The High Court’s Commercial division has refused an application by six plaintiffs to add a deed of confirmation to their claim against eight defendants. Mr Justice Quinn ruled on 13 January 2021 that the proposed amendment came too late in a trial already under way and sought to address a difficulty in proving an earlier assignment.
The underlying case concerns allegations that former employees Patrick Cox, Liam Foley and Eoghan Kearney took or used confidential information and, in Mr Cox’s case, diverted investment opportunities. The plaintiffs seek declarations, accounts and damages for several alleged breaches of contract and duty. Those allegations have not been determined in this judgment.
The plaintiffs rely in part on Mr Cox’s 2010 employment contract with Tiger Developments Limited, later renamed Carbon Developments Limited. The plaintiffs say Carbon assigned the contract to them in May 2017. The defendants dispute the assignment’s validity and effect, including whether it could be transferred without Mr Cox’s consent. Those questions remain for trial.
The trial began in January 2020. The defendants would not agree to admit the assignment without formal proof. A version presented in court lacked Carbon’s seal. The plaintiffs later produced a copy showing a seal but said the counterpart bearing the original seal could not be found. In October 2020, Carbon and the plaintiffs executed a Deed of Acknowledgment and Confirmation, which the plaintiffs sought permission to plead as an alternative basis for relying on the assignment.
The defendants opposed the amendment, arguing it was an attempt to repair an evidential gap after most of the plaintiffs’ witnesses had testified. They also argued the new claim could require further evidence and discovery, causing prejudice. The plaintiffs said the deed raised a real issue between the parties and would cause little additional prejudice.
Justice Quinn found that the proposed deed was a new event created by the plaintiffs after the trial began and after their attempts to locate the sealed counterpart and obtain agreement to admit the assignment had failed. Given the late stage of the trial, the court scrutinised the request closely and concluded the amendment would not simply clarify the existing pleadings. It could require further evidence and cause prejudice to the defendants.
The judge also considered allegations that the plaintiffs’ solicitor, Patricia O’Brien, had intentionally misled the court and defendants about the assignment. He accepted her evidence that she did not intend to mislead. He found that letters in May 2020 were misleading in the impression they gave that the original sealed document had been found, but the defendants were not misled and the impression was later corrected.
The application was dismissed. The ruling does not decide whether the 2017 assignment was valid or effective, and it does not prevent the plaintiffs from relying on that assignment under the existing pleadings at trial.