The High Court refused a late application by Richard Knowles to amend his claim against the Electricity Supply Board (ESB), finding that the proposed changes introduced a new cause of action and would cause the defendant irremediable prejudice.
Knowles’s 2009 proceedings concern a contract awarded in about November 2004 for low-voltage wooden pole work. He pleaded that the ESB had represented that acquiring equipment would lead to work worth €782,000 and keep him operating at 80% capacity. He claimed that he received less work than represented and initially quantified his loss at more than €500,000. Those matters were allegations, not findings in this judgment.
The proposed amendment, raised in November 2018, would add a claim that the contract was subject to EU public procurement rules and that work covered by it had unlawfully been awarded to contractors who had not tendered. The judge said this was an entirely new plea, absent from the original claim. The application followed an unsuccessful mediation and the receipt of unredacted discovery documents in late 2017 or early 2018. The plaintiff’s solicitor said the claim had been reassessed while preparing for mediation and trial; the judge found no good reason why the new matters had not been pleaded earlier.
The ESB opposed the amendment. Its legal department representative said the new claim would require evidence about other contractors’ tendering processes and the work they performed. She also said that files for those other procurement frameworks had been destroyed under the ESB’s seven-year document retention practice, witnesses would have to recall events from 2004, and the defendant’s accountant would need to revisit his report. The ESB further argued that allowing the amendment would delay the trial and prevent it from relying on a limitation defence. The plaintiff did not reply to the ESB affidavit.
Mr Justice Noonan said the delay was unacceptable and that the age of the events gave rise to presumptive prejudice, despite the witnesses remaining available. He regarded the destroyed files as additional, irremediable prejudice because the ESB could not reasonably be expected to defend the new claim without them. He also held that the proposed procurement claim relied on new facts supporting a new cause of action, rather than facts that merely clarified the existing claim. The fact that the claim would otherwise be statute-barred was not, by itself, decisive.
The court refused the amendment application. The judgment addressed that application; it did not determine the original claim or the ESB’s counterclaim. A provisional trial date of 15 January 2019 had previously been fixed.