The High Court has granted Deloitte & Touche Ireland’s indemnifiers leave to make a late tender offer in a dispute with Stoneavon Holdings, subject to a costs condition if Stoneavon accepts it.
Mr Justice Paul Gilligan ruled on the application on 12 May 2016, 19 days before the scheduled trial. The four-week trial was due to begin on 1 June and concerned a claim of approximately €4 million. The judge said he would hear counsel’s submissions on the form of the order; the judgment does not state the amount of any offer or that one had been made.
The proceedings began in 2003. Deloitte & Touche, a defendant to Stoneavon’s counterclaim, sought permission for its indemnifiers to make an offer of payment in lieu of lodging money in court. The parties had agreed in 2015 that Deloitte & Touche could make such an offer by 1 December. The matter was listed for mention on 17 December, when the court was to be assured the case remained ready for trial.
The parties discussed mediation in 2015, but it did not take place until 26 January 2016 and was unsuccessful. Deloitte & Touche said it had avoided making an offer before the deadline because it did not want to jeopardise mediation. Its first stated indication that it intended to apply for permission came on 24 March 2016.
Stoneavon opposed the application. Its solicitor argued there had been no agreement that mediation could be followed automatically by a court offer, and that a post-mediation offer could give Deloitte & Touche an advantage from insight into Stoneavon’s position. He also cited the late timing, the undisclosed proposed offer amount, and Deloitte & Touche’s lack of response to a December request to admit documents.
The judge said there was no general bar to a tender or lodgement application after mediation. He did not accept that the unsuccessful mediation alone justified refusing permission. However, he recognised a risk of unfairness to Stoneavon so close to trial.
To address that risk, the court made permission conditional on Stoneavon being entitled to its costs if it accepted the tender. Those costs are to be taxed if not agreed and may include trial preparation costs, witness expenses, counsel’s brief fees and other necessary trial expenses. The judgment records the ruling on permission and proposed condition; it does not set out the final drawn order.