The High Court has allowed Fastwell Limited to amend its claim against OCL Capital plc in a dispute over an agreement for lease of two kiosks at Grand Canal Harbour, Dublin. The permission is subject to conditions, and the court did not decide the merits of the underlying dispute or the proposed new claims.
Mr Justice Tony O’Connor’s judgment, delivered on 1 March 2017, concerned an application made after the trial had begun. The original claim challenged OCL’s July 2015 termination notice. Fastwell argued that a certificate under the Dublin Docks Development Act 1997 counted as planning permission under the agreement for lease, which required permission to be obtained within six months.
During the trial, Fastwell raised a broader “contractual matrix” and sought to add a claim for rectification. It accepted that the agreement did not include a sub-floor basement area beneath the kiosks, which it said had mistakenly been understood to be included. The proposed amendments alleged that OCL and people acting for it knew about plans extending beyond the kiosk footprints, including works affecting the basement car park. These are claims in the proposed pleading, not findings by the court.
The judge said the late changes had lengthened the trial. He nevertheless concluded that potential prejudice could be addressed through conditions. He said it was too early to determine the effect of inconsistencies between the original and amended claims. The court also did not decide whether the proposed rectification claim would succeed, describing the claim about the extended areas as potentially tenuous in light of the evidence.
Fastwell was given seven days from perfection of the order to deliver the amended claim. Unless it can satisfy the court at an early hearing that refusing each other remedy would cause irreparable loss, it must limit its claim to damages. The court also said it would hear the parties on whether proceedings should be stayed until increased security for costs is lodged; no increase was set in this judgment. OCL may file a defence within 28 days after delivery of the amended claim, with Fastwell allowed 14 days to reply.
The judge indicated that the order would prevent Fastwell’s principal witness, Harry Crosbie, from revisiting evidence already tested in cross-examination, unless a compelling argument is made. The court retained control of the proceedings and expected the parties to seek a date later in 2017 to resume the trial. The judgment did not resolve liability, the termination dispute or the final relief available.