The High Court has allowed Microsoft Ireland Operations Limited to amend its statement of claim against Arabic Computer Systems (ACS) and National Technology Group (NTG), permitting it to refer expressly to a 2013 agreement with ACS. The court rejected the defendants’ objections that the change could deprive them of a limitation defence or improperly avoid a further application to serve proceedings abroad.
The decision, delivered by Mr Justice David Barniville on 29 July 2021, concerns the pleadings in a claim for US$31,539,677.95, or its euro equivalent. It does not decide whether the defendants owe that sum. The case was proceeding towards a plenary hearing after Microsoft elected not to pursue summary judgment.
Microsoft’s original claim included ten invoices issued between December 2015 and September 2016. They related to purchase orders ACS had submitted between December 2013 and August 2014, during the term of the 2013 Microsoft Channel Partner Agreement. Microsoft’s proposed amendment added a paragraph describing that agreement and included it among the contracts on which the company relied. No invoices or remedies were added, and the total claimed did not change.
The defendants argued that ACS’s payment obligation arose when the purchase orders were submitted, more than six years before the amendment application, potentially giving them a limitation defence. Microsoft said payment fell due on the invoice dates. The court considered the contractual terms, purchase orders and invoices, as well as uncontested evidence that the relevant invoices were the third of three annual instalments for each order. The payment due dates shown on the invoices fell within six years of the proceedings’ commencement in August 2018.
For the purpose of deciding the amendment application, the judge concluded that the defendants had not established an arguable limitation defence. He also found that the ten invoices had been included in the claim from the outset, so the amendment did not introduce new invoices or a new sum. Even if the amendment added a cause of action, he considered it arose from the same or substantially the same facts as the original claim. He made no special direction preserving the limitation issue for trial.
The defendants also argued that Microsoft should have to seek fresh leave to serve the amended claim outside the jurisdiction. The judge rejected that objection, noting that leave to serve the original summary summons had already been granted and that the invoices and 2013 agreement had featured in the earlier jurisdiction proceedings. He held that a further application was unnecessary.
The court granted Microsoft liberty to deliver the amended statement of claim and varied its earlier directions to provide for further pleadings. The precise further directions were left for discussion with counsel. The judgment addresses the amendment application; it does not determine the underlying debt claim.