Lobov v McGregor (Approved) [2025] IEHC 398 (11 July 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lobov v McGregor (Approved) [2025] IEHC 398 (11 July 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC398.html Cite as: [2025] IEHC 398 [ New search ] [ Printable PDF version ] [ Help ] harp graphic. THE HIGH COURT [2025] IEHC 398 Record Number 2022 5882 P ARTEM LOBOV Plaintiff -and- CONOR MCGREGOR Defendant JUDGMENT of Ms Justice Nessa Cahill delivered electronically on 11 July 2025 Introduction 1. The Plaintiff's claim in these Proceedings is that he entered into an oral agreement with the Defendant pursuant to which the Defendant agreed to pay him 5% of the proceeds of the sale of a whiskey bearing the Defendant's name and brand, which was ultimately marketed and sold as " Proper No. 12 ". 2. This judgment concerns the Plaintiff's motion seeking leave to amend his pleadings to change the month in which that agreement is alleged to have been formed. The motion is governed by Order 28, Rule 1 of the Rules of the Superior Courts: " The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties ." 3. There is relatively limited controversy over the application to amend itself (given the liberal rules that govern amendments of pleadings) and there may have been no dispute on the application at all, were it not for the fact that the Defendant was not notified of the intended amendments until a matter of days before the trial of the action was due to commence (and after the case had been called on for hearing). 4. The result was that the trial date was vacated with just days to go and the parties are now facing the exchange of amended pleadings and potentially further pre-trial steps before the case will be ready for hearing again. 5. The focus of this judgment is on these facts and their costs implications. Background 6. The plenary summons dated 22 November 2022 and the statement of claim dated 22 December 2022 both refer to an agreement alleged to have been made by the Plaintiff and Defendant " in or around September 2017 ". The statement of claim elaborates that " in September 2017 at the SBG gym the Defendant offered, and the Plaintiff accepted an agreement in relation to the Plaintiff's proposed share of the proceeds of the deal ". It is pleaded that the Defendant made a specific offer to the Plaintiff of five per cent of the proceeds of the whiskey deal at that time; that it was confirmed by a handshake and that this was witnessed by three named individuals, Lee Dunphy, Derek Dunphy and Keith Joyce, among others. 7. Following the delivery of the statement claim, further particulars of the pleadings concerning the alleged oral agreement were sought, including the " exact date " of the alleged agreement. The Plaintiff replied that it was " in or about September 2017 ". 8. By the defence delivered on 9 June 2023, the pleadings just referred to were denied in their entirety and it is pleaded that there was no agreement between the Plaintiff and the Defendant that the Plaintiff would receive monies in respect of the Defendant's whiskey product. Particulars of the defence were sought and these were furnished on 5 December 2023. A reply to the defence was delivered on 17 October 2024. 9. In the meantime, discovery was sought by the Plaintiff by letter dated 25 July 2023 and a request for discovery was issued by the Defendant by letter dated 4 December 2023. Both discovery requests were ultimately resolved (including by an order of the Master of the High Court on the Plaintiff's discovery request). Discovery was made by the Plaintiff on 26 April 2024 and by the Defendant on 15 May 2024. 10. A notice of trial was served on 19 September 2024; a certificate of readiness issued on 21 October 2024; and the matter was set down for trial on 5 December 2024 and assigned a hearing date of 20 May 2025, with the trial scheduled to last for eight days. 11. On 15 May 2025, there was a call-over in the High Court at which it was confirmed that the case was proceeding. Shortly afterwards, a letter was sent by the Plaintiff's solicitor to the Defendant's solicitor indicating that the Plaintiff was changing his position in relation to the month in which the alleged agreement was formed and that an application would be made at the commencement of the hearing to amend the pleadings 12. What was said in the letter of 15 May 2025 was that " on reviewing the documentation and preparing for hearing, the Plaintiff's evidence now shall be that the agreement the subject matter of these proceedings was concluded in October 2017 in SBG Gym ". 13. Following receipt of this letter, the matter was listed in the High Court again on 16 May 2025 and the trial date was vacated. The Plaintiff then issued a motion on 19 May 2025 seeking leave to amend his plenary summons and statement of claim. This motion was heard by me on 21 May 2025. 14. While some opposition to the amendment was articulated on behalf of the Defendant at the hearing of the motion, the Defendant's main focus was on the costs' consequences of the motion. In particular, the Defendant points to the costs wasted owing to the Plaintiff's failure to disclose the proposal to amend the pleadings until days before the hearing was to commence. 15. Given the liberal rules that govern the amendment of pleadings; the fact that the trial dates had already been vacated; and no authority was cited in which leave to amend was refused based on the explanation given for the delayed application to amend, I indicated, following the hearing of the Motion, that I would grant leave to the Plaintiff to amend the pleadings pursuant to Order 28, Rule 1 of the Rules of the Superior Courts. I address the reasons for this decision briefly below. The Motion 16. The motion seeking leave to amend the pleadings was issued on 19 May 2025 and is grounded on the affidavit of the Plaintiff. In his affidavit, the Plaintiff states that he had previously sworn that he discussed this matter in or around September 2017 at SBG gym on the Naas Road and that it was at all times his case and his evidence that the Defendant made a specific offer to the Plaintiff of 5% of the proceeds of whiskey deal on that occasion. 17. He then states that he had been in error with regard to the date of that meeting and that he now believes the agreement occurred during the week of 9 October 2017. He explains on affidavit that, in preparing for the trial which was listed to commence on 20 May 2025, he recalled that he was in fact in Iceland for 10 days after the Defendant's fight against Floyd Mayweather which occurred on 26 August 2017. He said he was in Iceland from the 5 to 15 September 2017. The Plaintiff further states that in preparing for the trial, he was going through belongings and came across an old phone which was damaged and on which he managed to access information including texts which he said showed that the approximate date upon which he thought the handshake with the Defendant had occurred was incorrect. 18. He states that he managed to access the information on the phone on 26 February 2025 and that the messages he accessed confirmed to him that the meeting with the defendant occurred during the week beginning 9 October 2017 and not in September 2017. He also refers to certain WhatsApp messages that followed the meeting in question and which he believes will need to be formally discovered by him. 19. The Plaintiff states that he brought this error to the attention of his solicitor on 18 March 2025 and that his solicitor told him to doublecheck the information to confirm it. He then says that the question of the amendment of the date of the oral agreement was first discussed with this full legal team on 13 May 2025. The plaintiff apologises for his error in this matter and for causing confusion and delay in relation to the amendment of the proceedings. 20. The motion is also supported by the affidavit of Dermot McNamara, the Plaintiff's solicitor, who confirms that he was instructed by the Plaintiff on 18 March 2025 that he suspected the date of the oral agreement was October 2017 and not September 2017 as pleaded. Mr McNamara states that he informed the Plaintiff that this information must be double-checked to be " absolutely certain ". He confirms that the matter was discussed at a meeting with junior counsel on 8 May 2025 and then at a meeting of the " legal team " on 13 May 2025. He states that matters of a " solicitor-client nature " then arose and that he was awaiting confirmation of instructions in relation to " certain matters " when the matter was called on for hearing on 15 May 2025. Mr McNamara apologises for the failure to inform the Court of this issue and acknowledges that the trial was adjourned as a consequence of the delay in notifying the Defendant of the proposed amendments. 21. The replying affidavit of Ms Ciara Hallinan, a solicitor acting for the Defendant, focuses on the timing of the application to amend and the fact that no steps appear to have been taken between 18 March 2025 and 8 May 2025. Ms Hallinan refers to the ongoing pre-trial correspondence between the parties and the circumstances of the call-over on 15 May 2025 and makes the inference that a decision was taken to withhold disclosing the intention to amend the pleadings. The affidavit of Ms Hallinan acknowledges that " an amendment of the sort sought will normally be granted by a Court ", but that this assumes " a full and frank explanation " of the circumstances. 22. Ms Hallinan describes in her affidavit the importance of the date of the alleged agreement and the pre-trial work and preparation that was done on behalf of the Defendant based on the date (and alleged witnesses) as pleaded, including interviews with witnesses and verification of locations, travel details and timelines. She states that " considerable efforts and expense " were expended in seeking to make the specific case that the meeting could not have taken place in September 2017. She outlines that discovery will need to re-done and the discovery furnished to date will need to be re-reviewed, if the proceedings are amended. 23. It is Ms Hallinan's position that the date of the alleged agreement is vital to the defence of the Proceedings and that " a great deal of wholly unnecessary expense has been incurred ". She states that " an appropriate order as to costs " should be made to reflect this. The Amendment Position of the Parties 24. As already indicated, the Plaintiff's position is that new information was discovered which necessitated the amendment of the pleadings. Counsel for the Plaintiff relied on the judgment of Clarke J. in Porterridge Trading Limited v. First Active plc [2007] IEHC 313 (" Porterridge "). In that case, the amendment proposed was a substantive alteration to the cause of action and would, the Court found, " radically alter the nature of the proceedings " (para. 2.5). One of the observations of Clarke J in that case is quite apposite here: " Subject only, therefore, to prejudice, it is difficult to see why a party who could have pleaded the case in the manner now sought to be achieved by amendment, should not be entitled to bring about such a situation by virtue of an amendment without the court engaging in significant scrutiny as to the merits of the case which, if the amendment be allowed, would now require to be litigated ." (para. 3.1). 25. Here, there can be no doubt that it was entirely open to the Plaintiff to plead the case that is now proposed to be pleaded. There is no basis or need for the Court to assess the merits of the claim or the proposed amendments. 26. One passage of Porterridge that was emphasised by counsel for the Defendant in the context of this motion was a passage which referenced the need to weigh in the balance " the extent to which there is any reasonable basis for the failure to plead the case properly in the first place ." (para. 3.4) In making that observation, Clarke J. noted that it was " not to suggest that it is an issue upon which any great weight ought to be placed, save where there is a fine balance involved in assessing the competing interests of justice arising ." (para. 3.4). He underlined that the general rule is that, if the amendment is necessary for the fair determination of the issues, and any prejudice can be substantially met by appropriate orders such as to costs, " then the amendment should ordinarily be allowed ". (para. 3.4) 27. That approach was applied in Porterridge , leading to the conclusion that there was no relevant prejudice, despite the failure to provide a good explanation for the non-inclusion of one set of proposed amendments in the original pleadings. This illustrates the default position which is that amendments necessary to allow the fair determination of all issues must be allowed " on such terms as may be just " unless there is a particular irremediable prejudice caused (Order 28, Rule 1). 28. In this case, the Plaintiff accepts that it is unsatisfactory that these amendments were proposed so late in the day and further accepts that certain costs' consequences may flow from the amendments, such as costs of delivering amending pleadings and dealing with further discovery. The Plaintiff's position is that any prejudice can be remedied by such a costs order and that the amendments should be allowed on that basis. 29. The opposition to the amendment on the Defendant's side hinged on criticisms of the Plaintiff's delay in relation to the proposed amendments. It was fairly accepted that there was no irremediable prejudice, but it was suggested that the amendments should be refused owing to the want of an explanation as to how the information that was available to the Defendant's solicitor since 18 March 2025 was not disclosed until after the case had been called on for hearing. It was suggested that there was a deliberate decision not to disclose the intention to amend the pleadings sooner and that this should weigh against the grant of the relief sought. Assessment 30. Order 28, Rule 1 clearly states that amendments may be allowed on such terms " as may be just ... for the purpose of determining the real questions in controversy between the parties" . It is a broad discretion, the parameters of which are usefully summarised by the Court of Appeal in Stafford v. Rice [2022] IECA 47 . 31. The primary question is whether, and to what extent, there is prejudice which justifies a refusal of the amendments for which leave is sought. In this respect, it is necessary to weigh whether any prejudice could be mitigated or minimised " in a manner which was just to all parties ", such as by the making of appropriate costs orders. If that is possible, the prejudice is not sufficient to prevent the proposed amendments ( Porterridge at para. 3.1). In this motion, the Defendant accepts that no irremediable prejudice was caused by the amendments. Instead, the Defendant's opposition to the amendments centred on the question of when a court can refuse to allow an amendment because of the inadequacy of the explanation for the need to make that amendment. 32. It is important to repeat the caution of Clarke J. that the want of an explanation is not a matter on which, typically, " any great weight ought to be placed". I consider his judgment in Porterridge to evidence the position that the adequacy or otherwise of an explanation can be weighed as part of the assessment of the overall prejudice to the parties and only if the justice of the case so requires. 33. In this motion, on the basis of the evidence relied upon, I cannot conclude there is no reasonable explanation as to why the amendment is required or why the pleading did not originally refer to the meeting having occurred in October 2017. There is an explanation on affidavit and there was no cross-examination on these averments. I also cannot conclude that the delay was deliberate or tactical on the basis of the affidavits before me. These are all matters that can be tested in cross-examination at the trial of the action but are not good grounds to refuse to allow the amendment at this stage. A similar point was made by Clarke J. in Porterridge (para. 4.8). This is not to excuse the delay that occurred: the point instead is that it is not a reason to refuse the amendments. 34. Having considered the submissions of the parties and the judgment of Clarke J. in Porterridge, I consider that the amendments proposed by the Plaintiff are necessary to ensure the " real issues in controversy " are determined; that the need to make the amendments has been explained sufficiently for the purpose of this motion (without assessing the merits of any points or claims made); and that there is no prejudice to the Defendant which cannot be remedied by appropriate orders as to costs and onward case management of this case. Appropriate Costs Order 35. The question which then arises is how the undoubted prejudice that has been caused to the Defendant by the eleventh-hour application to amend the pleadings in this case should justly be mitigated. Parties' Positions 36. The position of the Defendant is that, as soon as this important new information came to light, it should have been raised and disclosed to the Plaintiff's legal team directly. It is said that the Defendant's legal team has prepared the case premised heavily on the date of the alleged meeting being in September 2017, including interviewing witnesses, gathering information and evidence and effectively preparing to run a case that challenged and undermined the proposition that the Defendant was at the location alleged by the Plaintiff in September 2017. It was contended that the case being advanced may need to be substantially revised in light of the proposed amendments. 37. For these reasons, it was contended that the appropriate costs order is an order for the recovery of all costs incurred since 18 March 2025 in the preparation of the case for trial, including counsel fees for the preparation of the case for trial since that date, solicitors' fees, witness and other expenses incurred. It is said that all work done since 18 March 2025 will need to be re-done. These costs are sought by the Defendant on a " party and party " basis, rather than on the more extensive " solicitor and own client " basis. This is said to mirror the costs order in Wolfe v. Wolfe [2001] 1 IR 313. 38. The Plaintiff's position, by contrast, is that the Defendant should properly be entitled to all costs which will now be incurred as a direct result of the amendment, such as amendment of pleadings, further discovery, meetings and preparation of witnesses that may need to be re-done. There is opposition to any award of costs for other items, such as brief fees and instruction fees previously incurred. The Plaintiff's counsel asserts that there is a prospect of double-recovery if the Defendant now recovers the costs of pre-trial preparation including brief and instruction fees, and then ultimately prevails at trial and receives a further order of costs. His position is that the costs incurred to date will not need to be incurred again. He also presents the amendments proposed as being straightforward, not complex, narrow in their focus and not ones which require significant additional pre-trial preparation. 39. The Defendant's counsel (replying on the question of costs), refutes the suggestion of double-recovery, stating that the costs incurred since 18 March 2025 were costs incurred for the trial which did not proceed. While he accepted that the amendment is not complex, he disagreed that the impact was not significant, pointing to the need to undertake the same exercise again in terms of assessing witness evidence and preparing the case for trial on this new factual premise, including needing to go through discovery documentation again, by reference to the amended dates and facts. Assessment 40. There are certain important facts which are not and cannot be disputed: First, the dates allocated for the hearing of these proceedings did need to be, and were, vacated just days before that hearing was to commence. While some suggestion was made that the trial could have gone ahead I do not believe there was any reality to that suggestion. Second, the only reason for this was the late introduction of an amendment to the Plaintiff's pleadings. Third, this sequence of events did cause prejudice to the Defendant, whose defence was fully prepared on the basis of the case as pleaded since the issue of the plenary summons on 22 November 2022. Fourth, the Plaintiff and at least some of his legal team were aware of the possibility that there would be a need to amend the pleadings since 18 March 2025 and yet it was only on 15 May 2025 that this was communicated to the Defendant's legal team. 41. Having considered these facts, the evidence presented and the submissions made, I accept that the date of the alleged agreement was significant from the Defendant's perspective. While the amendment is not legally complex or extensive in its formulation, I am satisfied that, in the particular circumstances of this case, it is a material one. I am also satisfied on the basis of the (unchallenged) affidavit evidence before me that considerable - and avoidable - time and effort were expended since 18 March 2025 in building a factual defence based on a specific date, which is no longer the date relied on by the Plaintiff. This is a real, not inconsequential, prejudice. The task now is to decide what order as to costs will fairly and justly mitigate the prejudice so caused. 42. The authority relied upon by the parties is Wolfe v. Wolfe [2001] 2 IR 389. That judgment hinged heavily on the concept of " costs of the day " as that was a term used in Order 99, Rule 37(33) (as it then existed): " Where a cause being in the list for hearing is ordered to be adjourned upon payment of costs of the day, the party to pay the same shall pay to each party to whom costs are awarded if entitled to appear by three Counsel £180, if by two Counsel £110, and if by one Counsel £70 unless the Court shall otherwise direct. The foregoing sums do not include witnesses' expenses ". 43. The judgment includes the following definition of " costs of the day " from the judgment of Jessell LJ in Bourgoine v. Taylor (1878) 47. LJCH. 542 at 543: " all costs incurred, and which will be thrown away in consequence of the slip ". 44. Given that the terminology of " costs of the day " is no longer present in the Rules of the Superior Courts and has not been employed in cases adjudicating upon costs in recent years, that terminology is of limited assistance now. Indeed, the terms " costs of the day ", " costs thrown away " and " wasted costs " are apt to confuse and I do not use them in this judgment. This does not detract from the relevance and utility of the principles and approach taken in Wolfe v. Wolfe regarding the award of costs that may be recoverable when a pleading amendment is introduced late in the day. 45. What Herbert J decided in Wolfe v. Wolfe was that the full costs of the aborted trial on a party-and-party basis was excessive. Nonetheless, given that it was a re-amendment in that case and the changes proposed were substantial and introduced new and complex questions of fact and of law, the Court determined: " What in my judgment will do justice between the parties is an Order for costs in favour of the Respondents on a party and party basis but confined to Counsels" fees, witnesses" allowances and expenses, the Solicitor's proper charges for attending in Court and such other fees disbursements and charges as relate solely to the preparation of the adjourned trial and which will require to be repeated or will be of no value at the next hearing. The amendments made to the petition are so material that it is virtually certain that even should the same Counsel remain on in the matter they will nonetheless have to newly prepare the case and on this basis I consider it reasonable to allow brief fees to Counsel for the Respondents and in addition four only refreshers to Counsel for the first and second named Respondents and one only refresher to Counsel for the third named Respondents ." 46. This outcome in Wolfe v. Wolfe is the one urged by the Defendant here, who seeks party-and-party costs to include counsel fees, witness expenses, solicitor fees and expenses incurred since 18 March 2025. The Plaintiff's position, it may be recalled, is that only costs consequent on the amendment should be allowed. 47. The overriding question is what terms as to costs are a just means to mitigate the undoubted prejudice caused to the Defendant in the circumstance of this motion. In assessing this question, I am of the view that it is appropriate to take into account the undisputed delay by the Plaintiff, including the failure to notify the Defendant of the proposed amendments until days before the trial. The costs incurred during that timeframe based on the belief that the case hinged on a September 2017 agreement were avoidable. Moreover, the impact of the late notification of the amendments is that the hearing could not proceed. In addition to that cost, Defendant's legal team will now need to undertake further and different preparations for a new trial. 48. As against this, while I accept the extensive impact of the amendment on the pre-trial preparation undertaken to date by the Defendant's legal team, it is a net amendment. There are inevitably aspects of the pre-trial preparation which will not be impacted by the introduction of this amendment and which will not need to be repeated. I note that, in Wolfe v. Wolfe itself (on which the Defendant relies), despite the scale and complexity of the amendments, and the fact that they were re-amendments, Herbert J did not order the payment of all costs of the aborted trial on a party-and-party basis. 49. Having weighed the relevant factors, I do not think the prejudice caused would be remedied by an order that deals only with the costs incurred by the Defendant owing to and after the amendment. It seems likely that those costs would have been recoverable even if the amendment had been notified to the Defendant promptly after 18 March 2025 and far in advance of the scheduled trial dates. 50. That is not what happened here. Consequently, there is an undoubted and substantial element of costs which will not be encompassed within the costs of preparing for the new trial that is yet to be assigned a hearing date and which will therefore not otherwise be recoverable. 51. In all of these circumstances, I am of the view that the just order in the circumstances of this matter is an order that the Plaintiff bear liability for 75% of the costs incurred by the Defendant from 18 March 2015 in preparing this matter for trial up to and including the costs of the first day of trial. This is to cover the costs of work done by the legal team during that period on a party-and-party basis. For the avoidance of any doubt, it does not include costs incurred before 18 March 2025, such as the costs incurred by the Defendant in making discovery, such discovery having been made by affidavit sworn on 15 May 2024. It does not include costs of the Defendant's written submissions, as they had not yet been delivered before the hearing of this motion. In addition to the costs already identified, the Defendant is also entitled to the costs of delivering an amended defence (if applicable). 52. The costs of the steps that will be taken by the parties in the preparation for the trial of the newly amended case will be a matter for the trial judge to determine following the delivery of judgment in the substantive proceedings. I do not therefore see that there is a prospect of double recovery as apprehended by the Plaintiff's counsel. Any issue as to the costs claimed (including any concerns as to double recovery, if such did arise) could of course be addressed by way of adjudication as necessary. 53. Another measure that I consider to be necessary to ensure the mitigation of prejudice in this matter is that it be subject to supervision by the Court to ensure the trial comes on to hearing without further unnecessary delay. Directions have been put in place towards that end. Stay 54. I have considered the application made on behalf of the Plaintiff for a stay on any costs order and the opposition of the Defendant to such a stay. 55. I am satisfied that this is a matter in which there will be further costs orders and that it may well be that there will be a basis to set-off the parties' liabilities for costs as against each other. In those circumstances, I am satisfied that it is appropriate to grant a stay on the costs order and I grant the stay sought. Conclusions 56. For the reasons given above, I confirm that the Plaintiff was granted leave to amend the plenary summons and statement of claim in this matter. The terms of the order are that the Plaintiff is liable for 75% of the costs incurred by the Defendant from 18 March 2025 in preparing for the trial of the action, to include 75% of the fees associated with the first day of the hearing and the costs of delivering an amended defence (if applicable). 57. Given that the Plaintiff succeeded in obtaining leave to amend his pleadings and the Defendant largely (albeit not entirely) prevailed on the question of costs, I am of the provisional view that it is appropriate that there be no order made regarding the costs of this motion, with each party bearing their own costs. 58. I will list the matter before me at 10.30am on 15 October 2025 and if either party wishes to contend for a different costs order, they may do so at that time. Should this not be necessary, the parties may contact the Registrar to vacate that listing. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC398.html