Introduction

This Commercial Court judgment by Twomey J addresses a targeted strike‑out application made by Dildar Limited (Isle of Man) and Dildar Limited (Ireland) (together, “Dildar”) under Order 19 Rule 27 RSC. The application sought to exclude four specific pleas from the plaintiffs’ (the “Nolans’”) Points of Defence in a court‑ordered inquiry into damages on foot of the Nolans’ cross‑undertaking in damages given to obtain an interlocutory injunction in July 2017 restraining dealings with the so‑called “Nemo Rangers” development site (the “Site”).

The strike‑out bid arose after a lengthy and complex main action—marked by 69 interlocutory orders and a two‑month trial—culminated in McDonald J’s judgment (Nolan & Ors v Dildar & Ors [2024] IEHC 4) discharging the injunction and ordering an inquiry into the damages suffered by Dildar, a disposition subsequently upheld in full by the Court of Appeal ([2024] IECA 298). Dildar now claims circa €20.82m in damages for alleged lost development opportunities between 26 July 2017 and 20 February 2024.

The four impugned pleas concern: (i) the beneficial ownership of the Site; (ii) an alleged unlawful “Scheme” involving the Kenny family designed to evade creditor exposure (ex turpi causa); (iii) the availability of finance to a company with no development track record and promoters linked to NAMA debts; and (iv) contributory negligence grounded in the unlawful use of the plaintiffs’ personal information by an alleged agent (Mr John Millett). The Nolans say these matters go directly to the counterfactual evaluation of whether and to what extent Dildar could, in fact, have developed the Site and earned the profits now claimed; Dildar argues they are irrelevant, foreclosed by earlier findings, or otherwise inadmissible at the damages inquiry stage.

Summary of the judgment

• The High Court refused to strike out any of the four challenged pleas. The court emphasised the high threshold for striking out pleadings as “irrelevant” and the need for particular caution where the judge managing the damages inquiry is not the trial judge in a complex case.
• Relying on the “all the circumstances” discretion that governs the enforcement of cross‑undertakings in damages, the court held that:
  • Allegations touching beneficial ownership of the Site and of the corporate owner, uncertainties around charges, inconsistent planning documentation, and the role of third‑party funders may bear on the feasibility of financing and thus on quantum.
  • Wrongful acts of alleged agents (Mr John Millett and Mr Ciaran Desmond) and the pleaded illegality/ex turpi causa point are potentially relevant to the court’s discretionary assessment of damages, even if certain aspects were canvassed for different purposes at trial.
  • Res judicata does not preclude the damages judge from considering the effect of prior findings (e.g., data misuse by Mr Millett) on the quantum of damages claimed by a party alleged to have been his principal/beneficiary.
• The court also noted the asymmetry in Dildar reserving the right to rely on the entire trial record while attempting to foreclose the Nolans from doing likewise.
• Costs and final orders were adjourned for mention, with a reminder of the “broad‑brush” approach to costs urged by the Court of Appeal in Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189.

Analysis

Precedents cited and their influence

• Ryanair v Bravofly [2009] IEHC 41 (Clarke J): Establishes the strike‑out yardstick—courts should not lightly exclude pleaded material where there is at least some reasonable possibility it could be relevant; exclusion is warranted only where irrelevance is clear. Twomey J uses this as the primary filter for each challenged plea.
• Caldwell v Tracey [2010] IEHC 533 (Laffoy J), quoting Lloyd LJ in Financiera Avenida SA v Shiblaq [1991] TLR 3:
  • Two‑stage approach to enforcing cross‑undertakings: (1) whether to enforce at all—a discretionary assessment in light of all the circumstances; and (2) whether and what damage the defendant suffered by reason of the injunction.
  • The trial judge ordinarily undertakes this assessment because he or she is most familiar with the case. In this matter, the damages and strike‑out issues are before a different judge, prompting a heightened note of caution.
• Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189: Emphasises efficient use of court resources and a broad‑brush approach to costs. Cited to encourage pragmatic case management at the mention date on orders and costs.
• Nolan & Ors v Dildar & Ors [2024] IEHC 4; [2024] IECA 298: The main trial decision and its affirmance provide the procedural predicate for the damages inquiry and the factual matrix relevant to contested issues (e.g., agency, ownership claims, planning documentation).

The court’s legal reasoning

1) High strike‑out threshold applied with added caution

Order 19 Rule 27 allows the court to strike out pleadings that are irrelevant or constitute an abuse. Ryanair v Bravofly demands restraint: matters are struck out only where their irrelevance is clear. Twomey J emphasises an additional reason for caution here: unlike the usual case contemplated by Financiera/Calwell, the damages judge is not the trial judge. Combined with the exceptional complexity of the underlying litigation (two‑month trial; 317‑page judgment; 69 pre‑trial orders), this militates against foreclosing arguments that could bear on the discretionary damages assessment.

2) “All the circumstances” in cross‑undertaking enforcement

Following Caldwell/Financiera, whether (and how much) to award under a cross‑undertaking is an equitable discretion informed by “all the circumstances.” In this frame, alleged illegality, agency wrongdoing, and the true state of beneficial ownership are not mere side issues; they may affect both the decision to enforce and the measure of loss. The court stressed that allowing a plea to stand does not endorse its merits; it only preserves the opportunity to argue relevance and probative value at the inquiry.

3) Parity and procedural fairness

Dildar expressly reserved the right to rely on the judgment and “any evidence” adduced across the proceedings. It would be incongruous to clip the Nolans’ ability to rely on overlapping parts of the record that may bear on the damages counterfactual. This parity concern reinforced the decision not to strike out.

4) Res judicata vs. quantum relevance

Res judicata prevents re‑litigating matters already determined. But the judge distinguished using prior findings as inputs into a separate quantum inquiry from re‑trying the earlier issues. For example, McDonald J’s finding that Mr Millett unlawfully used the Nolans’ personal data (for which he awarded €500 to each plaintiff) can legitimately be considered for its downstream effect on the equities of awarding damages to parties alleged to have been his principals/beneficiaries. That is not re‑litigation; it is the evaluation of “all the circumstances.”

Application to the four contested pleas

Paragraph 10 (beneficial ownership and funding context)

• The plea notes that the purchase consideration largely flowed from Clear Vision entities (CVSHI/CVSSA) and asserts a beneficial vesting. The court highlighted:
  • Dildar IOM’s own pleading that CVSHI agreed a loan for purchase/development and was to be secured by a charge—yet no charge is registered.
  • Conflicting ownership assertions: at trial, alternative pleas that the Site was beneficially owned by individuals (Darren and Dillon Kenny), inconsistent planning applications naming Dildar Ireland (not Dildar IOM) as owner, and easements acquired by Dildar Ireland.
  • Disputes over the beneficial ownership of the corporate owner (Dildar IOM) itself.
• These matters could influence lenders’ appetite and therefore the plausibility of the lost‑profit counterfactual. The court could not say it was “clear” they are irrelevant; plea permitted.

Paragraph 25(d) (ex turpi causa and agent illegality)

• The plea alleges a scheme to use pension/other funds to circumvent creditor exposure (including NAMA) and relies on ex turpi causa to preclude or reduce recovery. The court noted:
  • Evidence of agency links: Mr Millett and Mr Desmond were agents of the Kenny family and/or Dildar; Mr Paul Kenny (a director of Dildar Ireland) knew of efforts to obscure Kenny involvement (referenced at para. 448 of McDonald J’s judgment).
  • Even if certain admissions by Mr Desmond were not binding for title purposes at trial, the damages judge may consider alleged agent wrongdoing when exercising discretion on quantum.
• Given Caldwell’s emphasis on discretion and “all the circumstances,” the plea was not clearly irrelevant; it stands.

Paragraph 25(b)(8) (funding availability given promoters’ track record and NAMA exposure)

• The plea challenges the expert report’s failure to demonstrate funding availability for an unknown developer with limited experience and family members indebted to NAMA. The court considered:
  • The totality of ownership and control uncertainties; misstatements in planning documents; the unregistered charge point; and assertions that Dildar had not approached lenders or prepared a business plan, and that Dildar Ireland lacked a bank account during relevant times.
  • The commonsense proposition that lenders assess promoter track record and repayment history (including with NAMA) in deciding to lend.
• As these factors bear on the core counterfactual—would funding have been obtained?—the plea is potentially relevant and survives.

Paragraph 43 (contributory negligence grounded in agent data misuse)

• Dildar accepted a general plea of contributory negligence but objected to the reference to Mr Millett’s unlawful use of the Nolans’ personal data, asserting res judicata. The court held:
  • The damages inquiry will not revisit the finding or quantum awarded against Mr Millett; instead, it may consider the effect of that established wrongdoing on Dildar’s claim as principal/beneficiary.
  • This is not barred by res judicata; the italicised words remain.

Why this matters: the court’s principled caution

Twomey J’s approach fashions a nuanced, practical template for damages inquiries on foot of cross‑undertakings, especially in sprawling, document‑heavy litigation where the inquiry judge was not the trial judge. It ensures the inquiry is informed by a realistic “all the circumstances” assessment of causation and mitigation, including:

• Corporate and beneficial ownership complexities;
• Agent/principal dynamics and wrongdoing;
• Funding feasibility grounded in lender‑facing realities (track record, charges, clarity of title, clean planning and corporate documentation).

In short, the decision refuses to truncate the inquiry’s factual field prematurely.

Impact and prospective significance

1) Cross‑undertaking damages: a broadened lens for quantum

• Parties claiming substantial “lost profits” under a cross‑undertaking should expect searching scrutiny of whether the development would realistically have proceeded—funding, regulatory clarity, and promoter track record are all in play.
• Allegations of illegality or agent misconduct on the claimant’s side can be ventilated at the quantum stage. Even if such matters failed to ground title in the main action, they may still influence the discretionary assessment of damages.

2) Res judicata and prior findings at the damages stage

• The judgment clarifies that res judicata does not prevent the damages judge from relying on earlier trial findings as “circumstances” relevant to quantum, provided the purpose is not to re‑determine previously adjudicated liability issues.

3) Strike‑out practice in complex cases before a non‑trial judge

• Where the judge overseeing damages did not conduct the trial and the record is unusually complex, a further layer of restraint applies to strike‑out motions.
• Applicants face a steeper climb to show that a plea is clearly irrelevant; parity and procedural fairness considerations will be closely policed.

4) Practical messages for development‑linked claims

• Misstatements in planning materials, unregistered security interests, muddled corporate/beneficial ownership, and the absence of a credible financing pathway (no lender approaches, no business plan, no bank account) will undermine a lost‑opportunity claim.
• Corporate structuring designed to “obscure” beneficial interests invites judicial skepticism in assessing damages that depend upon lender confidence and regulatory transparency.

5) Costs culture

• The nod to Word Perfect [2023] IECA 189 signals continued insistence on proportional, non‑nit‑picking approaches to costs in follow‑on phases of sprawling litigation.

Complex concepts simplified

• Cross‑undertaking in damages: A promise by the party obtaining an interlocutory injunction to compensate the restrained party if it later turns out the injunction should not have been granted, to the extent the restraint caused loss.
• Order 19 Rule 27 RSC strike‑out: A procedural mechanism to remove pleadings that disclose no reasonable case or are clearly irrelevant, or otherwise abusive. Courts use it sparingly.
• Res judicata / issue estoppel: Doctrines preventing re‑litigation of matters already finally decided. Using earlier findings as context in a different question (e.g., quantum) is not the same as re‑trying them.
• Ex turpi causa: The principle that a party may be precluded from recovering if their claim is founded on their own illegality. In discretionary settings (like cross‑undertaking damages), illegality can inform whether and how much to award.
• Legal vs. beneficial ownership: Legal ownership is the registered titleholder; beneficial ownership concerns who ultimately enjoys the economic benefits. For lenders, clarity in both matters; confusion can stymie funding.
• Agent/principal: A principal can be affected by acts of its agent. Wrongdoing by an agent may weigh in the court’s equitable discretion when awarding damages to the principal.

Conclusion

Nolan v Dildar [2025] IEHC 575 is a considered reminder that damages inquiries on foot of cross‑undertakings are equity‑laden exercises grounded in “all the circumstances.” On a strike‑out application, particularly where a non‑trial judge grapples with an immense and intricate record, the court will err on the side of allowing parties to run pleas that plausibly bear on quantum—even if those issues intersect with terrain traversed for other purposes at trial.

The decision crystallises several practical and doctrinal points: beneficial ownership and corporate control disputes, agent wrongdoing, alleged illegality, and lender‑facing realities are all potentially relevant to whether the claimed profits would, in truth, have been realised. Prior findings can be used as inputs to a quantum assessment without triggering res judicata concerns. Parties seeking large lost‑opportunity damages must be prepared to demonstrate a credible, financeable development plan, while applicants for strike‑out should expect a cautious reception where relevance is arguable.

In sum, the judgment sets a precedent of procedural and substantive restraint: do not narrow the canvas too early in a cross‑undertaking damages inquiry, especially in complex litigation where the equities may turn on the very factors the strike‑out seeks to excise.

Key takeaways

• Strike‑out is exceptional; where a plea could be relevant to quantum under the “all the circumstances” test, it should stand.
• Beneficial ownership uncertainties, unregistered securities, and planning irregularities can meaningfully affect a lost‑profits counterfactual.
• Agent illegality and ex turpi causa are legitimately arguable at the damages stage; res judicata does not bar reliance on prior findings to inform quantum.
• Where the damages judge is not the trial judge, the court will be especially hesitant to curtail the range of relevant pleas.
• Claimants should marshal concrete evidence of funding capacity and development readiness; defendants may explore weaknesses in those areas to challenge quantum.