The High Court refused White Young Green Environmental (Ireland) Limited leave to make an offer of tender of payment against Anna Gethings’s counterclaim, finding that it would be unfair after the trial had begun and the parties had taken part in an unsuccessful mediation.
Mr Justice Binchy delivered the judgment on 20 July 2015. The application was made under Order 22, rule 1(1) of the Rules of the Superior Courts. It concerned the timing of a proposed tender offer; the judgment did not decide the merits or value of the underlying counterclaim.
The company had sued Gethings in 2008 for €33,985.37 in professional fees. She counterclaimed, alleging negligence in services connected with a proposed residential development and planning requirements concerning a discharge licence. Her pleaded counterclaim was initially €260,393, including €210,666.18 in claimed interest. Updated particulars in May 2014 raised the claim to more than €1.5 million, including €594,459.67 in interest. The judgment records that the claimed interest was stated to be continuing.
The company was placed in liquidation in August 2012. In October 2014, the court granted Gethings an order under section 222 of the Companies Act 1963 allowing her to proceed with the counterclaim. The company later sought discovery, and Gethings delivered discovery documents in February 2015. The trial began on 14 April 2015. On the court’s urging, the parties sought an adjournment for mediation; the proceedings were stayed for that purpose. Mediation did not settle the dispute, and a new trial date of 19 January 2016 was fixed. The trial was estimated to take two weeks.
The company argued that it could not properly assess a tender offer until after the section 222 order and discovery, and said it had faced difficulty after its expert witness died. Gethings opposed the application, submitting that mediation had given the company insight into her approach and that she had shared expert reports during mediation. Her counsel accepted that no specific prejudice to her had been identified, but argued that granting leave would be unfair.
The judge said late tender applications are generally permitted where they cause no prejudice or unfairness, but applications following settlement discussions require closer scrutiny. He found that mediation likely gave the company a better understanding of Gethings’s position, improving its ability to formulate an offer. He also said allowing a party to gain a litigation advantage from mediation could undermine the policy of encouraging alternative dispute resolution. The company had at least two months before trial to consider making an offer and could have done so before the trial began.
The court therefore refused leave to make the tender offer. The judgment addressed only that application; the counterclaim remained for trial.