High Court strikes out claim for failure to particularize single economic entity plea and damages equivalence.

Neutral Citation Number: [2011] IEHC 504

THE HIGH COURT

COMMERCIAL

2010 11862 P

BETWEEN

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

IMAGINE COMMUNICATIONS GROUP LIMITED

PLAINTIFFS

AND

MOTOROLA LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Clarke delivered the 9th November, 2011

1. Introduction

1.1 The fact that companies are regarded as having a separate legal existence or personality to their shareholders is, perhaps, the

most fundamental aspect of corporate law in many countries including Ireland. That separation between companies and their

shareholders confers many advantages, most particularly where the company has limited liability so that, in the ordinary way, the

company’s debts remain with the company and cannot be visited on the shareholders. The shareholders may lose their investment in

the case of insolvency but not more. There are, of course, certain limited circumstances where the courts have been prepared to go

behind the corporate structure (by engaging in what is sometimes referred to as lifting the corporate veil), but those circumstances

are rare and closely defined. Our law, therefore, maintains, largely to the advantage of those who wish to engage in commerce

through companies, a strict distinction between a company and those who may be involved in it such as its shareholders or, indeed,

directors elected by those shareholders to run the company.

1.2 It needs to be noted that one of the consequences of that clear distinction is that, where the promoters of a corporate

enterprise choose to run their business through a series of companies, each of those companies has a separate legal existence and

personality separate not just from the ultimate beneficial owners but also one from the other. It is, of course, a matter of choice for

the promoters as to what corporate structure they wish to put in place at the outset. However, where those promoters choose to

form a group of connected companies, the relevant promoters concerned create a situation where there are a number of separate

corporate entities each with its own separate legal existence and personality but where there may be some form of interlocking

shareholding arrangements which give it its group structure. There may be many reasons why those behind a commercial enterprise

choose not just to establish a company through which to carry on their enterprise, but choose to establish a number of interlocking

companies within a group. One must assume that, at least in most cases, the division of the company’s assets and business into

separate companies is considered to have an advantage. This may well be so, not least, perhaps, because each separate company

has its own limited liability. It follows that, again ordinarily and subject to very limited exceptions, the debts of one company cannot

be visited on another company within the group unless there are in place obligations, such as cross guarantees, whereby the liabilities

of one company are guaranteed by others.

1.3 The fact that such a structure may be seen to be advantageous does not, of course, mean that it may not also give rise to

problems in certain circumstances. While the promoters may look on each company as forming part of one large group, the fact that

they have chosen to establish a series of interconnected companies, means that, for many purposes, each company must be looked

on as a separate entity with its own assets and liabilities. That circumstance provides the backdrop to the difficulty which has arisen

in these proceedings and to the application now brought by the defendants (“Motorola”) which seeks to have the current statement

of claim struck out. In order to understand the precise issues which have arisen, it is necessary to say a little about the factual

background to the issues which arise in these proceedings generally.

2. Factual Background

2.1 Throughout 2009 a series of agreements were entered into between Motorola and the first and second plaintiffs (“Internet

Services” and “Broadband Services” respectively). The agreements related to the provision by Motorola of the so called WiMax

telecommunications network. The third named plaintiff (“Imagine”) is the ultimate parent of both Internet Services and Broadband

Services and a number of other companies within the Imagine group. The plaintiffs are referred to collectively as the “Imagine

Companies”.

2.2 Leaving aside for the moment the separate identity of the various companies within the Imagine group, at a general level

complaint is made that Motorola failed in its obligations under the contracts to which I have referred both as to the speed with which

the relevant network was rolled out and as to the quality of the services provided. Motorola denies any failing on its part. Obviously a

full trial will be required to determine the accuracy or otherwise of those allegations. The problem that has emerged, so far as the

proceedings are concerned, is as to the precise company or companies within the Imagine group that can properly be said to have a

legal claim to damages in the event that it is established, at trial, that Motorola is guilty of breach of contract. That difficulty has led

to a significant complication in the pleading of this case which has already been the subject of a decision of Kelly J. (IBB Internet

Services Limited & Ors v. Motorola Limited [2011] IEHC 253). Against that background I now turn to the procedural history relevant

to the application which I have to decide.

3. Procedural History

3.1 The history of these proceedings from the time when they were commenced on the 23rd December, 2010, up to the judgment of

Kelly J. to which I have referred, which occurred on the 6th July, 2011, is fully set out in that judgment and it is therefore

unnecessary to repeat it here. Suffice it to say that, despite three notices for particulars and three responses thereto followed by

the delivery of an amended statement of claim, Kelly J. indicated, at p. 8 of his judgment, that he was of the view that there was “a

good deal of force” in the criticisms then made on behalf of Motorola as to the adequacy of the statement of claim.

3.2 For the reasons set out in that judgment Kelly J. made an order which, in relevant part, provides for the following:-

“And the court proposing to give the Plaintiffs a final opportunity to make the case which they wish and to do so in a form

that be readily understood

The court doth grant leave to the Plaintiffs for the delivery of a re-amended Statement of Claim

And the Court doth direct that that document must set out the case which the Plaintiffs wish to make and the facts

which they propose to rely upon

And the court doth direct that the plaintiffs’ re-amended Statement of Claim must be pleaded in such a way as to make

any request for further particulars unnecessary

And the court doth direct that the plaintiffs’ re-amended Statement of Claim must contain full particulars of all factual

matters which will be relied upon as part of the plaintiffs’ case”(sic.).

3.3 As a result a re-amended statement of claim was delivered on the 29th July, 2011. Motorola says that that re-amended

statement of claim should be struck out on any or all of the following three bases:-

A. It is said that the re-amended statement of claim does not comply with the terms of the order to which I have just

referred;

B. it is also said that the re-amended statement of claim contains amendments or changes which were not authorised by

that order; and

C. it is said that the re-amended statement of claim is, in any event, such as would tend to prejudice or delay the fair

trial of the action (and thus is, in the slightly old fashioned term used in this context, embarrassing) and, therefore, liable

to be struck out under O. 19, r. 27 of the Rules of the Superior Courts.

3.4 This judgment is directed to that application. It seems to me that a convenient starting point has to be to consider the precise

meaning of the order of Kelly J., for there was a significant debate between counsel as to what that order required.

4. The Order of the 6th July

4.1 Two issues arose between the parties as to the proper interpretation of the order of the 6th July. The first concerns the scope of

the amendments which were permitted to be made by virtue of that order. The context to the argument is the debate which occurred

at the hearing which led to the judgment of the 6th July. At that hearing counsel for the Imagine Companies outlined the case which

his clients wished to make. It is said that, on its proper interpretation, Kelly J. permitted the statement of claim to be amended but

only to include a proper pleading of the issues which had been addressed by counsel in that argument. It is said that some of the

amendments included in the re-amended statement of claim go beyond the scope of the arguments put forward by counsel and, thus,

go beyond what was permitted by the order of the 6th July.

4.2 However, I am not satisfied that the permission given to the Imagine Companies to amend their statement of claim is as narrow as

Motorola suggests. The order notes that the Imagine Companies are to be given “a final opportunity to make the case which they

wish” and goes on to give leave for the delivery of a re-amended statement of claim. There is nothing in the form of the order which

suggests that the leave to amend is being restricted within the parameters of the argument addressed by counsel at the hearing

which led to that order. I am not, therefore, satisfied that the order of the 6th July imposed a limitation on the Imagine Companies

which required them to confine any amendments to the statement of claim to issues which were addressed in the course of argument

before Kelly J.. On the basis of that interpretation it seems to me that the argument put forward by Motorola under that heading must

necessarily fail.

4.3 The second issue of contention between the parties as to the proper interpretation of the order of the 6th July stems from the

detailed additional requirements contained in the order which specify that the re-amended statement of claim must set out the facts

which the Imagine Companies propose to rely on, pleaded in such a way as to make any request for further particulars unnecessary,

with such pleading to contain full particulars of all factual matters which are to be relied on as part of the Imagine Companies’ case.

4.4 Counsel for Motorola argues that those provisions of the order of the 6th July impose an additional obligation on the Imagine

Companies to particularise their claim beyond the ordinary obligation which arises under the rules and which has been the subject of

extensive case law. It is common place that even detailed statements of claim give rise to a notice for particulars whereby the

defendant seeks greater detail as to aspects of the claim. The boundaries of what may legitimately be sought by way of further

particulars are explored in cases such as McGee v O’Reilly [1996] 2 I.R. 229, BA Pension Trustees v McAlpine (Court of Appeal) 72 BLR

26 and Thema Institutional Fund PLC & Anor v HSBC Institutional Trust Services [Ireland] [2010] IEHC 19. In most cases, provided

that the statement of claim contains sufficient information to give an appropriate outline of a plaintiff’s case, a court is most unlikely

to regard the statement of claim which may lack full detail as being unsatisfactory to the point of warranting being struck out, but

rather will require a defendant who feels that more detail is needed, to serve an appropriate notice for particulars.

4.5 However, it seems to me that counsel for Motorola must be correct when he argues that the specific provisions of the order of

Kelly J. to which I have drawn attention must be taken to be meant to impose some additional obligation beyond what I might call the

ordinary obligation to particularise a statement of claim. If the intention of Kelly J. was simply to allow a re-amended statement of

claim which complied with the ordinary rules and practice as to its detail, then there would have been no need for the order to go

beyond the provision which gave leave to the Imagine Companies for the delivery of a re-amended statement of claim. The following

provisions of the order, and in particular the provision that required that the re-amended statement of claim “must be pleaded in such

a way as to make any request for further particulars unnecessary”, would have been redundant and of no meaning if the intent was

simply that the re-amended statement of claim was to comply with ordinary practice. It seems clear to me that, having regard to the

unsatisfactory history of the pleading of the case as outlined by Kelly J. in his judgment, an additional burden is, by the order of the

6th July, placed on the Imagine Companies. To construe the order otherwise would be to assume that a series of provisions were

included in the court’s order which had, in effect, no real meaning or effect.

4.6 There remains the question of the extent of that additional burden placed on the Imagine Companies. In the course of argument

counsel for the Imagine Companies suggested (correctly so far as it goes) that there could hardly ever be a statement of claim in

respect of which the defendant might not wish to seek some further details. However, it seems to me that the order of Kelly J. is

carefully crafted so as to require the re-amended statement of claim to be pleaded in a way which makes any request for further

particulars “unnecessary”. There may well be information which a defendant might find interesting and which, at some stage, that

defendant might be entitled to have before the case comes on for hearing. However, it might not be “necessary” for the defendant to

have that information to properly understand the plaintiff’s case. It seems to me that the test of compliance with the order of the 6th

July must be to consider whether there are aspects of the re-amended statement of claim in respect of which particulars would be

“necessary”. I propose applying that test to those aspects of the statement of claim in respect of which complaint is made.

5. Motorola’s Complaints

5.1 The principal focus of the argument put forward on behalf of Motorola centred on what were said to be “new” aspects of the re-

amended statement of claim. In that context it is necessary to return to the overall problem identified at the beginning of this

judgment. The problem which the Imagine Companies collectively face is that the business of exploiting the WiMax network was, it

would appear, spread out among a number of different companies within the Imagine group. However, the direct contractual relations

(at least so far as the written contracts are concerned) with Motorola were initially with Broadband Services and, subsequently, as a

result of a novation agreement, with Internet Services. The extent to which either or both of those companies is entitled to claim

damages in respect of losses which would have been incurred by other companies within the group was an obvious hurdle which the

Imagine Companies generally had to address. It should also be noted that Imagine itself was not an initial plaintiff in the proceedings

and was only added at a subsequent stage. During the argument before Kelly J. counsel for the Imagine Companies articulated a case

based on the contention that all of the companies within the Imagine group were a single economic entity such that it was possible

for the parent company (that is Imagine) to claim damages arising out of a contract entered into by some members of the group (at

different times Internet Services and Broadband Services) and notwithstanding that relevant losses may have arisen in other

companies within the group who were not plaintiffs. There are obvious legal difficulties as to whether a claim can be brought in those

circumstances. While there have been some cases where a plaintiff has been able to pursue damages against different companies

within the same group on the basis that the group operated as a single economic entity, it does not necessarily follow that the same

argument works in reverse so as to permit a claim to be made by, in substance, a group of companies, even though only some of

those companies are contracting parties while losses were suffered by others. It is not, of course, necessary for me to consider that

legal issue at this stage. Rather I am concerned solely with the pleadings. The re-amended statement of claim does set out such an

allegation which is particularised.

5.2 However, in addition to that case a plea is made in the re-amended statement of claim which asserts a collateral agreement on

which Imagine claims to be entitled to succeed. In general terms, the plea made is that, as problems were encountered, it is said,

with Motorola, assurances were given which amounted to a collateral warranty that the service would ultimately be provided to an

appropriate standard and on time. The matter is pleaded at para. 22 of the re-amended statement of claim in which it is said that

Imagine entered into a collateral contract with Motorola whereby, in consideration of Imagine not causing Internet Services and

Broadband Services to withdraw from the relevant contracts and sue for damages, Motorola, it is alleged, agreed with Imagine that it

would resolve the problems concerned.

5.3 Paragraph 22 in turn refers back to para. 21 which refers to various representations and warranties allegedly given by Motorola as

having occurred “during October, November and December, 2009 and January and February, 2010”. It is as a result of those

representations and warranties that Motorola is said to have entered into the collateral contract to which I have referred.

5.4 While one could, in ordinary circumstances, debate the extent to which it was “necessary” to get more detailed particulars of

when and by whom the relevant representations were said to have been made, one particular feature of this case seems to me to put

the issue beyond doubt. The principal contract in writing is a so called master services agreement (“MSA”) entered into on the 13th

October, 2009, between Broadband Services and Motorola. For technical reasons which are said to be associated with equipment

financing an agreement of the 10th December, 2009, (“the Novation Agreement”) was made between Motorola and Internet Services

and Broadband Services as result of which, amongst other things, the MSA was novated to Internet Services.

5.5 What is striking is that both of these important contractual documents were executed at a time when it is now said that Imagine

obtained the benefit of a collateral contract to which it was a party even though all parties chose to enter into written agreements,

during the same period, to which Imagine was not a party. I should emphasise that nothing in this judgment should be taken as

expressing any view on whether a claim of the type concerned is capable of being maintained. That is an issue for another day.

However, what seems to me to be absolutely clear is that it is “necessary” for Motorola to know whether any of the representations

or warranties sought to be relied on (and thus the collateral contract deriving from them) were made either before the MSA was

executed, between the execution of the MSA and the Novation Agreement, or after the Novation Agreement. Those particulars are

not simply matters of detail but matters of significant substance which have the potential to play a very significant role in the case.

To put it neutrally there will at least be a question as to whether representations given before the Novation Agreement could be said

to confer legal rights directly on Imagine in circumstances where the parties entered into that Novation Agreement and where for

whatever reason Imagine was not to be a party to the MSA but Internet Services was.

5.6 It seems to me to follow from that analysis that the re-amended statement of claim is not one which, in the words of the order of

the 6th July, makes “any request for further particulars unnecessary”. I am satisfied that the re-amended statement of claim fails to

meet the standard imposed by that order in a significant and material way and not just in a minor or technical way which might

legitimately be overlooked or be capable of being easily remedied.

6. Consequences

6.1 It is clear from its terms that the order of the 6th July was designed as a “final opportunity”. The re-amended statement of claim

has failed to meet the standard imposed by that order and it seems to me that I am left with no option but to make the order sought

on behalf of Motorola which is to strike out the statement of claim.

6.2 It is important to emphasise that Motorola did not, in this application, seek to have the proceedings themselves struck out. Rather

it is the statement of claim which was sought to be struck out.

6.3 It follows that, immediately after the striking out of the statement of claim, there will remain an obligation on the Imagine

Companies to file a statement of claim. I propose to give the Imagine Companies an opportunity to file a new statement of claim

within such time as may be fixed following discussion with counsel. I further propose to give directions, not dissimilar to those included

by Kelly J. in the order of the 6th July, as to the content of that new statement of claim. So as to minimise the risk of further

difficulties it seems to me that I should record that at least some of the other complaints made by Motorola concerning the “new”

elements of the statement of claim and the extent to which those new elements were not particularised were also well founded. While

particulars are given as to the basis on which it is contended that a whole series of companies within the Imagine group (including but

not limited to the plaintiffs in these proceedings) form a single economic entity, no particulars are given as to how it is said,

separately, that Broadband Services and Internet Services together form a single economic entity. It is, in my view, legitimate for

such a plea to be included in the alternative. However, it does not seem to me, given that it is an alternative plea, that the

particulars set out for suggesting that a whole range of companies form a single economic entity can also be used to properly

elucidate the separate claim to the effect that just those two companies are a single economic entity. In addition, I am not satisfied

that the re-amended statement of claim sets out with any sufficient clarity the basis, ultimately articulated by counsel in argument,

for suggesting that the damages that could be due to Internet Services and Broadband Services were exactly the same as the

damages which would be due to Imagine under the wider single economic entity argument.

6.4 For the avoidance of doubt, I am satisfied that, if the matters which I have just addressed are remedied, the statement of claim

will be sufficient to meet the requirements of the order which I intend to make. However, that does not mean that Motorola are

disentitled to raise further particulars if they so wish.

6.5 For the further avoidance of doubt, it seems to me that some attempt should be made by the parties to extract, from the various

particulars already sought and delivered in this case, the questions and replies which remain relevant to the case as it will now be

pleaded and to include all of those particulars in a single document which can, in due course, form an easily referable part of the

pleadings.

7. Conclusions

7.1 I propose, therefore, to strike out the statement of claim on the basis that it has failed to comply with the order of the 6th July. I

propose to allow the Imagine Companies an opportunity to file, within a period to be discussed, a new statement of claim. I propose

to direct that that new statement of claim must contain particulars of those matters identified in this judgment as being inadequately

set out. I will fix a time for Motorola to raise any further particulars which they wish and a time for replying to those particulars.

7.2 As indicated to counsel at the close of the hearing, I will also rule on the question as to what order as to the costs of these

proceedings to date is just in all the circumstances of the case when counsel have had an opportunity to consider this judgment.