IEHC 443 — IEHC 443 — High Court

THE HIGH COURT

COMMERCIAL

[2026] IEHC 443

[Record No. 2025/4965P]

BETWEEN

BAM BUILDING LIMITED

PLAINTIFF

AND

NATIONAL PAEDIATRIC HOSPITAL DEVELOPMENT BOARD

DEFENDANT

JUDGMENT of Mr Justice Mark Sanfey delivered on the 3rd day of July 2026.

Introduction.

1. In this application, the plaintiff ("BAM") seeks an order pursuant to the inherent

jurisdiction of the court staying the present proceedings and three further related

proceedings between BAM and the defendant ("NPHDB"), pending determination of

“Module 1” of the proceedings entitled “National Paediatric Hospital Development

1 Board v BAM Building Ltd, Record Number 2020/2502P", to which I shall refer in this

judgment as “the phase B proceedings".

2. The proceedings in respect of which the plaintiff seeks a stay are as follows:

(1) BAM Building Limited v National Paediatric Hospital Development Board,

Record Number 2025/4965P (“the frame claim");

(2) BAM Building Limited v National Paediatric Hospital Development Board,

record number 2025/5641P (“the global delay claim");

(3) BAM Building Limited v National Paediatric Hospital Development Board,

record number 2024/7119P (“the inflation claim”);

(4) BAM Building Limited v National Paediatric Hospital Development Board,

record number 2025/5642P (“the level 07 steelworks claim”),

collectively “the High Court disputes”.

3. The application is a novel one, in which the plaintiff seeks a stay on the above

four sets of proceedings in which BAM itself is the plaintiff. As the defendant points

out, a stay on proceedings is more typically sought by the defendant to prevent a

plaintiff moving ahead with its proceedings; here, the plaintiff seeks to be relieved of

the necessity to proceed with its own proceedings until what it contends is an issue vital

to the prosecution of the High Court disputes is resolved in the phase B proceedings.

4. NPHDB opposes the application. It contends that there is no legal basis for the

order sought, and that BAM should move the High Court disputes along, pleading

alternative bases of claim which can be amended or adjusted as necessary when Module

1 of the phase B proceedings has been determined.

Background to the contractual disputes

2 5. In order to understand the context in which this application is made, it is

necessary to have a grasp of the contractual provisions which have resulted in the claims

being initiated.

6. BAM and NPHDB entered into an agreement (“the contract”) on 14 August

2017 for the construction by BAM of the new Children's Hospital at St James's Hospital

Campus, Dublin 8. This contract divided the work into two phases: the civil engineering

and underground work (“phase A works”), and the superstructure and building work

(“phase B works”). The design of the works was to be carried out by the defendant's

design team.

7. The contract contains detailed provisions governing the way in which claims for

payment are to be made. Clause 13.2 sets out a procedure for conciliation in relation to

disputed claims. If the dispute referred to conciliation is not resolved by agreement

within 42 days of the referral, or such longer period as is agreed by the parties, the

conciliator is required to produce a written recommendation. Either party can notify the

other of its dissatisfaction with the recommendation; absent such notice, the

recommendation is binding on the parties.

8. Where, as in each case here, NPHDB rejects the recommendation, it is

nonetheless required to make the recommended payment on the basis that BAM will

provide a bond in the sum paid, and issue High Court proceedings to establish its

entitlement to the claimed amount. It is for that reason that BAM was obliged to issue

four separate sets of proceedings, one in respect of each recommendation by the

conciliator.

The phase B proceedings

9. Clause 9.1.3 of the conditions of contract provides, inter-alia, as follows:

3 "The contractor shall start the Phase B works under the Contract when so

instructed by the Employer's Representative. [Provided that the Adjusted

Contract Sum has first been ascertained by the Parties or determined by the

Expert], the Employer's Representative may issue such an instruction at any

time after the Starting Date".

10. An instruction (“the phase B instruction”) to commence the phase B works was

issued on 8 January 2019 by Claire White of O’Connell McMahon Architects, and was

expressed to be from the Employer's Representative. The defendant maintains this

instruction is valid and binding on the plaintiff, and that the adjusted contract sum had

been ascertained or determined prior to the issue of the phase B instruction.

11. Ultimately, NPHDB issued the phase B proceedings on 1 April 2020. It sought

a declaration in those proceedings that the phase B instruction was valid and legally

binding, or alternatively a declaration that BAM was estopped from denying the validity

of the instruction or had waived any right or entitlement to deny or dispute its validity,

or had acquiesced to its validity: see the amended statement of claim in those

proceedings delivered on 6 April 2020.

12. BAM delivered an amended defence and counterclaim on 30 June 2020. It

contended that NPHDB had “failed to complete or coordinate the design to the level

required to enable the Works to be executed in the manner envisaged in the Contract…”

[para. 13]. It set out a number of alleged “pre-conditions to the instruction to commence

the Phase B works" which it contended had not been met by NPHDB: see paras. 37 -

38 of the amended defence and counterclaim. BAM counterclaimed for declaratory

relief which it maintained arose from the allegedly defective instruction.

13. In a further “amended defence and counterclaim” delivered on 2 July 2025,

BAM pleaded at para. 34 (a) that the phase B instruction was invalid “in circumstances

4 where Claire White of O’Connell McMahon Architects was not appointed by the

Plaintiff as the Employer's Representative for the Contract”. The re-amended reply and

defence to counterclaim was delivered by NPHDB on 31 July 2025 - the original

amended version having been delivered on 30 July 2020 - in which NPHDB joined

issue with the defence and counterclaim and with para. 34(a) in particular.

14. NPHDB issued a motion seeking a modular trial of the phase B proceedings. On

consent, the High Court (McDonald J) directed on 4 December 2020 that the first

module (“Module 1”) of the proceedings should consist of

"(a) the matters pleaded in the Statement of Claim and the Defence; and

(b) one issue from the counterclaim, namely:

‘Do the mechanisms for which clauses 10 and/or 13 of the Contract provide

apply to claims arising from alleged design changes or additions that the

Defendant contends in these proceedings ought, pursuant to the Contract, to

have been covered by the design in respect of the Phase B Works provided

by the Plaintiff as at 8 January 2019 and which the Defendant contends was

not provided as of that date or subsequently”.

The present application

15. These, then, are the issues which BAM contends should be determined by the

court before the High Court disputes proceed any further. No statement of claim has yet

been delivered for any of the High Court disputes, as BAM says that the approach it

would take to damages in each case is “wholly dependent” on the outcome of Module

1 of the phase B proceedings (“the phase B module”).

16. BAM relies on two affidavits of Conor Owens, a solicitor and partner of the

firm representing BAM, sworn on 2 December 2025 and 29 January 2026; an affidavit

5 of 24 January 2026 of John McSorley, a chartered surveyor and expert in quantum

analysis; an affidavit of 28 January 2026 of Manoj Bahl, an engineer who specialises

in forensic analysis of delay in construction projects; and an affidavit of Seamus Kealy,

a commercial director of BAM, sworn on 16 February 2026.

17. NPHDB delivered affidavits responding to the averments of BAM’s deponents

by Seán Carr, a solicitor and partner of the firm representing NBHDB, sworn on 20

January 2026 and 11 February 2026; an affidavit of 16 February 26 from Brian Barry

of Kroll in response to the affidavits from Messrs McSorley and Bahl, and an affidavit

of 11 February 2026 from Thomas Morris, commercial director of NPHDB.

18. The application was heard by me on 24 February 2026. Both sides proffered

detailed written submissions and authorities, complemented by very helpful oral

submissions from counsel.

19. The affidavits of both sides, and the submissions, set out the respective positions

of the parties, and I have attempted to summarise these positions below before going

on to consider the legal issues involved.

BAM’s position

20. At paragraph 6 of his second affidavit, Mr Owens identifies what he regards as

“the salient point”: that “the claims underlying the High Court Disputes, and how those

claims might be pleaded, are entirely dependent on the determination of the validity or

otherwise of the Phase B Instruction … [I]t is not even possible to start the process of

pleading the High Court Disputes in the alternative until such time as the Works have

been completed".

21. At para. 12 of the same affidavit, Mr Owens stated as follows:

“12… The primary reasons for seeking a stay are that

6 (i) it is not currently possible to plead the High Court Disputes in the

alternative for the reasons explained below;

(ii) even if it were possible to plead the High Court Disputes now, this would

be a potentially huge waste of money

(iii) it is oppressive to require the Plaintiff to plead the High Court disputes

at this point in time and

(iv) there is no prejudice to the Defendant in granting a stay.”

22. Mr Owens goes on to aver at para.14:

“Additional and connected to the above point is the time and cost involved for

both parties. The project is at a significant juncture and is nearing Substantial

Completion (subject to no further design changes). To engage in pleading these

four sets of proceedings (when we say this is an almost impossible task) in the

run-up to Substantial Completion, would militate against the very purpose of

the contract - the delivery of the hospital. To persist with pleading the four cases

would exert significant pressure on the resources required on site to deliver the

project as many of those personnel are also the key witnesses and have the

required information for the pleadings. It has to be remembered that claims,

such as the Frame Claim, involves sub-contractors who have long since left site

and it will take significant time and coordination to get the necessary input from

these people. Doing that, at the same time as delivering a major piece of

infrastructure, is stretching the bounds of what is possible."

23. BAM considers that the nature of the four claims is such that they are entirely

dependent on the issue of the validity or otherwise of the phase B instruction:

(1) The frame claim:

7 In this claim, BAM claims an entitlement to an extension of 90 working days

“as a result of delay to the structural frame", which delay was notified by the

plaintiff to the defendant on 10 May 2019. BAM seeks judgment in the plenary

summons of €45,001,699.84. Counsel for BAM describes this as a “classic

delay claim"; the conciliator gave a recommendation in the sum for which BAM

now seeks judgment in accordance with contractual procedures. If, however, the

phase B instruction is deemed to be invalid, counsel submitted that there is an

“entirely different basis” on which the plaintiff is entitled to be paid in relation

to this claim.

(2) The “global delay claim" or “critical path claim":

In the global delay claim – called the “critical path claim” by NPHDB - the

plaintiff seeks an entitlement to an extension of time of 731 calendar days. The

plaintiff's position is that 564 of the 731 days relate to delays caused by design

changes. The conciliator recommended payment of €107,637,334 to the

plaintiff; this sum was paid by the defendant in accordance with clause 13.2.12

of the contract on provision of a bond in this sum and the initiation of High

Court proceedings by the plaintiff.

(3) The inflation claim:

In this claim, BAM seeks an adjustment to the contract sum and Guaranteed

Maximum Price (“GMP”) of €19,098,094.04 or such other sum as the court may

determine in respect of inflation on foot of clause 10.8 of the

contract. According to Mr Carr’s first affidavit at para. 14, a sum €16,750,195

has been paid to the plaintiff on provision by the plaintiff of an appropriate bond

and the initiation of High Court proceedings.

(4) The level 07 steelworks proceedings:

8 In this claim, BAM seeks an adjustment to the contract sum and GMP in the

sum of € 2,726,828 or such other sum as the court may determine as a result of

the increase in the amount of structural steel in the level 07 roof

structure. According to para. 16 of Mr Carr’s first affidavit, the sum of

€1,629,092.72 was paid by the defendant to the plaintiff, whereupon

proceedings were initiated in 2024 by the plaintiff, albeit that a further plenary

summons required to be issued by the plaintiff, which was delivered on 17

October 2025.

24. In response to a query from the court as to how it had taken so long to progress

the phase B proceedings and initiate the High Court disputes, counsel for BAM

indicated that the discovery had been “an issue of some considerable dispute between

the parties”; the parties also agreed a moratorium on legal proceedings for a period to

see whether they could resolve their differences: see transcript page 38 line 10 to p.39

line 20.

25. BAM points out that the High Court has ordered that the validity of the phase B

instruction be decided before the court can proceed to deal with BAM’s counterclaim,

which includes claims for delay and adjustment to the contract sum and GMP. It

contends that, for similar reasons, the High Court disputes “cannot realistically be

decided until a decision on Module 1 is issued. If the court determines in Module 1 that

there was no valid instruction, time might be at large, which would fundamentally affect

the basis upon which the claims encompassed in these four High Court Disputes would

fall to be determined" (first affidavit of Conor Owens, para. 23).

26. BAM’s position is that there is no reality to BAM having to plead all the

permutations which arise from the various possible ways in which the phase B module

could be determined. The phase B instruction could be held to be valid or invalid; there

9 is also the possibility that there could be some further conclusion at which a court could

arrive, having heard the full facts of the matter. BAM says that this latter eventuality

would give rise to a number of possible permutations which would have to be postulated

and pleaded by BAM in the absence of a ruling from the court as to the validity and

applicability of the phase B instruction.

27. BAM maintains that a decision that the phase B instruction was invalid would

likely result in the value of the phase B work being calculated on a quantum meruit

basis, as BAM would in those circumstances most likely be entitled to consider time to

be at large, rather than dictated by the strictures of the contract.

28. BAM makes the point that the validity of the phase B instruction will be

determined, not in the four High Court disputes, but in the separate proceedings initiated

by NPHDB. While it is not at all unusual in litigation for alternative issues to be

pleaded, it is submitted by NPHDB that it would be very unusual for the appropriateness

or viability of those issues to be determined by resolution of an issue in separate

litigation.

29. BAM contends that three of the four High Court disputes relate to extensions of

time and adjustments to the contract sum and GMP; the fourth, the inflation claim, “…

is tied to and is reliant on the outcomes of the claims/proceedings relating to the Frame

Claim and the Global Delay Claim and therefore cannot be determined until these two

claims are decided” [para. 26.2 first affidavit Conor Owens].

30. The defendant in fact accepts that the frame proceedings and the global delay

proceedings, which both unarguably are delay claims, “… may have to be case managed

in conjunction with the Phase B Proceedings… ", and contends that the appropriate time

for case management decisions “… is when the pleadings in the High Court Disputes

10 have been closed and both the Court and the Parties are better able to assess the issues

arising therein" [written submissions para. 7].

31. Eoin McCullough SC for BAM, in his oral submissions, made a number of

specific points [see pages 59 to 77 transcript] which I have summarised below:

(i) It is an "inherently wrong-minded idea” that the plaintiff should be

compelled, in each of the cases, to raise alternative pleas about the

potential outcome in circumstances where the issue which would

identify the correct approach is being determined in separate

proceedings.

(ii) The possible outcomes of the phase B proceedings are not necessarily

binary, i.e. that the phase B instruction is either valid or not. A decision

that the instruction was not valid would result in a quantum meruit claim,

which… “is necessarily completely different from a claim based on all

the provisions of the contract, with all the provisions that apply, the

allocation of risk in the contract, the Adjusted Contract Sum in the

contract and so on” [transcript p.61 lines 25 to 29]. A third possibility

would be that the instruction was not validly issued but that there would

be certain collateral agreements between the parties, or other findings

which would affect the contractual arrangements. All of these options

would have to be anticipated, reports sought on the implications of each

of them, and then each pleaded in the alternative.

(iii) If alternative pleas are made, this will cost significant sums of money,

much of which will ultimately transpire to have been unnecessary.

(iv) The pleading of alternatives will not save time, and is more likely to

cause confusion, difficulty and the need for subsequent amendment.

11 (v) Expert reports will require to be commissioned in relation to all of the

alternatives to be pleaded. This is accepted by both sides, although the

experts in their affidavits disagree on how complex and time-consuming

this task would be.

(vi) If NPHDB is successful in the phase B module, and the instruction is

found to be valid, all of the work done to identify and value all of the

options arising from other possible outcomes of those proceedings will

have been in vain. The experts’ reports in that regard will be

“meaningless and useless".

(vii) Senior management of BAM will require to devote time and resources

in the preparation of pleadings and the complexity involved in pleading

alternative cases while having to continue to deliver the project itself,

which is “at a critical stage" [affidavit Seamus Kealy para. 16].

(viii) BAM does not accept that NPHDB is prejudiced by the stay. The

pleadings will have to be revised when Module 1 of the phase B

proceedings is determined, even if they are pleaded in the interim on the

basis suggested by the defendant. BAM maintains that the suggestion by

NPHDB that the alternative claims be pleaded in outline rather than in

detail, to be refined on resolution of the phase B instruction issue, calls

into question the utility of the exercise of alternative pleas.

NPHDB’s position

32. Michael Cush SC, for NPHDB, emphasised that the defendant is not suggesting

that the four High Court disputes must proceed all the way to trial. The defendant

accepts that there would have to be case management at some point; what the plaintiff

12 seeks to do is to procure a stay on its own cases - an entirely novel proposition - with a

view to being excused from pleading its cases.

33. It was submitted that the High Court disputes would proceed to trial in any

event. They will not be determined by the outcome of the phase B proceedings. The

present case is therefore different from the situation where a party asks a court to stay

proceedings on the basis that the result of those proceedings will be determined by the

outcome of separate proceedings. It was also submitted that, in every case in which

alternative grounds of claim are advanced, there will be expenditure and cost which will

ultimately be wasted or unnecessary.

34. Mr Cush submitted that the question of whether BAM should be required to

proceed with pleadings in the four High Court dispute cases “comes down to whether

it is a disproportionate cost to ask [BAM] to plead it out. And when you consider

proportionality of cost, you have to have regard to the value of the claims being

advanced…” [p. 91 lines 22 to 27].

35. Counsel drew attention to the affidavit of Mr Bahl on behalf of BAM, in which

he expressed the view, at para. 1.13, that “given the number of conditions and scenarios

to potentially model, I consider a 6-8 month period would be required to prepare and

finalise my expert opinions”, and to the averment of Mr Owens at para. 64 of his second

affidavit, in which he expressed the view that it would take “at least six months to

complete the pleadings exercise”, and speculated that “the costs associated with this

exercise will likely exceed €500,000 (including expert costs)".

36. The defendant submits that, given that the claims made by BAM may be as

much as €225 million, the cost of €500,000 so that its various possible claims in the

High Court disputes can be quantified cannot be described as disproportionate.

13 37. The court queried as to what advantage would accrue to the defendant from the

plaintiff being required to plead alternative claims in each of the four High Court

disputes. Counsel submitted that pleadings would enable the defendant to understand

the consequences of losing the phase B proceedings. The defendant would learn

generally on what basis the claims are being advanced, and could interrogate those

claims.

38. It was also suggested that a full pleading of the basis for claims would assist and

promote resolution of those claims; in circumstances where the phase B proceedings

were unlikely to commence before Easter 2027, the defendant was entitled to enter

those proceedings having evaluated all the consequences which could arise from a

determination of Module 1 of the phase B proceedings.

39. NPHDB submits that there is a “realistic prospect” that any decision of the High

Court on the phase B proceedings will be appealed, and that equally there is a “realistic

prospect” the High Court would order that the High Court disputes should proceed

rather than await the outcome of the appeal, so that the case would proceed on the basis

of both the contractual claim and the alternatives. If it were to be the case that a

resolution of Module 1 clarified the basis upon which BAM would progress the High

Court disputes, the defendant contends that it would be a relatively easy matter to

amend the pleadings by deleting either the contractual claim or the alternative claim.

40. The defendant points out that the High Court disputes, insofar as they are

prosecuted pursuant to contract, “have already been through a contractual conciliation

process and it is clear that they can be clearly articulated and therefore pleaded”.

The law

41. In Kalix Fund Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2010] 2

IR 581, the court considered the principles applicable to applications seeking to stay

14 proceedings pending the outcome of other proceedings. Clarke J (as he then was) was

required to consider how a number of cases that arose as a result of the collapse of

Bernard L Madoff Investments Securities LLC should be case-managed. The plaintiffs

were investors in funds maintained by Thema International Bank plc (“Thema”) and

the defendant brought an application to stay those cases pending the determination of

another case in which Thema was also suing the defendant (“HSBC”). The court

decided that it did have a discretion to make a direction to stay proceedings pending the

outcome of the other Thema proceedings. The defendant at para. 10 of its written

submissions accurately summarises the factors to be taken into account by the court as

follows:

(i) An individual plaintiff is entitled to have his or her proceedings

determined in an expeditious manner, subject only to ensuring that there

is no disproportionate added expense or drain on court time imposed;

(ii) the extent to which the first case to be tried is likely to bind all other

cases in whole or in part was a factor that the court had to consider;

(iii) the greater the extent to which the first case would direct how the other

proceedings would be run, the more value there was in ensuring that the

cases generally are managed in a fashion which allows the common

issues to be resolved in a speedy fashion;

(iv) a stay should only be granted where a court is satisfied that such a step

is necessary and proportionate to achieve the end of preventing

unnecessary expense or use of court time.

[Emphasis added in original submissions].

42. At para. 56 of his judgment, Clarke J stated as follows:

15 “Taking an overview of all of the issues, it seems to me that it is possible to

reach some general conclusions. Firstly, none of these proceedings have

reached the stage where there is any great degree of clarity about the true issues,

whether of law or of fact, that are likely to be tried. Some greater degree of

clarity arises in the Thema proceedings because the pleadings have closed, but

nonetheless experience teaches that the real issues which are likely to require

court time for resolution only become clarified, certainly in cases managed in

the commercial list, when witness statements have been exchanged and outline

written submissions have been filed. It is, it seems to me, premature to reach

any very strong view as the issues which are likely to really require significant

court time for resolution."

43. NPHDB places particular emphasis on the dicta at para. 66 of the judgment of

Clarke J:

"I am mindful of the fact that there is some risk that in following the procedure

which I have outlined, some costs may be wasted by progressing proceedings

which may ultimately not have to be heard. However, it seems to me that the

risk of not following the procedure which I have outlined is greater. There is a

risk that proceedings which have not been progressed at all will need to be

restarted so that remaining issues can be decided. If I were to accede to the

motion brought on behalf of HTIE then it follows that no further progress could

take place in any of the investor proceedings until such time as the Thema

proceedings were completed. It would then be necessary to restart the investor

proceedings to deal with whatever issues remain for determination. For the

reasons which I have analysed earlier in this judgment it is impossible to say at

this stage whether those remaining issues would be many or few and indeed that

16 question is, in itself, partly dependent on how the Thema proceedings might be

resolved. However, under the procedure which I now set out, all common issues

will be ready for trial at more or less the same time. While that may involve

some additional expense only those issues which can conveniently, efficiently

and justly be tried together will be tried together. However, as soon as any set

of issues have been determined, the next set of issues which logically arise can

immediately go to trial if they remain necessary of resolution in the light of the

decision taken on the earlier issues. On that basis, there should be no significant

delay in any relevant party getting a determination of all issues which are

material to its interests. It seems to me that such a course of action is more

calculated to lead to a just, efficient and timely disposal of all of the proceedings

and to minimise the risk of the waste of court time".

44. The general principles set out by Clarke J in Kalix were adopted by McDonald

J in Avoncore Ltd v Leeson Motors Limited [2021] IEHC 163. At para. 29 of his

judgment, McDonald J set out a number of principles which may be summarised as

follows:

(a) The court has a broad power to give directions for the conduct of

proceedings entered in the Commercial list, as O.63A, r.5 makes clear;

(b) the court has an inherent power to stay proceedings in a range of

different circumstances, and in particular where the court stays one set

of proceedings until another related case has been determined;

(c) the court has a discretion to ensure that scarce court resources and the

resources of parties to litigation are not inappropriately wasted by an

unnecessary duplication of litigation.

17 (d) in managing the conduct of a series of cases, the court should aim to

bring about a just and expeditious trial while, at the same time, seeking

to minimise costs and to ensure that scarce court resources are not

wasted;

(e) the following factors should be borne in mind in assessing how a series

of cases is to be managed:

(i) the fact that each individual plaintiff is entitled to have

the proceedings determined in an expeditious manner

‘subject only to ensuring that there is no disproportionate

added expense or drain on court time imposed’;

(ii) consideration should be given as to the extent to which

the first case to be tried is likely to bind all other cases in

whole or in part.

(iii) it is important to ensure that any measures adopted which

have the effect of preventing a case from progressing in

the ordinary way must be no more than is necessary and

proportionate to achieve the end of preventing

unnecessary expense or use of court time.

(f) There is no reason, ‘in principle’ why a number of cases could

not come to trial at the same time ‘with only those parties who had a

logical and legitimate interest in the particular set of issues in question,

having an entitlement to be heard in respect of those issues".

45. Reference is made by the parties to a number of other cases. Both sides refer to

the decision of Kelly J (as he then was) in J & E Davy T/A as Davy v Financial Services

Ombudsman & Enfield Credit Union [2008] IEHC 64. In that case, the applicant had

18 instituted a statutory appeal and judicial review proceedings. The court determined that

the judicial review proceedings should be determined first, as if the respondent's

decision were quashed, the statutory appeal would become moot. The court expressed

the view that the hearing of the appeal proceedings before the judicial review

proceedings “could not be justified having regard to the additional cost and expense

and public time that would be involved in such an exercise which might ultimately

prove to be otiose" [para. 13].

46. The defendant referred in some detail in its submissions to the recent decision

of the Court of Appeal in Tweed v Amazon.com Inc [2025] IECA 279, in which the

defendant applied to stay the plaintiff's defamation proceedings pending the

determination of a defamation action between the plaintiff and a third party. At para.

26 of his judgement, McDonald J stated as follows:

“… The immediate effect of the [High Court judgment refusing the stay] is that

the appellants will have to deliver a defence. They may also be put to the trouble

and expense of engaging in a discovery process and in raising or providing

particulars. As part of their defence, they may also have to carry out enquiries

(to the extent that this has not already been done) to evaluate the claim made by

Mr. Tweed and the approach which has been taken by the Georgetown

defendant in its defence. This will obviously involve incurring expense on their

part but that can be compensated by an appropriate award of costs and there is

no suggestion that Mr. Tweed will not be a sufficient mark for costs in the event

that he ultimately fails in his claim against them. In the circumstances, it is

difficult to see how the factors which are said to distinguish this case from Kalix

and Avoncore are engaged at this stage. The High Court has not made any final

decision in relation to the sequencing of the hearings as between this case and

19 the Georgetown proceedings. Nor, has the Court ruled out the possibility of a

concurrent trial".

Discussion

47. While the parties were assiduous in bringing relevant authorities to the attention

of the court, they accepted that they were unable to find an authority, the facts of which

were on all fours with those in the present case. Having said that, the authorities cited

above are of considerable assistance to this Court in determining how it should deal

with the High Court proceedings and the phase B proceedings.

48. The starting point for proceedings in the Commercial court is O.63A, r.5, which

provides that the court can give directions or make orders for the conduct of proceedings

“as [appear] convenient for the determination of the proceedings in a manner which is

just, expeditious and likely to minimise the costs of those proceedings”. It is clear also

that the court has an inherent power to stay one set of proceedings until a related case

has been determined. As McDonald J points out in Avoncore, “a stay of this kind is, in

essence, a procedural direction to the effect that no further steps should be taken in one

set of proceedings until some other proceedings, or set of proceedings, have been heard

and determined this…” [para. 29(b)].

49. The power to stay proceedings must be exercised so as to ensure a “just and

expeditious” trial in which costs are minimised and scarce court resources not wasted,

and any stay granted by the court “must be no more than is necessary and proportionate

to achieve the end of preventing unnecessary expense or use of court time” [para.

29(e)(iii)].

50. These general principles are accepted by the parties in the present case; they

differ strongly as to how the principles should be applied to the facts.

20 51. It is important to bear in mind that, while BAM is the plaintiff in each of the

High Court disputes, it initiated those proceedings as it was required to do so pursuant

to the contract in circumstances in which NPHDB rejected the recommendation of the

conciliator in relation to each of the disputes. It is the defendant which seeks to establish

in the High Court disputes that the awards of the conciliator are incorrect and should be

set aside, having paid substantial sums on foot of the conciliator’s awards.

52. This accounts for what both parties accept is an unusual situation whereby

BAM, as plaintiff in the High Court disputes, seeks a stay on proceedings it has itself

initiated in order to allow the phase B module to be determined.

53. If the application for a stay is refused, the plaintiff will be required to proceed

with serving statements of claim in each of the four disputes. As the issues in the phase

B module will not have been determined, the plaintiff will require to deliver statements

of claim which contain a number of different pleas based on its claims if the PB

instruction were valid, and its claims if its contention that the phase B instruction were

invalid is correct.

54. At para. 47 of his second affidavit, Mr Owens posits a third possibility; that “it

could be decided that the Instruction to commence Phase B was not validly issued but

that there were certain collateral agreements between the parties, or other consequences

flowing from a finding that the phase B Instruction was not valid…”. The defendant

says however that this third possibility is not an option. It says that the plaintiff has in

fact pleaded in its defence in the phase B proceedings that there is only one contract

and no other contractual arrangement, thus precluding any possibility of a collateral

contract.

55. In any event, both parties accept that alternate pleas will be necessary if the stay

is refused. However, the defendant appears to accept that case management of the

21 disputes would be necessary on the determination of the phase B proceedings, and that

at least two of the disputes should not go ahead until the issues in the phase B module

have been determined. As Mr Cush put it in oral submissions, “…All…the phase B

proceedings will do is to determine upon which basis these claims advance…”

[transcript page 99 lines 21 to 24] … “[A]ll we’re asking for here is Pleadings, and

that's not really going to take up court resources…” [p.101, lines 3 to 9]… “No-one is

suggesting that the trial goes ahead… before phase B…" [p.102, lines 3 to 5]…

“[T]hat's what we asked for; progression, at least to close of Pleadings, and then look

at it again…" [p.106, lines 20 to 22]. The plaintiff's position, as we have seen, is that

all four disputes require the determination of the phase B module before they can

proceed.

56. It does not appear, then, in relation to some or perhaps all of the disputes that

they will proceed to trial any quicker if the plaintiff is required to proceed with

pleadings containing alternative pleas. When questioned by the court as to what

advantage would accrue to the defendant by having the High Court disputes pleaded

out - see paras. 37 to 38 above - counsel submitted that, firstly, before NPDHB would

go into the phase B proceedings, it would understand the consequences of losing the

phase B proceedings; secondly, the pleading out of the High Court disputes would assist

possible resolution of the disputes [transcript pp. 96 to 97].

57. The defendant places particular emphasis on its contention that the pleading

issue “comes down to whether it is a disproportionate cost to ask [BAM] to plead it

out…" [transcript p. 91 lines 22 to 25]. The defendant points out that the evidence of

Mr Owens at para. 64 of the second affidavit suggests that the extra cost of pleading all

the possible alternatives - given the “significant amount of time and money for the

experts to produce reports on the alternative basis as the exercise being undertaken is

22 entirely different to what has been done before" - will “likely exceed €500,000

(including expert costs)". The defendant submits that this level of cost cannot be

considered disproportionate in circumstances where the four disputes have a total value

of €275m or thereabouts.

58. Counsel for the defendant referred to the judgement of O'Donnell CJ in Kirwan

v Connors [2025] IESC 21, and in particular para. 26 of that judgment, in which certain

general principles were set out as to how courts might deal with the issue of delay in

the context of an application to dismiss for want of prosecution. It was suggested that

the court in the present case was “being asked to sanction the type of delay that the

courts are increasingly condemning as inappropriate" [p.126 lines 9 to 25). In this

regard, the defendant was referring to the fact that, other than the issue of the

proceedings in each of the High Court disputes, no progress has been made in relation

to the claims the subject of these disputes since the order of McDonald J in the phase B

proceedings on 4 December 2020.

Conclusions

59. It is important to remember that the order of McDonald J of 4 December 2020

directing the hearing of the first module of the phase B proceedings was made on

consent. Both parties accepted at that point - and still accept today - that the hearing of

some or all of the High Court disputes will depend on the determination of the issues

in the phase B module. The conciliations had proceeded on the basis that the phase B

instruction was valid. If that were found not to be the case, it is clear that the claims in

the High Court disputes, as regards formulation and quantum, could change very

considerably.

60. If the claims are pleaded by BAM in the alternative, covering the various

options, the determination of the phase B module will result in the costs of the options

23 which are discarded as a result of that determination having been incurred to no

avail. The defendant argues that this is a natural and regular result of alternative pleas;

however, the present context is one in which alternative pleas will not be necessary if

the phase B module is decided before the pleading in the High Court disputes gets

underway.

61. The extra cost of alternative pleading is very substantial, as it will require expert

reports setting out each of the possible claims. A difficulty is that BAM does not accept

that the claims comprise a binary choice depending on the validity or invalidity of the

phase B instruction. The plaintiff says that there may be other possible bases of claim,

depending on the findings and conclusions of the court hearing that module.

62. While the defendant argues that such costs, although substantial, are not

disproportionate given the size of the claims, the plaintiff is still being required to

formulate different pleas and heads of claim, much of which will be jettisoned after

Module 1 of the phase B proceedings determines the proper basis of claim. The plaintiff

would have to plead in this way in circumstances where the question of which basis of

claim is correct depends on an issue which will be determined, not in the High Court

disputes themselves but in separate, albeit related, proceedings.

63. While the ongoing and ultimate cost of this hospital project has given rise to

much public comment and disquiet, this Court is bound to determine the dispute

between the parties in accordance with the contractual provisions the parties have

agreed, and to ensure that the parties bring those disputes before the court in the most

just and expeditious way possible. The dispute resolution mechanisms in the contract

provide for disputes being brought before the court in a somewhat piecemeal manner,

with separate proceedings having to be initiated in respect of each claim. If there is a

fundamental issue, the determination of which will clarify the basis upon which such

24 claims will be brought forward, so that extraneous issues may be excluded and clarity

brought to the basis upon which each claim is to be made, in my view such an approach

is to be welcomed.

64. The defendant itself recognised the benefit of achieving clarity in relation to

whether or not the phase B instruction was valid by initiating the phase B

proceedings. The parties agreed ultimately that this issue should be determined on a

separate module before other claims - particularly delay-based claims - were

decided. However, for reasons which are not entirely clear, the phase B instruction

module was not progressed by the parties.

65. Notwithstanding this, the logic and desirability of resolving the issue of the

validity or otherwise of the phase B instruction remains. One way or the other, a

determination of the module ordered by McDonald J on 4 December 2020 will result in

clarity as to the manner of calculation of the claims in the four High Court

disputes. Resources will not be wasted by the parties having to brief experts on all

possible permutations of BAM’s claims, or in NPHDB’s response to them.

66. If the disputes could proceed to trial without resolution of the phase B module,

one could understand the desire of NPHDB to press on with pleading out the disputes

at this stage. However, even the defendant accepts that at least two of the matters cannot

proceed without a decision as to the validity of the phase B instruction. The defendant

submits however that pleading out the disputes would enable it to interrogate the basis

of the claims and understand the consequences of losing the phase B module; it submits

also that a pleading of all the alternatives would promote a resolution of the disputes.

67. It does not seem to me that either of these reasons justifies the extra cost,

expense and delay of requiring the plaintiff to plead a number of alternative cases, with

all of the expert input and complex calculations which that would require. Pleadings

25 which contain numerous different alternative bases of claim serve only to obfuscate the

issues and militate against the clarity which a resolution of the phase B module would

produce. Pleading in this manner would not assist in advancing the dispute to trial,

given the need to amend the pleadings after resolution of the phase B module in any

event.

68. While it is argued by the defendant that alternative pleas are a normal and usual

feature of pleadings, and that it is inevitable that there will be wasted costs when the

most appropriate plea is identified or emerges, the current situation cannot be described

as usual or typical. The parties agreed in December 2020 to resolve in separate

proceedings an issue which subtended the four High Court disputes. The defendant now

wants the plaintiff to plead all possible bases of claim in the four disputes in

circumstances where it accepts that some at least of those issues will not come to trial,

and to incur significant cost in doing so, and in circumstances where there is a readily

available and court-mandated means agreed by the parties by which to determine the

basis on which the evaluation of plaintiff's claims should proceed.

69. The phase B module will involve a close examination of the validity of the phase

B instruction and the implications for that litigation and the High Court disputes arising

from the court’s view in this regard. It is certainly possible that, having heard the

evidence, a binary choice – the instruction is either valid or not valid – may not

recommend itself to the court. One assumes that the decision of the court hearing the

phase B module will have to be carefully scrutinised to determine the principles which

will govern the conduct of the Phase B proceedings and the High Court disputes going

forward.

70. Much emphasis was laid by the defendant on the proportionality of the extra

cost of pleading alternative bases of claim to the value of claims made. I think that

26 proportionality is only one element in the assessment of the utility of causing the

plaintiff to plead alternative bases of claim. It may well be that the extra cost is

relatively small when compared with the total value of the various claims. However, it

does not seem to me that the extra cost is warranted in circumstances where an

expedited trial of the phase B module would render that extra cost unnecessary.

71. In this latter regard, it should be remembered that the Commercial Court has

extensive powers to ensure that litigation is progressed. If the High Court disputes are

stayed, the phase B module can be case-managed to ensure that the utmost expedition

is exercised by both parties in bringing that module to trial. The parties will benefit

from the concentration of effort rather than having to progress this module and at the

same time engage in relation to the various different bases of claim in each of the High

Court disputes. In my view, it is better that the disputes go forward with clarity, which

can be achieved by the parties progressing the very mechanism they agreed in this

regard in December 2020.

Orders

72. I am satisfied that:

• this Court has jurisdiction to give a procedural direction that no further

steps should be taken in the High Court disputes until the phase B

module is determined, or until further order of the court;

• the court should stay the High Court disputes as set out at para. 2 above

pending the determination of the phase B proceedings, or until further

order of the court.

27 73. I will list the matter on Wednesday 22 July 2026 for consideration of the terms

of the order, and any ancillary orders which may be required, including in relation to

costs.

28