IBB Internet Services Ltd & Ors -v- Motorola Ltd

Factual and Procedural Background

This action was commenced by plenary summons on 23 December 2010. While the plaintiffs are separate legal entities, they claim to be a single economic entity and assert the right to be treated as such in law and in fact. They claim damages for breach of contract, negligence, and misrepresentation against the defendant due to alleged delay in the rollout of a broadband Internet network and dysfunction of the portion of the network provided.

The relevant contract was negotiated between March and October 2009 and was to become operational in December 2009. On 13 October 2009, a written contract called a master services agreement was signed between the second named plaintiff and the defendant, later novated to the first named plaintiff on 10 November 2009. The plaintiffs also allege a collateral, apparently oral, agreement involving the third named plaintiff.

The master services agreement contains clauses limiting liability and confines the relationship to the contract terms. The defendant was to supply the network in groups of 15 sites, eventually amounting to 120 sites supplied, with 5 others in a test module, out of a projected 402 sites. The defendant alleges provisional acceptance of sites is a warranty of satisfaction, with 51 signed provisional acceptances and 74 deemed acceptances, as well as 31 signed final acceptances and 94 deemed final acceptances. No sites have been ordered since July 2010 due to dissatisfaction.

The case has been pending for over three years without trial or discovery. The plaintiffs claim to have faced numerous procedural motions, while the defendant cites the necessity to recast the statement of claim four times due to alternate pleading of facts. The High Court has issued three prior judgments on the statement of claim, and refused the defendant's application for security for costs, currently under appeal to the Supreme Court. The court emphasised the parties’ duty to cooperate to prepare the case for hearing and identify issues to be tried.

Legal Issues Presented

1. Is the master agreement the whole of the agreement between the parties or not?
2. Was there a collateral agreement, and if so, what are its terms?
3. What is the effect of the interaction, if any, between the collateral agreement and the master services agreement?
4. Who was the agreement made with: the first plaintiff, the second plaintiff, or the third plaintiff?
5. Is there a factual and legal basis to support the proposition that the plaintiffs are a single economic entity, and what are the liability consequences?
6. What were the contractual requirements?
7. What was actually rolled out?
8. Was the rollout adequate?
9. Why was there provisional or deemed provisional acceptance if performance was inadequate?
10. Is relief to be denied or limited by clauses in the master services agreement as a matter of law or fact?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasised the fundamental obligation of parties to cooperate and focus on the central issues to ensure a fair and efficient trial. It identified ten core issues to clarify the case and urged the parties to interrogate these cooperatively without obsession over peripheral procedural disputes.

Regarding interrogatories, the court analysed the procedural history where the plaintiffs corrected certain typographical and referencing errors in their answers. It accepted the plaintiffs’ affidavit that the corrected answers are to be relied upon as fact and held that questions about how errors arose or inconsistencies should be addressed through cross-examination at trial rather than pre-trial motions.

The court noted the complexity of answering numerous interrogatories and recommended future practice to answer interrogatories in a unitary document reproducing questions and answers distinctly to avoid confusion and error.

Applying Order 31 rule 11, the court found that the company secretary had answered sufficiently and that the rule allowing orders for further or viva voce answers was not applicable here. It stressed that interrogatories and discovery are tools for fair pre-trial appraisal, not to be abused for procedural delay or oppression.

The court also highlighted established case law restricting pre-trial examinations to specific questions and rejecting general cross-examinations before trial, reinforcing that disputes about truthfulness of answers are matters for trial.

In sum, the court ruled that the procedural errors identified were likely caused by the method of answering interrogatories and that corrections can be made without court leave if done promptly and explained. It discouraged unnecessary pre-trial examinations and motions that delay trial progress.

Holding and Implications

The court REFUSED the motion seeking viva voce examination of the company secretary with costs.

The decision directly prevents further pre-trial delay through oral examination on interrogatories where corrected written answers have been provided and accepted. It reinforces the principle that issues of truthfulness in answers are to be tested at trial, not through pre-trial cross-examination. No new precedent was established; rather, the ruling reaffirms existing procedural norms and encourages efficient case management.