About this case:

• Citation:
  [2025] IEHC 398
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nessa Cahill

Delivering judgment for the High Court, Ms Justice Nessa Cahill confirmed that “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”.

Background

In late 2022, the plaintiff issued proceedings alleging that in September 2017 while attending SBG gym on the Naas Road, he entered into an oral agreement with the defendant, Conor McGregor, pursuant to which the defendant agreed to pay him five per cent of the proceeds of the sale of his whiskey, “Proper No. 12”.

The plaintiff alleged that the agreement was confirmed by a handshake and was witnessed by three individuals.

The matter was eventually set down for trial on 5 December 2024 and was assigned a hearing date of 20 May 2025 for an eight-day trial. On 15 May 2025, it was confirmed at a call-over in the High Court that the case was proceeding.

Application for leave to amend

Shortly after the call-over, the plaintiff’s solicitors notified the defendant’s solicitor that the plaintiff was changing his position in relation to the month in which the alleged agreement was formed and that an application to amend his pleadings would be made at the commencement of the hearing.

Following the receipt of the letter, the matter was listed in the High Court on 16 May 2025 and the trial date was vacated. The plaintiff issued a motion seeking leave to amend his proceedings on 19 May 2025.

The plaintiff averred that he had made an error with regard to the date of his meeting with the defendant and that same had actually occurred during the week of 9 October 2017.

In that regard, the plaintiff suggested that he had in fact been abroad from 5–15 September 2017 and that while preparing for the trial, he discovered an old damaged phone amongst his belongings and managed to access texts on that phone which showed that his estimated date of the agreement was incorrect.

The plaintiff further averred that he brought the error to his solicitor’s attention on 18 March 2025, who advised that he double-check the information.

The defendant’s solicitor swore a replying affidavit highlighting the need for a “full and frank explanation” for the delay in seeking to amend, the importance of the date of the alleged agreement and the pre-trial work and preparation completed on the defendant’s behalf based on the date and alleged witnesses as pleaded, and alleged “considerable efforts and expense” in seeking to make the case that the meeting could not have taken place in September 2017.

It was further alleged that additional discovery would need to be made and that the discovery furnished to date would need to be re-reviewed, and that an appropriate order as to costs would be required to reflect the unnecessary expense incurred.

The application was heard on 21 May 2025.

The High Court

Ms Justice Cahill noted the plaintiff’s reliance on Porterridge Trading Limited v. First Active plc [2007] IEHC 313, finding that in light of the new information discovered by the plaintiff there could be “no doubt that it was entirely open to the plaintiff to plead the case that is now proposed to be pleaded” and that there was “no basis or need for the court to assess the merits of the claim or the proposed amendments”.

The court considered the broad discretion to allow amendments under Order 28, Rule 1 of the Rules of the Superior Courts, finding that the primary question was whether, and to what extent, there was prejudice justifying the refusal of the amendments for which leave was sought and whether any such prejudice could be minimised in a manner which would be just to all parties involved.

Having regard to the defendant’s opposition to the amendments, Ms Justice Cahill confirmed that in line with Porterridge, the adequacy or otherwise of an explanation for the requirement to make an amendment could be weighed as part of the assessment of the overall prejudice to the parties and only if the justice of the case so required.

The judge could not conclude that there was no reasonable explanation on part of the plaintiff or that the delay was deliberate or tactical, and was satisfied that the amendments were necessary and that there was no prejudice which could not be remedied by appropriate costs orders and onward case management.

Turning to the appropriate costs order, the court considered the defendant’s contention that as soon as the new information came to light, it should have been disclosed to the plaintiff’s legal team directly and so an order for the recovery of all costs incurred since 18 March 2025 in the preparation of the case for trial was required to be made on a “party and party” basis.

The plaintiff asserted inter alia that only the costs consequent upon the amendment should be allowed, that the costs incurred to date would not need to be incurred again and that there was a prospect of double-recovery on part of the defendant.

The court accepted that the date of the alleged agreement was significant from the defendant’s perspective and that while the amendment was not legally complex or extensive in formulation, “it is a material one”.

The court was further satisfied that on the basis of the unchallenged evidence before it 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.”

Noting that the authority relied upon by the parties, Wolfe v. Wolfe [2001] 2 IR 389, hinged heavily on the concept of “costs of the day”, terminology that was no longer present in the Rules of the Superior Courts and which had not been employed in cases adjudicating upon costs in recent years, Ms Justice Cahill considered that while that terminology was now of limited assistance, that did not detract from the “relevance and utility” of the principles and approach taken in Wolfe.

The court believed it appropriate to take into account the undisputed delay by the plaintiff, including his failure to notify the defendant of the proposed amendments until days before the trial, where there were consequent substantial costs which would not be encompassed within the costs of preparing for the new trial and which would not otherwise be recoverable.

Conclusion

Accordingly, the High Court granted leave to the plaintiff to amend its pleadings and found that the plaintiff should bear liability for 75 per cent of the costs incurred by the defendant from 18 March 2025 in preparing for the trial of the action, to include 75 per cent of the fees associated with the first day of the hearing and the costs of delivering an amended defence, if applicable.

The court also indicated its view that it would be appropriate that no order as to costs would be made in respect of the amendment motion, where the plaintiff was successful and where the defendant largely prevailed on the question of costs.

Artem Lobov v Conor McGregor [2025] IEHC 398