Unrestricted Plenary Remittal Preserves Counterclaims: Factual Particulars and Proportionate Discovery

1. Introduction

This judgment addresses how a commercial action should proceed after an unsuccessful application for summary judgment. Its central procedural holding is that an order sending proceedings to plenary hearing, without restricting the issues or excluding a counterclaim, does not implicitly prevent the defendant from counterclaiming. The decision also carefully distinguishes between particulars, which identify the material factual allegations, and discovery, which supplies documentary evidence relevant and necessary to resolving them.

The dispute arose from a Search Distribution Agreement between Dogo Media Limited, a UK publisher of internet search software, and Tempest Tech Limited, an Irish search monetisation and distribution business. Dogo claimed unpaid revenue shares. Tempest alleged that Dogo supplied invalid, unauthorised or contractually “fraudulent” traffic, justifying withheld payments, termination and substantial liquidated damages.

The court was deciding interlocutory applications, not the parties’ ultimate contractual rights. It did not determine whether the traffic was non-compliant, whether the withheld revenue was payable, whether the liquidated damages provision was enforceable, or whether the alleged duties of good faith and reasonable discretion existed.

2. Background and Issues

The contractual relationship

The parties entered into the Agreement on 24 July 2023 for an initial one-year term. Dogo distributed search services available through Tempest’s platform. Third-party providers paid revenue to Tempest, which then shared it with Dogo at contractual rates of 73%, 77% or 80%, depending on monthly thresholds.

The Agreement incorporated Guidelines governing implementation and traffic quality. Clause 6.3 addressed unauthorised or fraudulent revenue, including prohibited automated searches, repeated manual clicks and other disallowed activity. Clause 5.2(e) provided, on the contractual conditions being satisfied, for liquidated damages equal to twice the cumulative payments made during the preceding year, relief from outstanding payment obligations and immediate termination at Tempest’s sole discretion.

Tempest alleged that traffic-quality concerns emerged during the latter half of 2023. It relied particularly on Microsoft’s Partner Traffic Quality Score system, asserting that Dogo scored 1.5 against a minimum acceptable threshold of 2.0, and on alleged use of sources other than the approved Google Chrome extension. Those allegations remained disputed.

The payment dispute

Dogo invoiced USD $73,383 for November 2023. Tempest paid USD $18,336.67, approximately one quarter of that invoice. A December invoice of approximately USD $29,822 remained unpaid. On 11 January 2024, Tempest communicated its position that contractual breaches entitled it to terminate, withhold payment and pursue liquidated damages.

Dogo commenced summary proceedings in March 2024 for USD $84,868.33, together with interest and costs. Nolan J. refused summary judgment on 7 April 2025 and directed that the action continue as though commenced by plenary summons. Tempest subsequently delivered a Defence and Counterclaim seeking approximately €612,284.14 under the liquidated damages provision, or alternatively damages for breach of contract.

The applications before the court

The judgment determined five applications:

1. Dogo’s application to exclude or strike out Tempest’s Counterclaim.
2. Dogo’s application for further and better particulars.
3. Tempest’s application for particulars of paragraph 24 of the Statement of Claim, or alternatively to strike out that pleading.
4. Dogo’s application for discovery.
5. Tempest’s application for discovery.

Paragraph 24 was particularly important. It alleged that Tempest had generally ceased operating relevant Microsoft syndicated partnerships and adopted a policy of retaining partners’ revenue shares. Dogo relied on that allegation to support its pleaded case of improper purpose, arbitrariness and bad faith, and to justify discovery extending beyond its own invoices.

3. Summary of the Decision

• The Counterclaim remained: the order directing plenary proceedings did not prohibit it, and it substantially overlapped with the Defence.
• Dogo obtained limited further particulars: Tempest had to identify the factual conduct or traffic characteristics said to constitute contractual non-compliance. Most other requests sought evidence, legal argument or matters outside the relevant pleading.
• Paragraph 24 remained: it was insufficiently particularised but had some existing factual foundation and supported an identifiable contractual claim.
• Further particulars of paragraph 24 were deferred: Dogo was directed to reply within ten weeks after Tempest made discovery, or within another period agreed by the parties.
• Discovery was tailored: the court permitted documents necessary to investigate the pleaded dispute, including limited anonymised comparator material, while rejecting disproportionate, duplicative and collateral inquiries.

The parties were invited to agree the form of the final order. The matter was to be listed for mention after 14 days, with consequential matters reserved for further consideration.

4. Precedent and Procedural Framework

The cited Court of Appeal authority

The judgment’s expressly identified precedent was National Asset Loan Management Limited v. Kelleher [2016] 3 I.R. 568, [2016] IECA 118. Dogo relied on it to argue that the earlier order constrained Tempest’s ability to counterclaim.

That authority concerned the relationship between summary judgment, leave to defend and a proposed counterclaim. The Court of Appeal held that a defence dependent on set-off through a counterclaim constituted a bona fide defence only where the connection between the claims established a prima facie entitlement to set-off founded on a bona fide counterclaim. It also recognised the court’s jurisdiction, when granting leave to defend, to prohibit a counterclaim in the proceedings. Such a prohibition did not prevent the defendant from bringing a separate action.

The decisive distinction was the wording and context of the remittal order. In the cited case, the High Court expressly confined the plenary hearing to an estoppel issue and expressly prohibited the proposed counterclaim. The restriction followed a determination that another proposed defence lacked reality.

Here, Nolan J.’s order contained no comparable restriction and made no findings on the parties’ respective merits. The court apparently knew that a counterclaim was contemplated, yet did not exclude it. Subsequent agreed directions contemplating a Defence to Counterclaim further undermined Dogo’s interpretation.

Phelan J. therefore distinguished the authority rather than rejecting its principle. The earlier decision demonstrated that restrictions were legally possible; it did not establish that silence should be treated as a restriction.

The Rules of the Superior Courts

The court considered Order 19, rules 2 and 27, and Order 37, rules 7 and 10, in addressing remittal, counterclaims and strike-out. Those provisions formed the procedural framework within which summary proceedings could continue as plenary proceedings and a counterclaim could accompany the Defence, subject to the court’s powers of control.

Order 19, rule 3 supplied the central pleading principle: pleadings must state material facts, not the evidence by which those facts will be proved. The judgment repeatedly applied that distinction to separate legitimate requests for particulars from premature demands for proof.

No separate penalty-clause or contractual good-faith authorities were analysed. Accordingly, the decision should not be read as resolving the substantive law governing either issue.

5. Why the Counterclaim Was Allowed

No implied restriction arising from plenary remittal

The order directing plenary proceedings was a case-progression order, not a merits-based limitation on Tempest’s defence. Because proceedings were to continue as though commenced by plenary summons, the ordinary entitlement to deliver a counterclaim with the Defence remained available. Separate permission could not be inferred merely because the directions mentioned a Defence but omitted a Counterclaim.

This conclusion was contextual. The court retained jurisdiction to restrict issues when granting leave to defend and to exclude or strike out a counterclaim later on an appropriate basis. The decision establishes no immunity for counterclaims following remittal; it rejects the proposition that an unrestricted remittal silently removes the ordinary procedural entitlement.

Substantial overlap made a single trial appropriate

The Counterclaim also survived the separate challenge that it should now be excluded or struck out. Both the Defence and Counterclaim depended on substantially the same matters:

• The alleged invalid, fraudulent, non-billable or low-quality traffic.
• The alleged failure to use the approved implementation.
• Microsoft’s standards, assessments and communications.
• Clauses 6.3 and 5.2(e) of the Agreement.
• The events surrounding the November and December 2023 invoices.

The Defence used these allegations as a shield against payment; the Counterclaim used them as a sword to obtain affirmative relief. Removing the Counterclaim would not materially remove the underlying factual controversy or associated documentary issues.

The court therefore found that the Counterclaim could conveniently be tried within the existing action. It had not been shown to be abusive, frivolous, vexatious, bound to fail or otherwise suitable for the exceptional strike-out jurisdiction. This was a procedural decision permitting adjudication, not an endorsement of the Counterclaim’s merits.

6. Particulars: Identifying the Allegation Without Demanding Its Proof

The governing distinction

Particulars must enable a party to understand, in broad outline, the case it must meet. They are not a substitute for discovery, cross-examination or legal submissions. Requests may properly be refused where they seek technical evidence, argumentative explanations, contractual interpretation or matters not arising from the relevant pleading.

Most of Dogo’s requests crossed that boundary. Questions about whether contractual discretion was legally constrained by reasonableness, how the Agreement should be interpreted, or why reliance on a clause was not retaliatory were generally matters for legal argument or evidence rather than further factual pleading.

Contractual labels were not a sufficient factual case

One important deficiency remained. Tempest repeatedly alleged invalid, fraudulent or non-compliant traffic without sufficiently identifying the conduct or traffic characteristics underlying that classification.

Tempest explained that it was not alleging fraud in the conventional legal sense. It used “fraudulent traffic” in the contractual sense contemplated by the Agreement and Guidelines. That explanation did not eliminate the need to identify what Dogo was actually alleged to have done.

The court drew a practical distinction between:

• Identifying the allegation: stating the conduct or characteristic said to make the traffic contractually non-compliant.
• Proving the allegation: supplying the technical data, Microsoft communications, reports or analyses supporting that conclusion.

Dogo was entitled to the former through particulars, but not the latter. A further reply was therefore directed to paragraph 4 of its Notice for Particulars, recast around the pleaded traffic non-compliance relied on to justify withholding payment and termination.

The ruling is significant for technically complex disputes. Specialist terminology may summarise an allegation, but cannot replace the material facts necessary to understand it.

The liquidated damages claim

The court considered the contractual formula sufficiently identified for pleading purposes. It did not require further particulars merely to explore Dogo’s legal argument that the provision was penal. A specific request concerning actual losses was no longer pursued at the hearing.

This should not be generalised into a rule that losses never require particularisation. The conclusion reflected the pleaded contractual mechanism, the requests actually maintained and the distinction between factual clarification and legal challenge.

Preparation of particulars motions

Phelan J. criticised Dogo’s failure to explain, before the hearing, which replies remained unsatisfactory and why. Numerous requests were abandoned or narrowed only during oral argument. That unnecessarily prolonged the hearing and made the dispute harder to decide.

The practical lesson is to analyse replies, identify outstanding deficiencies and communicate concessions before pursuing a motion. A request that was unanswered when proceedings began may no longer require adjudication once replies have been delivered.

7. Paragraph 24: An Inadequately Particularised Plea Was Not Necessarily Speculative

Its relevance to the contractual claim

Paragraph 24 did not advance an independent cause of action. Describing a policy as “wrongful and unlawful” could not, by itself, establish liability. Dogo still had to prove its entitlement to payment and the elements of the contractual or other claims it advanced.

Nevertheless, the alleged wider retention policy could support Dogo’s pleaded case concerning improper purpose, arbitrariness and bad faith. If withholding resulted from a general commercial withdrawal from syndicated partnerships rather than genuine concerns particular to Dogo’s traffic, that might bear on the exercise of the contractual powers in issue.

The court accepted this relevance without deciding that the alleged contractual duties existed or had been breached.

The circularity problem

Dogo had not identified the other affected partners, invoicing periods or sums allegedly retained. Its response was that those details lay principally within Tempest’s knowledge and would emerge through discovery.

The court recognised the danger: a party cannot simply make a speculative allegation, use it to obtain extensive discovery and then search for a case. But it distinguished that situation from an allegation with an existing factual foundation whose fuller details are held by the opponent.

The email of 8 December 2023, stating that Tempest was not then submitting anything to Microsoft for approval, supplied some foundation. Its meaning was disputed: it might concern Dogo alone rather than a general cessation. That uncertainty made the document’s scope and context relevant; it did not establish the wider allegation.

Sequencing as the solution

The court retained paragraph 24 and directed further particulars after Tempest’s discovery. This preserved a potentially legitimate claim while requiring later clarification.

Strike-out was refused because the factual allegation supported an identifiable contractual claim and was not merely bare assertion. Individual paragraphs need not each disclose an independent cause of action where they explain or support an existing one.

The refusal was not final protection for the allegation. Its evidential foundation could be reassessed after discovery and particulars, and the strike-out application could potentially be renewed. Unreasonable maintenance of an expanded case could also increase Dogo’s adverse costs exposure.

8. Discovery: Relevance, Necessity and Proportionality

The court applied three distinct questions to both parties’ applications:

1. Relevance: does the category bear on an issue arising from the pleadings?
2. Necessity: is discovery required for fair disposal of that issue or saving costs?
3. Proportionality: does its likely forensic value justify the burden and breadth of the exercise?

Relevance alone was insufficient. Existing discovery, duplication, time limits, confidential third-party dealings and the risk of collateral disputes all affected the result.

Discovery ordered against Tempest

Discovery ordered against Dogo

Why internal operational records were separately discoverable

The court rejected Tempest’s argument that Microsoft communications necessarily exhausted the relevant evidence about traffic quality. Correspondence with Microsoft and Tempest’s internal technical records were different documentary sources. The latter could reveal the methodology and assessments Tempest itself relied upon.

By contrast, Category 10 added insufficient value beyond other ordered categories. The distinction shows that overlap is not automatically fatal: the question is whether a category supplies a necessary additional evidential source or merely repeats an existing search.

Comparator evidence: targeted, not unlimited

Limited anonymised comparisons within the same programme could help test whether Dogo was treated inconsistently. That justified narrowly framed PTQS and withholding material for the final quarter of 2023.

Dogo’s performance for unrelated third parties was different. Those arrangements might involve different contractual standards, filtering systems and metrics. Establishing comparability could expand the action into disputes about transactions otherwise outside it.

The apparent asymmetry was therefore principled: closely connected comparators could be useful and manageable, whereas external comparisons lacked a sufficiently direct pleaded and evidential connection.

Penalty doctrine and retaliatory invocation were separate issues

The court distinguished the objective enforceability of the liquidated damages provision from the alleged motive for invoking it. Tempest’s subjective reasons were not relevant merely because Dogo called the clause a penalty. Enforceability would principally depend on the Agreement and applicable law.

However, Dogo separately pleaded retaliatory invocation, bad faith and improper purpose. Contemporaneous documents explaining the decision to seek liquidated damages could bear on those allegations. Discovery was therefore permitted within a defined period linked to the alleged retaliation.

This did not remove legal professional privilege. Any properly arising claim remained available and could be asserted in the discovery affidavit.

Reciprocity did not displace independent scrutiny

Tempest’s possession of its own business records did not excuse Dogo from discovering documents supporting paragraph 24. A party advancing a positive factual allegation must disclose relevant material within its own control, even if the opponent may possess more extensive records.

Nevertheless, discovery was not awarded merely to create symmetry. Each category still had to satisfy relevance, necessity and proportionality.

9. Complex Concepts Simplified

Summary proceedings and plenary hearing

Summary procedures allow suitable claims to be resolved without a full trial. Plenary proceedings permit fuller pleadings, discovery and a trial where issues require investigation. Refusing summary judgment does not decide who ultimately wins.

Counterclaim and set-off

A counterclaim seeks relief against the claimant. Set-off seeks to reduce or defeat the claimant’s demand by reference to a cross-demand. Whether a cross-demand supplies a defence to summary judgment is distinct from whether it may be litigated independently.

Material facts and evidence

A material fact identifies what allegedly happened. Evidence is the data, document or testimony used to prove it. Particulars clarify the former; discovery obtains relevant documentary material concerning the latter.

Liquidated damages and a penalty

Liquidated damages are contractually specified consequences of breach. Calling a sum “liquidated damages” does not itself establish enforceability. This judgment left the penalty challenge unresolved.

Fishing expedition

An attempt to investigate broadly in the hope of finding a claim, rather than obtaining documents needed to resolve an adequately grounded, existing dispute.

Strike-out

The exceptional removal of a claim or pleading before trial. Difficulty of proof or apparent weakness does not, without more, justify it.

Privilege

A protection that may prevent disclosure of qualifying material despite its relevance. The discovery order did not override properly established privilege.

10. Significance and Future Impact

First, remittal orders should be drafted precisely. A party seeking to confine a plenary hearing or exclude a counterclaim should obtain a clear restriction. Ordinary procedural rights will not be treated as removed simply because case-management directions omit reference to them.

Second, technical disputes still require intelligible factual pleading. Labels such as “invalid” or “fraudulent traffic” cannot substitute for identifying the conduct or characteristics alleged. Equally, pleading rules do not entitle an opponent to demand the entire technical proof through particulars.

Third, sequencing can address genuine information imbalance. Where an allegation has some factual foundation but important details lie with the opponent, targeted discovery followed by further particulars may be preferable to either immediate strike-out or unrestricted investigation.

Fourth, discovery requires an incremental justification. Parties should explain not only why documents may be relevant, but why each category is needed beyond material already available or ordered. Appropriate time limits, anonymisation and precise subject matter can preserve useful evidence while reducing burden.

Finally, the decision’s reach is procedural. It does not establish a general implied duty of good faith, decide whether Tempest’s discretion was constrained, or validate the liquidated damages clause. Those substantive questions remained for adjudication on the developed factual and legal record.

11. Conclusion

The judgment preserves an overlapping counterclaim following unrestricted plenary remittal while insisting on disciplined pleadings and proportionate documentary disclosure. Its organising distinction is simple: particulars identify the factual case; discovery supplies necessary documentary proof.

Its broader significance lies in calibrated case management. Potentially viable allegations were retained, inadequate particulars were required, evidential gaps were addressed through targeted discovery, and unnecessary collateral inquiries were refused—all without prejudging the underlying contractual dispute.