High Court refuses to strike out pleas regarding agent liability and illegality in damages inquiry. The court allows the case to proceed. The court held that prior findings do not preclude new arguments on agent liability. The court noted the illegality defense was re-framed for damages reduction. The court declined to strike out the pleas as they are relevant. The court emphasized the need for broad-brush cost management.

COMMERCIAL COURT

[2025] IEHC 575

RECORD NUMBER 2017/6193P

THE HIGH COURT

BETWEEN

ANN NOLAN, ELIZABETH NOLAN, RICHARD

NOLAN, PATRICIA NOLAN, JOAN NOLAN, SALLY NOLAN AND QUEST

CAPITAL TRUSTEES LIMITED

PLAINTIFFS

AND

DILDAR LIMITED, CIARAN DESMOND, COLM S. McGUIRE,

DERV ALM. O'HALLORAN FORMERLY TRADING UNDER THE STYLE AND

TITLE OF McGUIRE DESMOND SOLICITORS, A FIRM, JOHN MILLETT,

PINNACLE PENSIONER TRUSTEES LIMITED, DILDAR LIMITED, JOHN

MILLETT INDEPENDENT FINANCIAL ADVISORS LIMITED,

DILLON KENNY, DARREN KENNY, AND PAUL KENNY

DEFENDANTS

JUDGMENT of Mr. Justice Michael Twomey delivered on the 29th day of October, 2025

INTRODUCTION

1. The first defendant (“Dildar IOM”) and the seventh defendant (“Dildar Ireland”), which for ease of reference are referred collectively as “Dildar”, are seeking an order under Order

19 Rule 27 of the Rules of the Superior Courts striking out various pleas made by the plaintiffs (the “Nolans”). The pleas are contained in the Nolans’ Points of Defence in response to Dildar’s Points of Claim. These pleadings relate to a court-ordered inquiry into the amount of damages to be paid to Dildar, which inquiry is to be held at a future date by the High Court.

2. The Points of Claim were issued by Dildar arising from the decision of McDonald J. in Nolan & Ors v Dildar & Ors [2024] IEHC 4 and his Order dated 20 February 2024, which

decision was upheld in its entirety by the Court of Appeal (Nolan & Ors v Dildar & Ors [2024] IECA 298). Definitions used in this judgment have the same meaning as those in McDonald J.’s judgment, unless the context otherwise requires.

3. The background to this matter is that an interlocutory injunction had been granted to the Nolans on 26 July 2017 pending the trial of the action, which trial commenced on 3 May 2022. The injunction restrained Dildar IOM, the legal owner of the Nemo Rangers property (the “Site”), from disposing of those lands.

4. At the end of a very long and exceptionally complicated litigation (as evidenced by the fact that it involved a staggering 69 interlocutory orders before the trial even commenced), McDonald J. delivered a detailed and comprehensive judgment on 10 January 2024. In that judgment, McDonald J. discharged the interlocutory injunction, and he ordered an inquiry into the damages sustained by Dildar. The entitlement to damages arises because of the undertaking which had been given by the Nolans in order to secure that injunction. In that undertaking the Nolans undertook to be liable for any damages suffered by Dildar, in the event that at the trial of the action it transpired that the interlocutory injunction should not have been granted, which is what occurred.

5. Thus, the effect of McDonald J.’s judgment is that there has to be an inquiry into the level of damages the Nolans must pay Dildar for the loss suffered by Dildar IOM in not being able to sell or develop the property between 26 July 2017 (when the injunction was granted) and 20 February 2024 (when the Order, providing for the lifting of the injunction, was perfected).

6. The Points of Claim issued by the Dildar outline the basis for its claim that it should be paid €20,822,000 in damages. The Points of Defence issued by the Nolans dispute the basis for Dildar’s claim for this amount of damages.

7. The issue before this Court is that Dildar claims that four pleas which are contained in Nolans’ Points of Defence are irrelevant or that they relate to issues which were dealt with in the trial before McDonald J. and so should be struck out.

8. In the application before this Court, the Nolans point out that the lands were purchased in September 2013 for €2,828,192.79 with a view to being developed into housing. However, they completely reject Dildar’s claim that Dildar has lost anything close to €20,822,000 by not being allowed to develop the lands during the relevant period, particularly when the price of property has risen considerably in that period and when Dildar’s own experts say that it would have cost €50,056,814 to develop the Site.

9. More specifically, the Nolans say that the disputed pleas in the Points of Defence are highly relevant to the likelihood of Dildar IOM getting funding and so being able to develop the Site in the first place. They also claim that, insofar as some of the issues raised in their pleas (regarding the unlawful actions of agents acting for the defendants) were dealt with at the trial, that does not mean that those issues are not relevant to any inquiry into what was the actual loss suffered by Dildar.

THE LAW APPLICABLE TO STRIKING OUT PLEADINGS

10. In determining whether to strike out pleadings, it is clear from the judgment of Clarke J. in Ryanair v Bravofly [2009] IEHC 41 at para. 5.2 that: ‘A court should not lightly exclude matters from pleadings where there is at least some reasonable possibility that the material pleaded could be relevant. Matters should only be excluded where it is clear that such pleading is irrelevant.’

11. The pleas which are sought to be struck out in this case relate to the enforcement of an undertaking. For this reason, it is also relevant to note that in Caldwell v Tracey [2010] IEHC 533 at para. 37 Laffoy J. quoted from Lloyd L.J.’s judgment in Financiera Avenida SA v. Shiblaq [1991] TLR 3. She quoted the following extract: ‘Two questions arise whenever there is an application by a defendant to enforce a cross-undertaking in damages. The first question is whether the undertaking ought to be enforced at all. This depends on the circumstances in which the injunction was obtained, the success or otherwise of the plaintiff at the trial, the subsequent conduct of the defendant and all the other circumstances of the case. It is essentially a question of discretion. The discretion is usually exercised by the trial judge since he is bound to know more of the facts of the case than anyone else. If the first question is answered in favour of the defendant, the second question is whether the defendant has suffered any damage by reason of the granting of the injunction.’ (Emphasis added) Thus, when this Court is considering whether to strike out pleas on the basis that they are, or are not, relevant to the assessment of damages, that relevance is determined by all the circumstances of the case. Having made that determination, it should only strike them out if it is clear that they are not relevant. The trial judge is normally the judge doing the assessment of damages

12. There is another point which is important to bear in mind, which is clear from the Financiera case. It is that, as noted by Lloyd L.J., the trial judge who heard all the evidence in a case is normally the one deciding on the level of damages to be paid (as a result of an undertaking as to damages) and indeed would normally be the one deciding whether pleas are relevant or not to that decision on the level of damages.

13. However, in this instance, McDonald J. (for very good reasons - since he is now an appellate judge) is not the judge deciding the current pleading issue, nor will he be the judge deciding on the assessment of damages. This means that, somewhat unusually the judge who heard and decided the case, will not be the judge, who is determining the amount of damages which should be awarded to one of the parties as a result of that party being successful in that trial. It also means that he/she will not be the judge considering the relevance of the pleas to that assessment. The fact that this Court has no knowledge of the underlying case therefore must be borne in mind when it comes to deciding that one party (the Nolans) is or is not permitted to plead an issue because it is or is not relevant. One of the longest and most complex pieces of litigation before the courts

14. In addition, it is important to remember that this was no ordinary litigation. The litigation led to an enormous number of pre-trial hearings and interlocutory orders and the trial itself lasted for nearly 2 months. Unsurprisingly, with a trial of this length, it necessitated a judgment of 317 pages to deal with the many complex factual issues in the case. Indeed, it is hard to think of many more complex cases which have been decided by the High Court in recent years.

15. This point is relevant because a judge, other than the original trial judge, is likely to be at a disadvantage when it comes to assessing damages (and so the relevance of pleas to that assessment of damages). This is because of his/her lack of knowledge of the issues (compared with the original trial judge). However, this disadvantage will be even greater when the case was as long and complex as this one was. This is because that judge has to take all the ‘circumstances’ of a complex case, with which he is not familiar, into account in assessing those damages (and so in deciding whether pleas are relevant to that assessment).

16. For all these reasons, it appears to this Court that caution needs to be taken by a judge (who was not the trial judge) in a complex case when he/she is deciding to prevent or not prevent a party from making a certain plea in connection with the assessment of damages.

17. Of course, it is also important to bear in mind that by refusing to strike out a certain plea, should this Court decide to do so, all this Court is doing is simply allowing that party to argue that point. This Court is not assessing the strength of the point being made, but simply whether that party should even be allowed make it. Dildar wants to rely on any evidence adduced at the trial to support its case

18. Before outlining the pleas which Dildar wants struck out, it is relevant to note that Dildar, in making this application, would appear to be seeking to apply a standard to the Nolans that it does not apply to itself. This is because at para. 2 of its Points of Claim it states: ‘[Dildar] reserve the right to rely on the Judgment in its entirety in support of their position that [the Nolans’] undertaking as to damages be enforced and that there be an inquiry as to damages on foot thereof. [Dildar] also reserve the right to rely upon any evidence (in written, oral or other form) adduced during the proceedings, including interlocutory applications, leading up to the Judgment – regardless of whether same is expressly referenced in these Points of Claim or not.’ (Emphasis added)

19. Although not determinative of the issues in this case (which will be considered on their merits), it is nonetheless relevant to note that if Dildar’s application were to be granted, the Nolans would be prevented from relying upon certain ‘evidence[…] adduced during the proceedings’, which Dildar expressly says it is entitled to do.

The pleas which Dildar wants struck out

20. Dildar wants this Court to strike out the following pleas: Paragraph 10: ‘Without prejudice to the foregoing the contract (the “Contract”) for the purchase of the Property dated 10 July 2013 discloses that the purchaser of the property was Clear Vision Solutions Holdings Inc. (“CVSHI”) the majority of the purchase consideration for the Property (being €2,715,300) was paid from the account of Clear Vision Solutions SA (“CVSSA”) with EFG Bank in Zurich. The beneficial interest in the Property thereupon vested in the said CVSSA CVSHI.’ Paragraph 25(d) ‘[Dildar IOM] and [Dildar Ireland] were involved, complicit in and/or were part of an arrangement/scheme (the “Scheme”) where the genesis of the Scheme was to unlawfully facilitate the Eleventh Named Defendant Paul Kenny and his brother John Kenny who were at all material times hereto heavily indebted to NAMA in clandestinely utilising pension funds and/or other funds to facilitate them to avoid/circumvent their exposures and/or liabilities to their creditors including NAMA and to indirectly invest in development land and [Dildar IOM] and/or [Dildar Ireland] are precluded from maintaining the claim for damages and the Nolans will rely on the doctrine of ex turpi causa.’ Paragraph 25(b)(8)

21. The underlined words only in this paragraph are sought to be struck out: ‘With respect to paragraph 26 of the First and Seventh Named Defendants’ Points of Claim and without prejudice to the foregoing:

[…]

b) the Report of Mr Linehan has not indicated and/or demonstrated:

[…]

(8)“the availability for finance for an unknown company with no history and owned by person with little or no experience in property development and with family members indebted to NAMA and using the funds of the said persons indebted to NAMA’ Paragraph 43

22. The italicised words only in this paragraph are sought to be struck out: ‘In the alternative and without prejudice to the entirety of the foregoing, the Plaintiffs shall allege that any alleged injury, loss, damage, inconvenience and expense etc. (if any) the subject matter of these proceedings was in fact caused by the Defendants own negligence (including the actions of the Fifth Named Defendant in unlawfully using the names and documents of the Plaintiffs in forming/establishing the First and/or Second1 Named Defendant), contributory negligence and/or failure to mitigate and/or was otherwise caused and/or arose from the actions and/or failings of the Defendants themselves, their servants and/or agents.’ This may be a typo as the second named defendant is Ciaran Desmond, who as a living individual, as distinct from company, and so could not be said to have been ‘formed/established’.

Why the parties say the pleas should/should not be struck out

23. It is proposed to consider the arguments in favour and against the striking out of all the pleas as there is considerable overlap between them.

24. The Nolans point out that it is not in dispute that Mr. Desmond’s and Mr. Millett’s wrongful actions had a part to play in the complex ownership regarding the Site. In addition, they point out that both Mr. Desmond and Mr. Millett were agents of the defendants.

25. This is clear from the Replies to the Notice for Particulars (reply 2[y] and [z]) in the application before this Court. This states that Mr. Millett/John Millett Independent Financial Advisors Limited was instructed by ‘Paul Kenny and John Kenny on behalf of the Kenny families’.

26. Similarly, reply 7(c) includes the phrase, ‘the Kenny’s appointed agents including John Millett…’.

27. In addition, at para. 13 of the Amended Defence and Counterclaim (of Dildar Ireland, Dillon Kenny, Darren Kenny and Paul Kenny) in the main proceedings, it is stated that: ‘In so far as [Ciaran Desmond] was involved in the bidding for/or purchase of the Nemo Property he was acting for and on behalf of the Kennys and their corporate entities’

28. In relation to these ‘corporate entities’, it is relevant to note that it was not disputed in the application before this Court that the name ‘Dildar’ comes from a combination of Dillon (Kenny) and Darren (Kenny) and that the reference to the Kennys’ corporate entities is a reference to Dildar IOM and to Dildar Ireland.

29. It is also important to note that Mr. Paul Kenny was a director of Dildar Ireland at the relevant time. In this regard, at para. 448 of his judgement, McDonald J. states: ‘In his answer, Mr. Millett accepted that he had discussed with Mr. Paul Kenny a strategy to describe a third party as the beneficial owner of Dildar IOM to “obscure the Kenny family involvement”’.

30. For the foregoing reasons, it seems clear that there is a significant link between Mr. Millett and the Kenny family and/or Dildar, and also between Mr. Desmond and the Kenny family and/or Dildar. The relevance of Mr Millett’s wrongful acts?

31. In relation to Mr. Millett, it is clear that Mr. Paul Kenny (who was a director of Dildar Ireland) knew that Mr. Millett was seeking to wrongfully use the Nolans’ personal information to hide the Kenny family involvement in the scheme.

32. For this reason, this Court cannot see how it could say that it is ‘clear’ that this is not relevant to an inquiry into damages due to the Kenny family’s corporate entities (Dildar). Instead, it seems to this Court that it could be relevant to consider the degree to which Dildar is implicated in the wrongful actions of Mr. Millett, when this Court is exercising its discretion as to the amount of damages due to Dildar. The relevance of Mr Desmond’s wrongful acts?

33. As regards, Mr. Desmond, he was also the agent of the Kennys and the agent of their corporate entities (Dildar). He has admitted negligence, breach of contract and breach of fiduciary duty in his involvement in some of the transactions which were at the centre of the litigation. However, Dildar claims that the pleas relating to Mr. Desmond do not have any relevance to the inquiry into damages. In this regard, Dildar relies on para. 431 of McDonald J.’s judgment, where he states: ‘But the [Nolans] are in difficulty in so far as they seek to rely on any alleged breach of fiduciary duty by Mr. Desmond. While the [Nolans] have sought to rely on his admission (through his counsel) on Day 5 of the trial, that admission is not binding in any way on the remaining defendants. Any breach by Mr Desmond would have to be proved against those defendants. Moreover, the nature of the breach admitted by Mr Desmond was never spelt out. It was merely stated that he consented to judgement in respect of negligence, breach of contract and breach of fiduciary duty in the context that he was the controller of CVSSA. Critically, no details were given as to when any such alleged breach of fiduciary duty is said to have occurred and it is not possible to infer from the terms of the admission that the breach occurred prior to 3rd September 2013.’ Dildar relies on this paragraph to claim that this should be the end of any attempted reliance by the Nolans on the wrongful acts of Mr. Desmond.

34. However, the fact that in the main action the Nolans could not rely on the wrongful acts of Mr. Desmond against the Kenny defendants, in order to establish the Nolan’s ownership claims to the Site (which was the purpose of the main action), does not mean that a judge who is exercising his/her discretion when assessing damages for Dildar is necessarily prohibited from relying on those wrongful acts. This is particularly so, as there is some evidence to support a claim that those wrongful acts were done on behalf of the Kenny family and/or its corporate entities (Dildar). For this reason, it is not ‘clear’ to this Court that this aspect of the pleas is irrelevant.

The relevance of the beneficial ownership of the Site

35. As Dildar IOM is the registered owner of the Site, and as under Irish law the register in the Land Registry is conclusive evidence of the title of the owner to the land, Dildar claims that this should be the end of the matter. Thus, it claims that there is no need to consider other issues raised in the Nolans’ pleas, such as any beneficial interests, when it comes to conducting the inquiry as to damages. This is particularly so, Dildar claims, because the Nolans’ claim of having a beneficial interest in the lands was dismissed by McDonald J. in his judgment.

36. However, it seems to this Court that it is possible that the beneficial ownership of the Site, as distinct from its legal ownership, could be relevant to that assessment of damages. This is because the Nolans dispute the damages figure of €20 million as they do not accept that Dildar IOM, a company with no history or experience in property development, would have got the size of loan it required to develop the Site. In this regard, it seems at least arguable that whether finance can be secured to develop a property depends on, amongst other things:

• how ‘clean’ the legal ownership of a property is,

• the beneficial ownership of that property (if different from the legal ownership),

• charges on that property,

• who provided the non-bank funding,

• the track record of the promoters,

• any unusual features, disputes or claims of ownership regarding the property,

• if the legal owner is a company, the legal and beneficial owners of that company etc.

37. In this regard, at para. 5(10) of Dildar IOM’s Defence in the main proceedings, it is stated: ‘By Loan Agreement executed on 17 February 2014 but effective 3 June 2013 Clear Vision Solutions Holdings Inc agreed to lend to Dildar IOM the sum of €3,300,000 in respect of monies provided for the purchase and development of the [Site] and Dildar IOM agreed to execute a charge over the [Site] to secure the repayment of the sums advanced by or on behalf of Clear Vision Solutions Holdings Inc.’

38. In light of this plea, it could be relevant to a prospective lender that that CVSHI provided 90% of the purchase monies for the Site and is apparently entitled to a charge over the Site (yet, one has not been registered). For this reason, the issues raised by the Nolans in their Points of Defence regarding the beneficial ownership of the Site could be relevant in assessing the amount of damages which Dildar IOM says it is due. This is because these issues could impact on how easy Dildar would have found it to obtain funding for the development of the Site.

39. Indeed, it seems to this Court that the fact that there is no charge on the Site today, despite the plea by Dildar IOM that CVSHI is apparently entitled to one, simply raises further questions for a prudent lender. It is not something that can simply be ignored (when considering Dildar’s entitlement to damages).

40. That is not the end of the uncertainty regarding the beneficial ownership of the Site. This is because both Mr. Darren Kenny and Mr. Dillon Kenny claimed in the main proceedings, that they own the Site individually. This is because in the Counterclaim in the main proceedings, at para. 2, they sought a declaration that the Site ‘was beneficially owned by Dildar IoM or in the alternative by [Mr Darren Kenny] and [Mr Dillon Kenny]’) This counterclaim was ultimately struck out, as the Kennys gave no evidence at the trial, and McDonald J. found it unnecessary to consider the detailed arguments made by both sides regarding the beneficial ownership of the property.

41. Further uncertainty regarding the ownership of the Site arises in the context of planning applications made regarding its development. This is because the planners were provided with false information on more than one occasion regarding who owned the Site.

42. For example, on the planning application for the Site dated 1 September 2016 it is stated that Dildar Limited is the owner of the Site, and it is not disputed that this is a reference to Dildar Ireland, rather than Dildar IOM. While Dildar claims that this is a mistake, it is a mistake which is repeated. This is because in a minute of a pre-application consultation on 25 January 2016, there is a reference by an agent of Dildar to the fact that Dildar Limited (again it was not disputed that this was a reference to Dildar Ireland) was the owner of the Site. Then more recently on 8 August, 2024, there is yet another planning application in which Dildar Limited (again, which it is not disputed is a reference to Dildar Irelan) is stated to be the owner.

43. Finally in this context, in the Replies to Particulars for the application before this Court, it is stated that the legal owner, Dildar IOM, needed to acquire easements of access, in order to be able to access the Site. It is curious to note therefore that reply 4(k) of those Replies makes clear that these easements were acquired, not by Dildar IOM, but by Dildar Ireland and reply 4(l) states that the negotiation of the acquisition of those easements was conducted with members of the Kenny family.

The beneficial ownership of the corporate owner of the Site

44. In addition, when it comes to the ownership of Dildar IOM, as distinct from ownership of the Site, this is also not without controversy. In this regard, it seems at least arguable that a prudent lender would like clarity around the beneficial ownership of the corporate entity which owns the Site.

45. However, controversy surrounds this issue because at para. 27(d) of the Amended Defence and Counterclaim (of Dildar Ireland, Dillon Kenny, Darren Kenny and Paul Kenny) in the main proceedings, it is stated that: ‘the ownership record of Dildar IOM has always reflected the beneficial ownership of that company by [Mr. Darren Kenny and Mr. Dillon Kenny].’

46. In addition, in the Counterclaim in the main proceedings, at para. 1, Mr. Darren Kenny and Mr. Dillon Kenny sought a declaration that they were ‘the beneficial owners of the entire issued share capital of [Dildar IOM]’ However, as no evidence was provided by or on behalf of Mr. Darren Kenny or Mr. Dillon Kenny in the main proceedings, this counterclaim was struck out in its entirety.

47. In contrast to the foregoing plea that the Kennys beneficially owned the Dildar IOM, at para. 8 (a) of its Replies to Particulars in the application before this Court, Dildar states that the ‘Kenny defendants lost control of their own company’ (and it was not disputed that this was a reference to Dildar IOM).

48. All of the foregoing conflicting statements regarding the beneficial ownership of the Site, and of the beneficial ownership of Dildar IOM, are matters which a prudent lender might take into account in deciding whether to provide finance to Dildar IOM to develop the Site. For this reason, it is not ‘clear’ that these issues are not relevant to the assessment of damages in this case, so as to permit the striking out of any pleas which raise these issues.

Other issues regarding the development of the Site

49. In the Replies to Particulars in this application (at para 14[e]) Dildar confirms that it had not approached any lenders in relation to the development of the Site and (at para 14[n]) that it had not prepared a business plan. This was at the time when the company, which it was intended would develop the lands (Dildar Ireland), did not have a bank account (according to the uncontroverted submissions of the Nolans).

50. The Nolans argue that these facts mean that the claims that Dildar IOM would have obtained funding to develop the Site, but for the injunction (and so has lost approximately €20 million in profit) requires careful scrutiny, which they say they are seeking to do by their pleas, which Dildar seeks to strike out.

51. In light of the foregoing matters, it is now proposed to consider each of the pleas which are at issue.

Paragraph 10

52. This plea deals with the beneficial ownership of the Site and/or the beneficial ownership of the corporate owner of the Site. When one considers the conflicting claims that surround the ownership of the Site and of the corporate owner of the Site and the other reasons set out above, it seems to this Court that it cannot say that it is ‘clear’ that the pleading in para. 10 is irrelevant and that it should be struck out.

Paragraph 25(d)

53. This plea alleges that Dildar was involved in unlawful acts with Mr. Paul Kenny (and Mr. John Kenny) as part of the transaction involving the Site and that any damages should reflect this fact. In this regard, reference has been made to the wrongful actions of Mr. Millett and the wrongful actions of Mr. Desmond. Since Mr. Millett and Mr. Desmond were agents of the Kenny family and/or Dildar, it seems to this Court that it cannot say that it is ‘clear’ that this pleading regarding the illegality of those actions and their impact upon an assessment of damages is irrelevant and that it should be struck out. This is because, as is clear from Laffoy J.’s judgment in Caldwell, the judge dealing with this inquiry into damages has to exercise his/her discretion regarding the amount of damages, in this case, to be awarded to a participant in the scheme. It must be the case that if there was some illegality involved in the scheme (by the party seeking damages, or by his/her agent), then this is a matter that is relevant to the exercise of that discretion. Accordingly, this plea will not be struck out. Paragraph 25(b)(8)

54. This plea states that the expert report (on behalf of Dildar) does not demonstrate that Dildar IOM would have got the funding in light of the involvement of the Kennys who were indebted to NAMA.

55. In light of the unusual and conflicting facts surrounding (i) the beneficial ownership of the Site (ii) the beneficial ownership of the corporate entity holding title, (iii) the conflicting planning applications and (iv) the claims of ownership made by the Kenny family, this Court cannot say that it is ‘clear’ that this pleading, regarding whether Dildar IOM would have got funding in the context of the financial track record of the Kenny family with NAMA, is irrelevant. In particular, this Court cannot say that it is irrelevant for a lender to consider the financial repayment record of a prospective borrower (with NAMA or indeed any other financial institution) as a factor in deciding whether it will give funding. Since the Nolans are disputing that Dildar would have got the full funding for the development, these issues could be relevant. Accordingly, this plea will not be struck out.

Paragraph 43

56. Dildar does not object to the Nolans’ claim that the loss being claimed by Dildar was subject to contributory negligence on its part or on the part of its agents. However, it does object to the actions of its agent, Mr. Millett, being included, in order to establish such contributory negligence. They do so on the basis that this issue, regarding Mr. Millett’s unlawful use of the Nolans’ personal data, is res judicita i.e. it has been dealt with by McDonald J. Therefore, Dildar says that it is not open to be dealt with by the judge dealing with the assessment of damages. On this basis, they say the italicised words in this plea should be struck out.

57. It is true that McDonald J. dealt with Mr. Millett’s use of the Nolans’ personal information, in the sense that he found that it was unlawful and he awarded damages against Mr. Millett in favour of the Nolans. However, the judge doing the inquiry as to damages will not be revisiting the finding of McDonald J. or indeed the amount of damages that he awarded for the unauthorised disclosure of the Nolans’ personal data (he awarded €500 to each of the plaintiffs in this regard).

58. Instead, that judge will be dealing with a separate issue, namely the possible effect, on the assessment of damages payable to Dildar, of McDonald J.’s finding regarding Mr. Millett, bearing in mind that Mr. Millet was acting as agent for the Kenny family and/or Dildar. This issue has not been addressed by McDonald J. and so its consideration by a trial judge in the future is not caught by the principle of res judicata. To put it another way, just because a finding was made by a judge in a previous case does not mean that finding is not relevant in a later case, and in this instance relevant to an assessment of damages in favour of a party who is alleged to have been the principal and/or the beneficiary of the wrongful actions of an agent.

59. A separate point was also made by Dildar, namely that the Nolans ran an illegality argument unsuccessfully in the High Court (in their unsuccessful claim that they were the beneficial owners of the Site) and so they should not be allowed to make an illegality argument again. However, the same argument is not being re-run. This is because their argument at the trial was that they should be declared the beneficial owners of the Site due, in part, to the alleged illegality of the actions of the defendants. This was unsuccessful. At the inquiry as to damages, the Nolans’ argument appears to be that the amount of damages payable to Dildar should be reduced to reflect the alleged illegality of the actions of Dildar’s alleged agent (Mr. Millett), in light of, amongst other things, the finding of McDonald J. that this agent of the Kenny family and/or Dildar was guilty of wrongdoing.

60. Accordingly, this plea should not be struck out.

CONCLUSION

61. In this Court’s view, for the reasons set out above, it is not clear that any of the disputed pleas are irrelevant or otherwise not permitted, and so this Court refuses to strike them out.

62. This case will be provisionally put in for mention at 10.45 a.m. a week from its delivery, to deal with any final orders and costs. However, in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly important in light of the clear implication from Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broadbrush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.