendant confirmed that the defendant’s outstanding balance would be paid, the balance of the mistaken payment would be refunded/remitted. That confirmation was not given. The Academy instead, and I have to say, understandably, disputed the receiver’s entitlement to retain the monies, which had been received from the Academy, against a debt owed by the defendant company. To the extent that a representation was made, it was conditional.

20. The representation would also have to be given to the defendant in order for it to give rise to a defence by way of estoppel. It is expressly pleaded in paragraph 9 of the Defence and Counterclaim that the representation was made to the Academy. It is also expressly deposed in Mr. Nolan’s affidavit that the representation was made to the Academy. Thus, the case is not made that a representation was made to the defendant company.

21. Even if the defendant company can rely on the representation to the Academy, there must be reliance on it by the defendant in order for it to give rise to an estoppel. There is no evidence that the defendant relied on any such representation. There is no express plea to that effect in the Defence and Counterclaim. Indeed, there is no express plea to that effect in respect of the Academy but I think that can implied in respect of the Academy. The only evidence in relation to reliance on the representation is at paragraphs 5 and 6 of Mr. Nolan’s first affidavit. At paragraph 5 he says “...it was expressly represented to Shamrock Rovers Academy Limited that the remainder would be used to offset any debts due and owing by the Defendant to the Plaintiff. On the basis of the aforementioned representation, Shamrock Rovers Academy Limited did not pursue the Plaintiff for the recovery of the said funds” [emphasis added]. This is evidence, insofar as it goes, that the Academy, not the defendant, relied on the representation. This averment does not appear to be supported by the correspondence already referred to. I do not need to determine this at this point. At paragraph 6, Mr. Nolan says, inter alia, “...said representations had been relied upon by Shamrock Rovers Academy Limited and the Defendant to their detriment...” [emphasis added]. In relation to the Academy this must be read together with the quote from paragraph 5, but in relation to the defendant company, it is no more than an assertion. That is not sufficient. The Court of Appeal stated in Egerton v Edgeform Metals Limited [2023] IECA 119 (at paragraphs 65 and 66):

6 65. In my view the set-off defence offered by the respondents is not credible, having regard to the documents that were completed at the time of the sale and purchase of the Company in February 2010, and the later acknowledgement signed by Mr. Egerton in December 2010. Moreover, apart altogether from its inconsistency with those documents, it amounts to no more than a mere assertion advanced by Mr. Boylan. In general terms, a mere assertion without more, is an insufficient basis upon which to resist an application for summary judgment. See, for example, the decision of the Clarke J. in McGrath v O'Driscoll & ors [2006] IEHC 195, [2007] 1 ILRM 203, wherein he stated, at para [3.4]:

“So far as factual issues are concerned it is clear, therefore, that a mere assertion of a defence is insufficient but any evidence of fact which would, if true, arguably give rise to a defence will, in the ordinary way, be sufficient to require that leave to defend be given so that that issue of fact can be resolved.” ……..]

66. Likewise in Harrisrange v Duncan, McKechnie J. at para [9] (xi) stated; “ leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence…”

22. Thus, in the absence of any plea, or evidence, of reliance by the defendant company on a representation made by the plaintiff/receiver, the defendant has not established any credible basis for a defence of estoppel. As that is the only defence which is advanced in respect of the mistaken payment and the plaintiff’s entitlement to sue in light of that payment, I must conclude that a bona fide defence has not been established on this point.

23. However, it does seem to me that separate consideration must be given to the question of a stay on judgment in light of this payment and its retention and I will return to this.

Counterclaim and Set-Off

24. The defendant also raises a defence of set off. It is claimed that the plaintiff owes the defendant four separate sums totalling €34,914.00 on foot of invoices dated the 12 th August 2022, the 1st October 2022, the 26th October 2022, and the 31st October 2022. These are stated to be in respect of “Bonus Payment”, “Commission”, “Commission”, and “League Win” respectively. If the defendant is correct, then when this amount is set off against the amount owed by the defendant, the plaintiff would in fact owe the defendant €6,864.46. At the hearing, the plaintiff pointed out that the fourth invoice was raised after

7 the commencement of the winding-up and the defendant can not rely on it. This was not really disputed by the defendant. When this is taken into account, if the defendant is correct in relation to the other three, then the defendant owes the net figure of €2,360.54.

25. It is claimed by the defendant that these amounts are due on foot of an agreement between the parties. The Defence and Counterclaim is unclear in relation to this agreement. It seems to refer to an agreement of October 2022 but that can not be correct because at least two of the invoices pre-date that.

26. No details of any such agreement are contained in Mr. Nolan’s first affidavit. He simply says at paragraph 3 that “...the Defendant...claims that pursuant to agreement between the parties, and by way of invoices raised on the 12 th August 2022, the 1 October 2022, the 26 October 2022 and the 31 October 2022, the Defendant sought payment from the Plaintiff in the sum of €34,914.00...” At paragraph 7 he says that discovery will be sought in support of the defence and claim for set-off.

27. Importantly, Mr. Burns replied to say (at paragraphs 7 and 8 of his second affidavit) that “Mr. Nolan has failed to exhibit the relevant agreement, from which the Court could determine whether a contractual right to set-off arises, as claimed or at all. I believe and am advised that, if it wishes to advance a defence of set-off, the Defendant bears the onus of proof in demonstrating that that contract does not exclude set-off between the parties, and has failed to discharge that burden...the agreement to which Mr. Nolan refers appears to be some class of sponsorship agreement, and is not the same agreement on foot of which the Plaintiff provided sportswear and apparel to the Defendant...” He goes on to say that as there is no connection between the two agreements, the defendant is not entitled to set-off.

28. Importantly, notwithstanding these averments, when Mr. Nolan replied to this affidavit, he did not give any further details of the relevant agreement and did not exhibit the agreement.

29. As mentioned above, when this matter appeared in a directions list in December 2025, Gearty J gave the defendant liberty to bring a motion for leave to adduce further evidence, i.e. the agreement. However, that application was not made and it was confirmed at the hearing by counsel for the defendant that an application was not being made to adduce evidence that was not before the Circuit Court. Counsel for the defendant, who was not involved at the time, accepted that the agreement should have been exhibited, but indicated that the defendant could not satisfy the test for the introduction of additional evidence and therefore was not making that application. I should note that

8 an agreement was appended to the written submissions but, as it was not in evidence, I did not have regard to it.

30. The significance of this is as follows. In the absence of the agreement, or at least particulars of the agreement, I can not conclude that the defendant is entitled to a contractual set-off or that there is a sufficiently close connection between the debt owed by the defendant to the plaintiff and the debt claimed by the defendant.

31. The circumstances in which summary judgment on a claim may be refused on the grounds of a counterclaim or set off were considered in Geldof Metaalconstructie NV v Simon Cares Limited [2010] EWCA Civ. 667. The requirements were identified as (i) the existence of a close connection between the claim and the sum of money that is being set off, and (ii) it must be “manifestly unjust” to allow a party to enforce the claim without taking the set-off into account.

32. That approach has been adopted in Ireland. In Castletown Foundation Limited v Magan [2022] IECA 218, Murray J said at paragraph 16 of his judgment:

“In McGrath v O'Driscoll [2007] 1 ILRM 203, Clarke J. (as he then was) explained the distinction between counterclaim and set off for this purpose in terms that ‘where a counterclaim arises out of circumstances which are sufficiently connected to a claim, a set off in equity arises because it would be inequitable to allow the plaintiff's claim without taking the defendant's cross claim into account’. The case law was summarised by this court (Whelan J, with whom Ní Raifeartaigh and Power JJ. agreed) in Fabri Clad v. Stuart [2020] IECA 247. Whelan J. explained (at para. 103):

‘Whether the counterclaim contended for could amount to a defence by way of set-off was considered by Clarke J. in Moohan v. S. & R. Motors (Donegal) Ltd. at para. 9. He observed that the court had a “wider discretion” depending on whether or not the counterclaim arises from an independent set of circumstances. As was observed by Clarke J., when the nature of a defence put forward amounts to a form of cross-claim on the part of the defendant against the plaintiff “then the first question which needs to be determined is as to whether that cross-claim would give rise to a defence in equity to the proceedings.” The answer to that question derives from the decision of Kingsmill Moore J. in (Prendergast v. Biddle Unreported, Supreme Court, 31 July 1957), as Clarke J. noted:-

9 “…the test as to whether a cross-claim gives rise to a defence in equity depends on whether the cross-claim stems from the same set of facts (such as the same contract) as gives rise to the primary claim. If it does, then an equitable set off is available so that the debt arising on the claim will be disallowed to the extent that the cross-claim may be made out.”

As Clarke J. continues at para. 10:–

“On the other hand if the cross-claim arises from some independent set of circumstances then the claim (unless it can be defended on separate grounds) will have to be allowed, but the defendant may be able to establish a counter claim in due course, which may in whole or in part be set against the claim.”'”

33. In Moohan v S & R Motors (Donegal) Limited [2007] IEHC 435, Clarke J said:

“Where the nature of the defence put forward amounts to a form of cross claim slightly different considerations may apply. In those circumstances the court has a wider discretion. Where the defendant does not establish a bona fide defence to the claim as such, but maintains that he has a cross claim against the plaintiff, then the first question which needs to be determined is as to whether that cross claim would give rise to a defence in equity to the proceedings. It is clear from Prendergast v. Biddlle(Unreported, Supreme Court, 21 st July, 1957, Kingsmill Moore J.), that the test as to whether a cross claim gives rise to a defence in equity, depends on whether the cross claim stems from the same set of facts (such as the same contract) as gives rise to the primary claim. If it does, then an equitable set off is available so that the debt arising on the claim will be disallowed to the extent that the cross claim may be made out.”

34. I have to say that I suspect that it is very possible that the amounts claimed do arise from the same agreement or closely connected arrangements. However, I can not proceed on the basis of speculation. There is simply no evidence before me to safely reach the conclusion that there is a bona fide defence on this point. It is important to make the point that there will be occasions when a claim for set-off may be based on documents which are not in the defendant’s possession and, therefore, he can not adduce evidence of his counter-claim at that stage. He may have to avail of pre-trial steps such as discovery. However, while this point was floated at one stage in this case, no real claim is made that this is the case here (nor could it be where the agreement was appended to the written submissions).

10 35. The Court can only proceed on the basis of evidence in determining whether a defendant has established a bona fide defence. It is, of course, important to emphasise that the defendant does not have to prove its case at this stage but simply establish a bona fide defence. Nonetheless, the Court must have evidence upon which it can determine whether or not such a case has been established.

36. It seems to me therefore that the plaintiff is entitled to judgment

37. As mentioned earlier, the question of a stay on the execution of judgment must be considered separately. For the reasons set out above, I am satisfied that summary judgment should be granted to the plaintiff. I am also satisfied that a stay should be granted on execution of that judgment. The plaintiff company was placed into liquidation by the High Court. I can conclude that it has limited resources. The effect of this is that if the defendant is ultimately successful in its claim of estoppel, or its counterclaim or claim for set-off, it may find it impossible to recover monies from the plaintiff. That, of course, could not be determinative if I was satisfied that the defendant had no prospects of success. I am not so satisfied. I have, of course, determined that on the state of the evidence at this point in time a bona fide defence has not been established. However, a wholly different complexion may be put on the case if further evidence is adduced at trial. Such evidence may include, for example, the alleged agreement between the parties. This may establish that there is a contractual or equitable set-off. Such evidence may also include evidence of contacts between the receiver and the Academy or the defendant in relation to the mistaken payment in addition to the correspondence. Of course, this is not claimed by the defendant, but as I state above, the terms of the correspondence leave open the possibility of such other contacts.

38. In my view, in those circumstances it would be wholly unjust not to place a stay on the judgment. I have considered a point that was very persuasively made by counsel for the plaintiff. He submitted that as the fourth invoice in the defendant’s counterclaim/claim for set-off post-dates the commencement of the liquidation, the amount of the set-off would still, leave a balance of €2360.54 owing to the plaintiff. It was submitted that even if a stay is to be placed on judgment, there should be no stay in respect of that amount of the judgment. That would be correct were it not for the fact that I am satisfied that a stay should also be granted on the basis of a possible defence that the debt was already paid by way of the mistaken payment to the receiver.

39. In those circumstances, I will uphold the decision of the Circuit Court and grant summary judgment to the plaintiff in the amount of €28,049.54. I will also place a stay

11 on execution of that judgment pending determination of the defendant’s counterclaim and claim of set-off.

40. My provisional view is that the plaintiff has succeeded in its claim and is therefore entitled to its costs in this Court and the Circuit Court. The decision of the Circuit Court was not appealed on the basis of the refusal of a stay and my provisional view is that the grant of a stay should therefore not disentitle the plaintiff to an Order for Costs. If either party wishes to make submissions on this issue, written submissions not exceeding 1500 words must be delivered within two weeks of the delivery of this judgment.

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