Discovery refused where plaintiffs' challenge to leaver notices relies solely on invalidity of board decisions.

THE HIGH COURT

COMMERCIAL

[2026] IEHC 83

[Record No. HP2025.3003

COM 2025.0046]

BETWEEN

MAURICE NELIGAN, MANUELA NELIGAN

AND

MERLIN ONE INVESTMENTS LIMITED

PLAINTIFFS

AND

INFRARED INFRASTRUCTURE VI EUROPE LIMITED

AND

JOLT ENERGY HOLDINGS LIMITED

RESPONDENTS

JUDGMENT of Mr Justice Mark Sanfey delivered on the 13th day of February 2026.

Introduction.

1. This judgment relates to an application for discovery by the plaintiff by notice of motion issued on 29 October 1995 seeking three disputed categories of discovery, categories 7, 8 and 10 of those which were originally sought.

2. There was no material dispute between the parties as to the relevant legal principles, which both sides accept are well settled.

Background:

3. These proceedings concern the affairs of the second defendant (‘Jolt Holdings’ or ‘the company’) and the group of companies of which it is parent (‘the Jolt Group’).

4. The first plaintiff was, until his purported removal on 14 November 2024, CEO of the Jolt Group, and was managing director and an employee of an indirect subsidiary of Jolt Holdings GmbH (‘Jolt Germany’). Jolt Germany was a direct subsidiary of Jolt Energy Ltd (‘Jolt Energy’) and formerly was a direct subsidiary of Jolt Holdings.

5. The relationship between the shareholders of the company is governed by a Subscription and Shareholders’ Agreement (‘SSA’). The plaintiffs and the first defendant are shareholders in Jolt Holdings and are parties to the SSA. The first defendant is a significant investor in the company and has enhanced governance rights pursuant to the SSA and the constitution of Jolt Holdings and is entitled inter alia to appoint two investor directors under clause 5.2.1 of the SSA.

6. In November 2024, those investor directors were a Mr Abuin and a Mr Stubican. The ‘manager directors’ pursuant to the SSA and the constitution were a Mr Winter and the first plaintiff.

7. On 8 November 2024 a board meeting of the directors of Jolt Holdings was called for 14 November 2024. On 11 November 2024, Mr Abuin sent an email which purported to add a further item to the agenda of the board meeting concerning “composition of subsidiary boards, delegation of authorities and management of subsidiaries”.

8. Subsequently, the first plaintiff was requested to meet with Mr Abuin, Mr Stubican and a Mr Bora Heperler at a hotel on 13 November 2024. He alleges that Mr Stubican indicated to him that he was summarily and immediately removed from his position as CEO and that he should not return to the company’s office. The first plaintiff alleges that his access to company and group IT services was stopped so that he did not have access to email, calendar, Teams meetings, SharePoint and One Drive in addition to all other company and/or group systems.

9. The first plaintiff alleges that he contacted other members of the management team during the course of the afternoon of 13 November and was advised that Mr Abuin and Mr Stubican had told various members of the management team that the first plaintiff had been dismissed on the previous day.

10. The board meeting proceeded on 14 November 2024. The first plaintiff alleges that he was precluded from attending the meeting; this is disputed by the defendants, who contend that there was no impediment to the first plaintiff attending the meeting. On the evening of 14 November 2024, the first plaintiff received at his home a package of legal documents. These documents are set out in para. 37 of the statement of claim, and are central to the present application. They comprise a written resolution of Jolt Holdings, and other documentation relating to the severance of relations between Jolt Germany, the group companies and the First Plaintiff, and a document purporting to record that the First Plaintiff had become a “Leaver” as defined by the SSA.

11. Following the purported dismissal of the first plaintiff as an employee of Jolt Germany, the defendants have sought to characterise him as a “Leaving Employee” and hence a “Leaver” pursuant to the SSA, and this led to the invocation by the defendants in March 2025 of section 18 of the SSA to effect a compulsory transfer of shares beneficially owned by the first and second plaintiffs by service of “Leaver Notices” for the purchase or redemption of “Leaver” shares at a “Leaver Fair Market Value”.

12. In these Leaver Notices, the company sought to contend that the leaver fair market value was nil, based on the most recent InfraRed valuation prior to the contended Leaver date of 14 November 2024, which was a valuation of 30 June 2024 which valued the group at €41.1 million.

Categories of discovery sought

13. By letter of 22nd September 2025, the plaintiffs sought eleven categories of documentation from the defendants by way of discovery.

14. After extensive negotiation between the parties, they had – to their credit – agreed formulations of all categories save for categories, 7, 8 and 10. The court was informed at the commencement of the present application that category 8, had subsequently been agreed and did not require to be addressed in the course of the application. However, the defendants argue that any documents which could be of assistance to the plaintiffs’ case are already covered by the agreed categories, and in particular the agreed category 8 documents, such that discovery of categories 7 and 10 is no longer necessary.

15. I will deal with each of the two categories in turn.

Category 7

16. Category 7 is as follows: "All documents which evidence or record the giving of instructions in relation to, and the drafting of, the documents which are identified at para.37 of the Statement of Claim and the other documents in that numbered sequence”

17. The defendants, without conceding their assertion that no documents should be discovered in this category, have offered the following formulation: "All documents created between 1 January 2024 and 14 November 2024 which evidence or record the drafting of the documents which are identified at para. 37 of the Statement of Claim ".

18. The timeline that occurred in and around the dismissal of the first plaintiff as CEO and the Board meeting of 14 November 2024 is not in dispute, nor are the documents centrally at the heart of the issues between the parties:

• the email of 11 November 2024;

• the package of documents received by the first plaintiff at his home on the evening of 14 November 2024; and

• the “Leaver Notices” served on 25 March 2025.

19. The statement of claim seeks a range of declaratory and injunctive reliefs in relation to what the first plaintiff contends was the purported and unlawful removal of him as director of Jolt Holdings and Jolt Energy, and as CEO of the Jolt Group. The statement of claim also seeks a declaration that he is not a “Leaver” within the meaning of the constitution of the company and/or pursuant to the SSA.

20. The defence presents a complete denial of liability. It characterises the statement of claim as comprising “technical complaints regarding an alleged failure to give [the plaintiffs] sufficient notice that [the first plaintiff’s] removal would be considered at a board meeting of the Jolt group’s Irish parent company…” [para. 1.1 of defence]. Detailed denials that the decisions taken at the board meeting on 14 November 2024 were “invalidated by any non-compliance with notification requirements” are pleaded [para 1.2 of defence].

21. Paragraph 38 of the statement of claim sets out detailed “Particulars of breach of Constitution and the SSA”. In their submissions in respect of the current application, particular reliance was placed by the plaintiffs on paras. 38 (4) and (5) of the statement of claim, which are as follows: “(4) The email of 11 November, by which Mr Abuin sought to add business to the Agenda of the November Board meeting was manifestly and deliberately deficient, and not in compliance with clause 7.13 of the Constitution and/or clause 5.19 of the SSA in the following respects:

(a) The short description of the business proposed to be added to the agenda of the November Board Meeting, was insufficient to alert any addressee, including the First Plaintiff, of the true and exact nature of what is intended to be proposed and done at the November Board Meeting.

(b) the deficiency of the Agenda Addition is made clear by the fact that the First Defendant (and its nominee director and agent Mr Abuin) had on 11 November 2024 arrived at a decision to procure the removal of the First Plaintiff but determined deliberately to conceal this intervention from the First Plaintiff. The clarity of the First Defendant's intention is evident, inter alia, from the Investor Consent.

(5) In the premises, it was a clear and deliberate decision on the part of Mr Abuin (the First Defendant's nominee and/or agent), and/or the First Defendant, to ensure that the First Plaintiff would not have an opportunity to understand what was proposed and to react in a careful and reflected manner. This was a deliberate strategy to deprive the First Plaintiff of any adequate notice with a view to surprising him in relation to the actions contemplated at the said meeting.”

22. The defendants make the point that category 7 as originally sought was based on paras. 37 and 38(1) of the statement of claim only. Paragraph 37 sets out the documents received by the first named plaintiff on the evening of 14 November 2024. Para. 38 (1) is as follows: “It is clear from the Investor Consent (and it was well known to Mr Abuin in circulating his Agenda Addition on 11 November 2024, being 3 days before the November board meeting) and (to the extent the Minute accurately records what occurred at the November Board Meeting) it is clear from the Minute that a very specific cascade of resolutions and corporate action would be proposed, resolved, executed, authorised and/or directed at and following the November Board Meeting. In that regard, it is clear that the documents which were received by the First Plaintiff on the evening of 14 November 2024 had been drafted in advance in final form and would await execution at and following the November Board Meeting.”

23. Paragraph 38(2) of the statement of claim argues accordingly that, arising from these matters, the first plaintiff ought to have been provided with copies of the documents which were “proposed to be considered, resolved, executed, authorised and/or directed at the November Board Meeting 5 clear Business Days in advance”.

24. The defendants however point out that, in correspondence relating to discovery, their solicitors, in a letter of 6 October 2025, readily admitted that the documents received by the first plaintiff on 14 November 2024 were drafted in advance of the 14 November board meeting. They argue that the documents speak for themselves, and that their legal effect is a matter for legal argument. They do not accept that the timing of when the resolutions were drafted has any relevance to the legal effect of the documents.

25. The defendants say that there is “no real connection between the allegations at paras. 38(4) and (5) of the Statement of Claim (i.e. that the defendants sought to deprive the First named Plaintiff of adequate notice) and the documents sought at category 7 (i.e. documents evidencing instructions relating to the drafting of corporate documents)” [para. 33 defendant’s written submissions].

26. The plaintiffs contend that the first plaintiff was required to be given reasonable notice of the matters and documentation to be considered at the board meeting. It is submitted that the allegation at para. 38(4)(b) of the statement of claim that the first defendant had on 11 November 2024 “arrived at a decision to procure the removal of the First Plaintiff but determined deliberately to conceal this intention from the First Plaintiff” - which is denied at para. 29 of the defence - if substantiated at trial, would be relevant to the issue of whether or not the notice given to the first named plaintiff was reasonable, or whether it was “manifestly and deliberately deficient”, as alleged at para. 38(4).

27. The plaintiff accordingly argues that documents which “evidence or record the giving of instructions” in relation to the documents are relevant to a contested issue in the pleadings, and that, given that all the documents served on the first plaintiff appear to be part of a numbered sequence in the top left-hand corner of each document, all documents in that numbered sequence may be relevant and should be discovered.

28. The plaintiffs rely, as regards the relevant documents, on the classic statement by Brett LJ in Compagnie Financiere du Pacifique v Peruvian Guano & Company [1882] 11 QBD 55 (‘Peruvian Guano’) in which he held that discovery is required if any document: “… relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary” [at p.63 - emphasis in original].

29. Counsel for the plaintiffs stresses that it is not necessary to establish with certainty that documents fall within this formulation; it is necessary only to establish that it is “reasonable to suppose" that the documents contain information which may enable a party to advance its own case or damage that of his adversary.

30. However, it is important to note that the documents sought by the plaintiffs in this category do not relate to the issue of notice canvassed at paras. 38(4) and (5) of the statement of claim. What is sought are documents concerning the giving of instructions in relation to the documents set out at para. 37 of the statement of claim. There is no controversy between the parties as to the delivery of those documents, or as to their purported effect or import. The allegation at para. 38.1 - on which the request for documents in this category was originally based - that the documents had been drafted in advance of the board meeting is accepted by the defendants.

31. The documents sought in this category must be relevant to an issue in the pleadings. In my view, this relevance has not been established by the plaintiffs. The documents speak for themselves, and the issue as to whether or not they have legal effect does not appear to me to require discovery of documents evidencing or recording the giving of instructions in relation to their drafting.

32. It should also be said that the plaintiffs have the benefit of agreed categories 1 and 8. Category 1 relates to all documents created between 1 January 2024 and 13 December 2024 evidencing or recording any communication “between and amongst persons representing the First Named Defendant and its affiliates, (including without limitation [a number of named parties] and/or Carlos Abuin and/or Sven Stubican relating to

(a) whether or not the First Named Plaintiff should be removed from his position as managing director of Jolt Energy GmbH (‘Jolt Germany’); and/or CEO of the Jolt Group; and/or other directorships within the Jolt Group; and/or as a member (through Merlin One) of Jolt Energy Holdings Ltd); or

(b) any decision arrived at that the First Named Plaintiff should be so removed;

(c) the meeting of the board of directors of the Second Named Defendant of 14 November 2024 (the “November board meeting”); or

(d) any decisions or resolutions to be considered or made or passed at the November Board Meeting.”

33. Category 8, as agreed between the parties, relates to

“All documents evidencing or recording any communication involving any member of the Board of Directors of Jolt Energy Holdings Ltd, including those involving any representatives of the First Defendant, created between 1 January 2024 and 14 November, 2024 in relation to (a) whether or not the First Named Plaintiff should be removed from his position as managing director of Jolt Germany; or (b) any decision arrived at that the First Named Plaintiff should be so removed; or (c) the November board meeting; or (d) any decisions or resolutions to be considered or made or passed at the November Board Meeting.”

34. Category 8 as agreed by the parties corresponds to the version originally sought by the plaintiffs in their solicitor’s letter of 22 September 2024, save for the addition of the temporal restriction in the agreed version. In that letter, the plaintiffs had sought the category on the basis that “… the circumstances which preceded the meeting of the Board of Directors of 14 November, 2024 and the communications involving members of the Board, including those involving any representatives of the First Defendant, in advance of that meeting are clearly at issue. The documents set out above relate to those matters at issue in that they will identify what was said to and between the directors and between them and representatives of the First Defendant in advance of the meeting and whether there was, as the Defendant says there was not, a strategy in place to surprise the First Named Plaintiff”.

35. The documentation in the agreed categories 1 and 8 should give the plaintiffs an understanding of the context in which the directors’ meeting of 14 November 2024 took place. Whether such documentation will assist or damage either party's case remains to be seen. However, the documents sought in category 7 do not relate to any pleaded issue. The plaintiffs are not entitled to seek documentation which may give rise to a cause of action not yet pleaded: as McKechnie J said in Keating v RTE [2013] IESC 22, “… discovery is an aid to further a viable action or defence, or an issue in either, but not a means to establish one”. [at paragraph 62].

36. As I am of the view that documents sought at category 7 are not relevant to any pleaded issue, I must refuse discovery of that category.

Category 10

37. The documents sought in category 10 are as follows: "All documents evidencing or recording all actions taken and communications between any representative of the First Defendant (including those listed in respect of Category 1) in relation to the decision to serve, the preparation of, and calculation of value for, the Leaver Notices sent to the Plaintiffs.”

38. The defendants have offered the following documents in response to the plaintiff’s request: “All documents created on or between 14 November 2024 and 25 March 2024 [sic] evidencing or recording the calculation of value for the Leaver Notices sent to the Plaintiffs".

39. The plaintiffs plead at para. 44 of the statement of claim that the Leaver Notices are “unjustified, unlawful and in breach of the constitution and/or the SSA”. At para.10 of the “reliefs” section of the statement of claim, the declaration is sought that the Leaver Notices “are void and of no effect”. The defendants sought particulars of the basis upon which the plaintiffs were challenging the Leaver Notices. The plaintiffs responded at para. 26 of the replies to particulars as follows: “This is quite clearly and fully pleaded. By reason of the matters pleaded in the Statement of Claim (and the invalidity or ineffectiveness of the steps purportedly taken at and following the Board meeting of 14 November 2024) Mr Neligan was not and is not a “Leaver” as that term is used in each of the Constitution and the SSA. It necessarily follows that the purported Leaver Notices referred to are unjustified, unlawful and in breach of each of the Constitution and SSA”.

40. The defendants argue acccordingly that the plaintiffs’ challenge to the Leaver Notices rests entirely on the argument that the plaintiffs were not “leavers” because the decisions taken at the board meeting on 14 November 2024 were invalid. They point out that there is no pleading relating to the “decision to serve, the preparation of, and calculation of the value for” the Leaver Notices. There is no allegation that the Leaver Notices were invalid because the Board was not acting in good faith.

41. In their written submissions, the plaintiffs suggest that the invocation by the defendants of section 18 of the SSA to effect a transfer of shares owned by the first and second named plaintiffs by the service of the Leaver Notices is subject to the requirements of schedule 11 of the SSA which requires the calculation of the relevant fair market value of the shares to be determined by the Board “acting in good faith”. At para. 55 of their written submissions, the plaintiffs state that: - “It is clear that the question of compliance with Clause 18 and Schedule 11 (the latter having express good faith obligations) necessarily brings into focus the circumstances in which it was decided to serve the Leaver Notices and the manner of their preparation, as well as the manner in which the various questions of value or potential value were discussed.”

42. However, while the plaintiffs plead at para. 32.4 of the Reply to defence that “it is denied that the purported leaver notices identified the correct leaver price and/or the leaver fair market value”, it is not pleaded that the calculation by the defendants of the “leaver fair market value” of nil was not proffered in good faith. No factual basis is put forward which would suggest that the calculation itself was in some way inaccurate or misguided.

43. As the only basis pleaded for alleging that the leaver notices were invalid appears to be that the first and second named plaintiffs were not “Leavers”, documents evidencing or recording actions and communications “in relation to the

decision to serve, the preparation of, and the calculation of value for, the leaver notices” do not appear to satisfy the test of relevance. It is not open to the plaintiffs to seek documents which may indicate a possible cause of action.

44. For these reasons, I refuse discovery of category 10 as requested by the plaintiffs.

Conclusion

45. As I have indicated, I do not propose to order discovery in either category 7 or

10 in the terms sought by the plaintiffs, and the plaintiffs’ application in that regard will be dismissed. The defendants offered reformulated categories of categories 7 and 10; I am inclined to order the defendants to make discovery of categories in those terms, but I will not impose this obligation on the defendants without being addressed as to whether I should do so.

46. I will list the matter on 18 February 2026 at 10.30am for submissions as to any ancillary orders, including the issue of costs.