People Centre Inc v O'Brien - Commercial Court Case

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  People Centre, INC [D/B/A Rippling] and Anor v O'Brien and Ors [No. 2] (Approved) [2026] IEHC 179 (20 March 2026)

URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC179.html
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?THE HIGH COURT

COMMERCIAL

INTELLECTUAL PROPERTY & TECHNOLOGY

[2026] IEHC 179

[Record No. 2025/1289P]

BETWEEN

PEOPLE CENTRE, INC (D/B/A RIPPLING)

?AND RIPPLING IRELAND LIMITED

PLAINTIFFS

AND

KEITH O'BRIEN, ALEXANDRE BOUAZIZ, ANDREA DAVID MIELI,

DEEL INC AND ASIF MALIK

DEFENDANTS

---

JUDGMENT No. 2 of Mr Justice Mark Sanfey delivered on the 20th day of??? March 2026.

Introduction.

1. This judgment relates to an application by the fourth-named defendant ("Deel") for an order "pursuant to O.19, rules 27 and/or 28 of the Rules of the Superior Courts" and/or "pursuant to the inherent jurisdiction of this honourable court"... striking out pleas in three paragraphs of the plaintiffs' amended statement of claim ('the ASOC').

2. The application is grounded on a notice of motion issued on 10 July 2025 which sought the striking out of eleven paragraphs of the ASOC. Deel also brought a motion to compel replies to particulars which in addition sought production and inspection of a document referred to in the ASOC as the "Termination Agreement". The second, third and fifth named defendants - the "individual Deel defendants" - brought a motion to set aside their joinder to the proceedings and in any event to contest jurisdiction. All of the applications were heard together from 2nd to 5th December 2025.  Deel's inspection motion and the joinder and jurisdiction motion of the individual Deel defendants are the subject of separate judgments of this Court, although it is recommended that all three judgments be read together, so that the full context of the positions of the parties may be understood.

3. As regards the present application, the parties corresponded with a view to narrowing the issues for the hearing. This resulted in relief being sought at the hearing in respect of only three of the eleven categories. It was agreed that relief would not be sought in respect of five paragraphs, and that the issue of whether relief would be pursued in respect of a further three categories could be "parked" pending the decision of the court on the three paragraphs which remained "live".

4. The position, then, is that relief was sought in accordance with the notice of motion in respect of only paras. 30, 54 and 67 of the ASOC. Before dealing with those individual paragraphs, it is necessary to say something about the background to the application.

Background

5. The plaintiffs commenced the proceedings on 12 March 2025, with the first named defendant ("Mr O'Brien") as the sole defendant. It was at that stage alleged that Mr O'Brien "had been engaged in a covert course of conduct whereby he had spied for Deel and had provided Deel with the plaintiffs' trade secrets... and proprietary and confidential information" [para. 10 ASOC].

6. On 12 March 2025, this Court granted urgent ex parte relief aimed at obtaining and preserving evidence of Mr O'Brien's alleged wrongdoing. Mr O'Brien did not comply with the order, and it is alleged by the plaintiffs that, in breach of the tipping off provisions of the order, Mr O'Brien was in contact with each of the individual Deel defendants. On 17 March 2025, the plaintiffs issued proceedings against Deel in the US District Court for the Northern District of California ("the US proceedings").

7. At paras 17 and 18 of the ASOC, the plaintiffs plead as follows: -

"17. ?On or after 14 March 2025, the Deel Defendants agreed to use lawful and unlawful means to frustrate the Order and to create a false narrative to explain the bringing of these Proceedings, the obtaining of the Order and Mr O'Brien's non-compliance with the Order. The Deel Defendants' conspiracy is hereafter referred to as "the Scheme".

1. ?The dominant purpose of the Scheme was to damage the Plaintiffs and their reputation by creating a false narrative whereby Mr O'Brien and Deel were portrayed as the victims of unmeritorious and abusive conduct on the part of the Plaintiffs and by causing Mr O'Brien to destroy evidence that would undermine that false narrative. Without prejudice to the generality of the foregoing, the Deel Defendants agreed that they would create a false narrative to the effect that:

(a) The Plaintiffs brought these proceedings and obtained the Order to punish Mr O'Brien for making protected disclosures in connection with sanctioned payments to Russia;

(b) The purpose of these proceedings was to manufacture evidence and to coerce Mr O'Brien into making false allegations against Deel; and

(c) After 27 March 2025, when Mr O'Brien agreed to cooperate, the Deel Defendants expanded the false narrative by alleging that the Plaintiffs had succeeded in their nefarious objects and had through coercion and duress caused Mr O'Brien to swear an affidavit in which he made false allegations against the Deel Defendants. The Deel Defendants made these claims notwithstanding that as of 27 March 2025, Mr O'Brien was represented by solicitors and counsel and the solicitors representing Mr O'Brien had been recommended to him by Deel's former solicitors, A&L Goodbody."

8. At paras 19 to 31 of the ASOC, the plaintiffs set out "Particulars of the Deel Defendants' conduct in pursuance of the Scheme (including particulars of defamatory statements made in connection with the Scheme...)." These paragraphs include details of "instructions" which the Deel defendants are alleged to have given Mr O'Brien [para. 23], and details of certain "inducements" and "threats" allegedly made by the Deel defendants to Mr O'Brien to encourage him to comply with their instructions [para. 24]. It is alleged that, as a result of these instructions, inducements and threats "and as a result of and in furtherance of the Scheme", Mr O'Brien made a false statement to the Central Bank of Ireland ('the CBI') purporting to be a "protected disclosure", regarding certain purported activities of the plaintiffs [paragraph 26].

9. At para. 27 it is pleaded that the statement made by Mr O'Brien to the CBI meant: -

"(a) That there were reasonable grounds for believing that the Plaintiffs had committed a "relevant wrongdoing" within the meaning of the Protected Disclosures Act, 2014 (as amended).

(b) That the Plaintiffs were facilitating or causing payments to be made to a country on the sanctions list.

(c) That the Plaintiffs were telling employees to make payments to sanctioned countries.

(d) That the Plaintiffs were making sanctioned payments to sanctioned countries.

(e)?That when employees of the Plaintiffs raise concerns about the making of payments to Russia they are told that they should keep quiet about their concerns.

(f) That the Plaintiffs penalised whistle-blowers."

10. At para. 28 of the ASOC it is pleaded that the Deel defendants were liable for the making of the said statements to the CBI, and that those statements "were made by Mr O'Brien and the Deel Defendants falsely, maliciously and in the knowledge that they were untrue".

11. Paragraph 30 of the ASOC is as follows: -

"The Plaintiffs rely upon the Deel Defendant's statement to Mr O'Brien that he should promote a false narrative based upon the proposition that the proceedings were connected to sanctioned or illegal payments to Russia as a separate publication by the Deel Defendants to Mr O'Brien that bore the meanings identified at para. 27 (b) (c) and (d) above."

Deel's position

12. On behalf of Deel, Mr Joe Jeffers SC submitted that the meaning of para. 30 is clear: that the Deel defendants conveyed to Mr O'Brien that the narrative he was to promote was false, so that Mr O'Brien understood that the statement he would make to the Central Bank, in so far as it contained the meanings at paras. 27(b)(c) and (d) of the ASOC, was false.

13. In those circumstances, Deel submits that any publication by the Deel defendants to Mr. O'Brien of the "false narrative" referred to in para. 30 could not have been defamatory. Section 2 of the Defamation Act 2009 provides that a defamatory statement is "a statement that tends to injure a person's reputation in the eyes of reasonable members of society". Deel submits that, if the plaintiffs contend that Mr O'Brien was made aware that the statements he was allegedly prevailed upon to make to the CBI were false, it cannot be the case that the "false narrative" could injure the plaintiffs' reputation in the manner envisaged in s.2.

14. The following analogy emerged during the course of counsel's submissions: if journalist A directs journalist B to write a false story that a particular politician accepted bribes, and journalist B knew that to be untrue as a matter of fact, the publication of the allegation by A to B would still be defamatory; but if A makes it clear to B that it is a false narrative, effectively promoting a conspiracy to damage the politician's reputation, A's statement cannot be defamatory as it could not injure the politician's reputation in B's eyes; it is, as Deel characterises it, "a statement by one alleged co-conspirator to a fellow alleged co-conspirator" [para. 5.6 written submissions].

The plaintiffs' position

15. I did not understand the plaintiffs to demur from this analysis by Deel. However, a number of points were advanced in response to Deel's position.

16. Firstly, counsel referred to para. 30 of Deel's defence, which is as follows:

"30. ?As regards paragraph 30 of the Amended Statement of Claim,

(i) The Plaintiffs' reliance upon the alleged publication of an allegedly defamatory statement by Deel to Mr O'Brien is, in the circumstances alleged by the Plaintiffs, misconceived. Deel reserves the entitlement to seek to have same struck out.

(ii) Without prejudice to the foregoing, if Deel made the alleged publication to Mr O'Brien, as alleged, it is denied that the same injured the plaintiffs' reputation in the eyes of Mr O'Brien."

17. Counsel for the plaintiffs, Mr Eoin McCullough SC, submitted that the central issue in Deel's present application was whether or not what Deel allegedly published to Mr O'Brien was capable of having a defamatory meaning. However, the defence did not plead that Deel's publication to Mr O'Brien was not defamatory; the matter central to Deel's application was not an issue on the pleadings.

18. Secondly, counsel submitted that para. 30 of the defence lacked clarity as to exactly what case was being made. As counsel neatly put it:

"... it's not entirely clear there whether it is alleged that the Deel Defendants said to Mr O'Brien that the narrative was false or whether it is being alleged that the narrative that Mr O'Brien was told to promote is one that is, in fact, false..." [Day 3 page 22 lines 6 to 11]

19. Counsel referred to the decision of the High Court (Murphy J) in Conlon v Times Newspapers Limited [1995] 2 ILRM 76 in relation to the test to be applied by the court in dealing with an application to strike out a plaintiffs' defamation action on the grounds that it disclosed no reasonable cause of action or that it was clearly unsustainable and bound to fail. Murphy J stated as follows: -

"I would accept the comments in the subsequent judgments that at this stage an appropriate test is not the 'capability' of the words bearing a particular meaning, but the 'arguability' as to whether or not the words are capable of a meaning. To my mind at this stage this is a question of whether the action is clearly unsustainable. Whether the words are capable of bearing a particular meaning will be determined at the trial of the action by the trial judge. At this stage it is sufficient if the plaintiff can show that there is at least an argument that the words are capable of the meaning for which he contends." [Page 80].

20. Counsel contended that Deel would have to show that it was unarguable that the published words or statement were capable of bearing a defamatory meaning. It is submitted that, in circumstances where it was not clear from para. 30 of the defence whether it is alleged that Mr O'Brien was told by the Deel defendants that the "narrative" was "false", or whether it is merely being alleged that the narrative that Mr O'Brien was told to promote was in fact false, it could not be said that it was "unarguable" that the published narrative was defamatory.

21. Counsel submitted that whether para. 30 of the ASOC conveys that Mr O'Brien was told by the Deel defendants that the "narrative" was false was "open to interpretation".

22. Counsel also submitted that evidence in relation to the matter would be heard at trial, and an application could be made then by the defendants to the trial judge for an order that the words were not capable of bearing a defamatory meaning. Such an application "could obviously be made at the end of the plaintiff's case, if it arises on the facts" [transcript day 3 page 24 lines 8 to 10].

Discussion

23. I accept in principle Deel's submission that, if it is alleged that Mr O'Brien was told by the Deel defendants that the narrative which they allegedly urged him to promote was false, the publication to him of the "false narrative" that "bore the meanings identified at para. 27 (b) (c) and (d) [of the ASOC]" was not defamatory. This is because, on the occasion of publication, the Deel defendants were not communicating to Mr O'Brien anything defamatory about the plaintiffs; they were simply communicating to him a "false narrative" which they wanted him to pass on to the CBI.

24. I also accept that the test by which Deel's application must be determined is whether or not it is arguable that the narrative to which para. 30 of the statement of claim refers was defamatory. Deel accepts that, for this purpose, the court must take the plaintiffs' case at its height and assume, for the purposes of the present application, that every fact pleaded in the ASOC will be proven at trial.

25. My initial impression of para. 30 of the ASOC was that it was implicit in the wording of the paragraph that it was alleged that Mr O'Brien was apprised by the Deel defendants that the narrative which they wished him to communicate to the CBI was false ("... the Deel Defendants statement to Mr O'Brien that he should promote a false narrative..."). Indeed, that interpretation is strongly reinforced by the section of the ASOC (paras. 19 to 31) entitled "Particulars of the Deel Defendant's conduct in pursuance of the Scheme (including particulars of defamatory statements made in connection with the Scheme) - 14 March 2025 to 19 March 2025", in which the plaintiffs' contentions regarding the alleged conspiracy between the Deel defendants and Mr O'Brien are set out in detail.

26. I find it difficult to accept Mr McCullough's submission that the wording of the paragraph is open to the interpretation that it conveys that the narrative was in fact false, but not necessarily that its falsity was communicated to Mr O'Brien by the Deel defendants. However, it does seem to me that, taking the wording of para. 30 of the ASOC on its own, it cannot be said that this interpretation is unarguable.

27. Deel's application is brought "pursuant O.19, rr. 27 and 28 of the Rules of the Superior Courts ... and/or pursuant to the inherent jurisdiction of this honourable Court...". A new version of O.19 rr. 27 and 28 was introduced by Rules of the Superior Courts (Order 19) 2023 (SI 456/2023). It is as follows:

"27. The Court may at any stage of the proceedings ordered to be struck out or amended any matter in any indorsement of pleading which is unnecessary which amounts to an abuse of the process of the Court, or which may unreasonably prejudice or delay the fair trial of the action; and may in any such case, if it thinks fit, order the costs of the application to be paid as between solicitor and client.

28.?????? (1) The Court may, on an application by motion on notice, strike out ???????????????????? any claim or part of a claim which:

??????????????????????? (i) ?????? discloses no reasonable cause of action, or

??????????????????????? (ii) ????? amounts to an abuse of process of the Court, or

(iii)?????? is bound to fail or

(iv) has no reasonable chance of succeeding.

(2) The Court may, on an application by motion on notice, strike out ???????? any defence or part of the defence which:

(i)???????? discloses no reasonable defence to the action, or

(ii)??????? amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

(3) The Court may, in considering an application under sub-rule (1) or (2) have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

(4) Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly.

(5) Where the Court makes an order under sub-rule (2), it may make an order giving judgment in such terms as it considers just, and may make an order providing for the costs of the application and the proceedings accordingly.

28. As Simons J put in O'Malley v National Standards Authority of Ireland [2024] IEHC 500, the amendment of O.19, r.28 "has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Court, and (ii) the court's inherent jurisdiction". [para 7]

29. Order 19, r.27 does not seem to me to be the appropriate rule in the present circumstances. Deel's application, it seems to me, is properly brought under O.19, r.28(1); Deel effectively argues that para. 30 of the ASOC represents "part of a claim" which either discloses no reasonable cause of action, is bound to fail or has no reasonable chance of succeeding, and should therefore be struck out.

30. The plaintiffs argued that, while Deel argues that para. 30 of the ASOC does not disclose a defamatory meaning, it has not raised the issue of "meaning" in its defence. While it is true that there is no express plea in this regard, para. 30 of Deel's defence does contend that the plaintiffs' "reliance upon the alleged publication of an alleged defamatory statement by Deel to Mr O'Brien is, in the circumstances alleged by the Plaintiffs, misconceived. Deel reserves the entitlement to seek to have same struck out". While somewhat oblique, this sub-paragraph did nonetheless convey Deel's concern about para. 30 of the statement of claim, and the possibility of bringing the present application.

31. Order 19 r.28(3) refers to the court being entitled, in considering an application such as the present one, to have regard to the pleadings "and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application". The court is not obliged to take only the wording of the impugned paragraph, shorn of context, into account.

32. Mr Jeffers did not refer in his submissions to any such affidavit. He did however refer to Mr O'Brien's affidavit sworn on 1 April 2025 in support of the application by the plaintiffs to join the Deel defendants to the proceedings, and in particular para. 34 of that affidavit, which is as follows:

"34. Deel's lawyer Asif said that Deel's strategy to help me required that I make statements that Rippling facilitated sanctioned 'Russian payments', and that 'there's going to be a shift in the narrative'. He specifically advised me on making such statements to the Central Bank of Ireland, the High Court, and Deel's Irish solicitors A&L Goodbody that I was being harassed because I was reporting illegal 'Russian payments'. I knew this was false. I have never made any such reports to anyone at Rippling, nor outside of Rippling, prior to Asif's instruction and I have no knowledge of any sanctioned payments made by Rippling. I went along with the plan initially, it seemed like a way out of the situation".

33. Counsel also made reference to a number of submissions to the court made by Marcus Dowling SC for the plaintiffs in the course of the hearing of the applications by the individual Deel defendants contesting their joinder and the jurisdiction of the Irish courts. That hearing was held together with the present application, and immediately before it. Mr Jeffers referred to the transcript in which Mr Dowling had made a number of references to the plaintiffs' position that the individual Deel defendants had told Mr O'Brien to 'lie to their own lawyers...' 'lie to a regulator'..., 'lie to their solicitors about something about which the person knows nothing'..., '... instructing Mr O'Brien to lie to A&L Goodbody, instructing Mr O'Brien to lie to the Central Bank, instructing Mr O'Brien to lie to the court... " [Day 3, pp. 57 to 59].

34. While Mr O'Brien's affidavit in support of the joinder application was not filed "in support of, or in opposition to..." the present application, I consider that his averment at para.34 of that affidavit is highly relevant to the issue I have to decide. While the affidavit may not come within the letter of O.19, r.28(3), I do not consider that rule to be exclusionary, so that no affidavit other than one filed in respect of the application at hand may be considered by the court. Not to have taken such matters into account, notwithstanding that O.19, r.28 does not expressly permit the court to do so, would in my view have been perverse and unjust.

35. One must be wary when considering affidavits sworn in support of a party's position in another application; there is a danger of not appreciating the context in which an averment was made. Having said that, Mr O'Brien's averment in para. 34 of his affidavit supporting the joinder application could not be clearer. He has sworn on affidavit that he was "specifically advised" by the fifth named defendant on making statements to the CBI, the High Court and A&L Goodbody "that I was being harassed because I was reporting illegal 'Russian payments'. I knew this was false...". As the statements which he was allegedly urged to make related to his own conduct, it is clear that Mr O'Brien's position is that he knew, not only that the statements were untrue, but that the fifth named defendant to whom he refers ("Asif") also knew them to be untrue and had come up with the statements as part of the "strategy to help [Mr O'Brien]...".

36. I hasten to say that all of the allegations by the plaintiffs are strenuously denied by the defendants and no doubt will be hotly contested at trial. However, Mr O'Brien's averment and the submissions made by counsel in the course of an application at the same sitting as, and immediately preceding, the present application in my view make it clear that para. 30 conveys that the plaintiffs' position is that Mr O'Brien was told to promote a false narrative which both he and the individual Deel defendants knew to be false.

37. In essence, the plaintiffs' position as set out in para. 30 of the ASOC is that Mr O'Brien and the individual Deel defendants were co-conspirators, colluding to enable Mr O'Brien to proffer false statements to the CBI, the court and A&L Goodbody. As that is the case, the false narrative published to Mr O'Brien by the Deel defendants cannot be defamatory, as the plaintiffs' reputation could not have been injured in these circumstances "in the eyes of reasonable members of society" where the only recipient of the publication was Mr O'Brien who, on the plaintiffs' case, was an active party to the conspiracy.

Conclusion

38. For the reasons set out above, I consider that Deel's application is well-founded. I will accordingly make an order striking out para. 30 from the ASOC. The order will be made pursuant to O.19, r.28(1) (iii) and (iv). The deletion of para. 30 of the ASOC removes only the claim in defamation in respect of the alleged publication of defamatory statements by the Deel defendants to Mr O'Brien. It does not affect any other claim of defamation which the plaintiffs may pursue in the proceedings.

Paragraph 54

39. The plaintiffs plead at paras. 53 to 57 of the ASOC as follows:

"53. ?In response Mr O'Brien's affidavit and agreement to cooperate, the Deel Defendants modified their approach. Consistent with their stated goal to 'shift the narrative' to a false one, the Deel Defendants began to allege that Mr O'Brien had agreed to cooperate under duress and repeated the false narrative that the Plaintiffs' claims against Mr O'Brien had been manufactured.

54.? The Deel Defendants made these statements knowing full well that Mr O'Brien was represented by Fenecas solicitors recommended to Mr O'Brien by Deel's own solicitors, A&L Goodbody and in doing so evinced a reckless disregard and contempt for the truth and the professional reputations of the persons involved.

1. ?In furtherance of the Scheme, on 9 April 2025, Deel published the following statement to Bloomberg, which was defamatory of the Plaintiffs:

'It is clear from Rippling's years-long history of coordinated legal, political and PR smear campaigns, that their business approach is driven by litigation vs strategy. Deel looks forward to its day in Court, at which time the allegations made by Rippling and O'Brien will be shown to be baseless. Vanessa Wu's affidavit is telling about this case, as it illuminates that Keith O'Brien's so-called testimony is paid for by Rippling. In the meantime, our focus remains on building the best company and serving our customers, which is demonstrated by our continued growth, momentum and profitability.'

1. In their natural and ordinary meaning, the said statement meant and was understood to mean:

(a) That the Plaintiffs were falsely alleging that Mr O'Brien had ???????????????? ??????provided information to Deel.

(b) That the Plaintiffs had manufactured claims against Mr O'Brien and Deel.

(c) That the Plaintiffs had induced the High Court to make the Order on a false and manufactured basis.

(d) That the Plaintiffs had paid Mr O'Brien for false testimony.

1. The said statement was made by Deel falsely, maliciously and in the knowledge that it was false."

40.?In its notice of motion, Deel sought the striking out, not just of para.54 of the ASOC, but also paras. 55 to 57. During the hearing of the present application, the parties agreed that para.55 would be amended to refer to the date of publication of the statements referred to in para. 54 as 04 April rather than 09 April, and the court made an order with consequential directions in this regard [Day 4, pp. 4 to 5].

41. Full and detailed denials of liability are pleaded by Deel in its defence in relation to paras. 53, 55, 56 and 57. At para. 54 of the defence, the fourth defendant pleads as follows: -

?"54. ?As regards paragraph 54 of the Amended Statement of Claim,

(i) Deel objects to the reference in this paragraph to 'these statements' which statements are not identified by the Plaintiffs; and which the Plaintiffs declined to identify in their replies to particulars. Deel reserves the right to amend its defence when the plea is explained by the Plaintiffs/the particulars are provided.

(ii) It is denied that Fenecas, solicitors were recommended to Mr O'Brien by Deel's own solicitors, A&L Goodbody.

(iii) It is denied that Deel has evinced a reckless disregard and contempt for the truth and the professional reputations of the persons involved.

(iv) The allegation and/or claim advanced at paragraph 54 of the Amended Statement of Claim is in the nature of a jus tertii and the Plaintiffs have no standing to bring or advance such a claim. Deel reserves the right to apply to have the plea struck out."

42. At paras. 35 and 36 of the plaintiffs' Reply to Deel's defence, the plaintiffs plead as follows: -

"35. ?By way of special reply to paragraph 54(i) of the Defence, the statements referred to are clear from the Plaintiffs' claim and there is no basis in fact and/or in law for Deel to need to amend its Defence or to have this plea further explained or further particulars to be provided.

1. ?By way of special reply to paragraph 54(iv) of the Defence, it is denied that the allegation and/or claim advanced at paragraph 54 of the Amended Statement of Claim is in the nature of a ' ius tertii' [sic] and it is denied that the Plaintiffs do not have standing to advance or bring such a claim. It is denied that Deel has any right to have this plea whether as alleged or at all."

43. Particulars were raised by Deel on the ASOC; the plaintiffs replied by stating that the allegation "has been properly particularised and refers to statements by Deel, including in legal pleadings... ". In their written submissions, Deel contended that, notwithstanding what it regarded as the unsatisfactory reply to particulars, it was "tolerably clear" that the plaintiffs were " saying that, by allegedly promoting a 'false narrative' that [Rippling's] claims against Mr O'Brien had been manufactured " [emphasis in original] and suggesting that Mr O'Brien's cooperation agreement procured " under duress ", Deel thereby damaged " the professional reputations " of Fenecas and A&L Goodbody.? [paragraph 5.20 Deel's written submissions].

44. Deel submits that the matter set out at para. 54 of the amended statement of claim are "patently a jus tertii " in which the plaintiffs seek to "invoke and rely on the professional reputations of A&L Goodbody Solicitors and Fenecas Law, who are unquestionably not parties to this action" [Day 2 p. 99 lines 18 to 21).

45. The Court remarked at the hearing that para. 54 may not have been intended to ground a claim for relief, but rather that it was intended as a "sideswipe" at the defendants; that, in addition to defaming the plaintiffs by the statement to Bloomberg, they were also defaming two firms of solicitors. Counsel for Deel suggested that, if this were the case, the "sideswipe" should be struck out pursuant to O.19, r.27 as "unnecessary" or that it "may tend to prejudice the fair trial of the action" [Day 2 p.100].

46. In response, counsel for the plaintiffs confirmed that the statements to which para. 54 refers were not intended to ground a claim by the plaintiffs for relief, but that para. 54 represented "material that is relevant and admissible and even central in the case" [Day 3, p.31 lines 17 to 24].

47. It was submitted that O.19, rr. 27 and 28 did not preclude the pleading of material that is relevant or central to the plaintiffs' case, and that "unnecessary" has to encompass "material that is essentially irrelevant or goes unreasonably beyond the core of the case or is prolix" [Day 3 p.33 lines 7 to 14).

48. Deel relies on the general principle in relation to pleadings set out at O.19 r.3 that

"every pleading shall contain, and contain only, a statement in summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively...".

49. While a strict reading of this rule might support the proposition that a statement of claim must eschew anything that is not a "material fact" subtending a claim for relief, and must not include the evidence by which such facts are to be proved, it has not in my experience been the practice of the Commercial Court to apply the rule so rigidly. Indeed, applications such as the present are relatively rare, as the court has generally encouraged proactive and informative pleadings which allow the opposing party to understand the case being made. It is in no one's interest that a bare statement of claim be delivered setting out the bones of the plaintiffs' claim only, devoid of all context, inevitably precipitating a lengthy exchange of requests for particulars and replies thereto, without which the statement of claim cannot be understood.

50. It is a question of degree in each case as to the extent to which pleading of matters which could be said to fall outside of O.19, r.3 may be permissible. In the present case, para. 54 comes within a section of the statement of claim from paras. 53 to 59 under the heading "particulars of the Deel Defendants' conduct in pursuance of the Scheme (including particulars of defamatory statements made in connection with the Scheme) - the Deel Defendants respond to Mr O'Brien's agreement to cooperate".

51. The plaintiffs contend that the matters in para. 54, while not grounding a cause of action by the plaintiffs, are part of the course of events in the alleged conspiracy on the part of the Deel defendants - referred to at para. 17 of the ASOC and thereafter as "the Scheme" - which is their central complaint in the proceedings. Essentially, the plaintiffs contend that para. 54 is part of the context of their allegations, is relevant to them and cannot be described as "unnecessary".

52. It may be the case that para. 54 is "unnecessary" in that it could be removed from the statement of claim without doing damage to the plaintiffs' case. However, it is not "unnecessary" in the sense of being gratuitous or irrelevant to the other allegations in the ASOC. It is likely that the matters in para. 54 would be the subject of examination and cross-examination when the matter comes to trial, and any objection to the relevance of those matters can be made by way of application to the trial judge.

53. In all the circumstances, I consider that para. 54 of the ASOC should not be struck out. It is part of the context of the plaintiffs' claim and cannot be said to be irrelevant to the allegations of conspiracy and defamation on which the plaintiffs rely to ground their claim. In particular, it provides background to the allegations at paras. 55 to 57, which the fourth named defendant applied to strike out in the present motion, but now no longer seeks to do so.

54. In fairness to Deel, it is clear from the correspondence preceding this application and the affidavits and written submissions in support of it that the main reason originally for the application to strike out para. 54 was the jus tertii argument. The plaintiffs have now readily acknowledged that the matters at para. 54 are not intended to support a claim of defamation of the plaintiffs, nor do they seek damages for any alleged defamation of the two firms of solicitors.

Paragraph 67

55. The third paragraph which Deel submits should be deleted from the ASOC is para.67. That paragraph comes within a section of the ASOC entitled "Reliefs Sought", and it is worth quoting the entire section for context:

"62. The plaintiffs reserve the right to furnish particulars following discovery and/or in advance of the trial of the action.

1. ?The Deel Defendant's conduct as pleaded here in constituted the tort of abuse of civil process and/or intentional interference with the administration of justice. The Plaintiffs expressly plead that a conspiracy to breach court orders and/or to create and use misleading documents and/or to cause to be made untrue statements for the purpose of 'changing the narrative' constitutes unlawful means.

64.? The Deel Defendant's conduct amounted to unlawful interference with the economic interests of the Plaintiffs.

1. ?As a result of the acts and/or omissions of the Deel Defendants, their servants or agents, and as a result of the deliberate and malicious conduct of the Deel Defendants, the Plaintiffs have suffered loss, damage, inconvenience and expense.

2. ?The Plaintiffs' loss, damage, inconvenience and expense is continuing and/or not yet capable of full particularisation and full particulars of loss will be furnished in advance of the trial of the action.

3. ?The Plaintiffs expressly plead that the Deel Defendants should, in light of their conduct as particularised above, be made liable for all the costs of the within proceedings on a legal and practitioner basis.

68.? As against the Deel Defendants, the Plaintiffs claim aggravated damages, exemplary damages and punitive damages in accordance with section 32 of the Defamation Act, 2009. Exceptionally and in the particular circumstances of this case, the Plaintiffs rely upon all of the particulars of the Scheme and Defamatory Statements pleaded above as a basis for an award of aggravated, exemplary and punitive damages. The conduct of the Deel Defendants as particularised above is egregious.

56. Deel sought particulars in relation to para. 67, and in particular sought "detailed particulars of the costs which the Plaintiffs allege Deel should be made liable for...". The plaintiffs replied by letter of 14 July 20 that "... the Plaintiffs' costs in respect of the proceedings are ongoing. As at 30 June 2025, the Plaintiffs' legal costs were approximately ?4,360,442.75. A more detailed itemisation will follow in due course".

57. The plaintiffs went on to comment in relation to para. 67 that "... [We] confirm that the reference to 'legal and practitioner basis' was a typo and it should, of course have stated 'legal practitioner and client basis'". This statement was made subsequent to delivery of the defence of Deel, which at para. 67 addressed para. 67 of the ASOC as follows:-

"67. ?As regards paragraph 67 of the Amended Statement of Claim,

(i) The plaintiffs claim that ' the Deel defendants should, in light of their conduct as particularised above, be made liable for all of the costs of the within proceedings on a legal and practitioner basis ' is a plea not known to the law. Deel reserves its entitlement to seek to have same struck out.

(ii) Insofar as the Plaintiffs mean that they seek to make Deel liable for the costs of the proceedings which they have settled with Mr O'Brien before 2 April 2025 same is misconceived in law. Deel reserves its entitlement to seek to have same struck out.

(iii) Further, having settled with Mr O'Brien, the Plaintiffs, and the facts alleged by them, have compromised the costs of the

proceedings up to 2 April 2025 and are not entitled to seek same from Deel.

(iv) The Plaintiffs are not entitled to costs on a legal and practitioner basis (which is not a basis of costs known to the law)."

58. The plaintiffs addressed these pleas in their Reply to defence on 14 July 2025:-

"44. ?By way of special reply to para. 67 (i) of the Defence, it is denied that the plea referred to therein is not a plea known to law and/or that Deel is entitled to have same struck out. Without prejudice to the foregoing, the Plaintiffs reserve their right to seek their costs on a full indemnity basis for the reasons pleaded at paragraph 67 of the Amended Statement of Claim."

59. Deel accepts that seeking costs on a legal practitioner and client basis is specifically permitted by O.99, r.10(3) of the Rules of the Superior Courts, and that the plaintiffs have in fact sought costs on this basis at para.12 of the concluding section of the amended statement of claim setting out the orders sought. Deel accepts that an order for costs on this basis is also sought in the amended plenary summons.

60. However, Deel does not accept that it could be made liable for all of the costs of the proceedings, including costs incurred before Deel was joined to the proceedings, particularly in circumstances where the plaintiffs have compromised their claims against Mr O'Brien. That such costs are being sought is made clear by the comments of Jennifer Nagarajan, Associate General Counsel of the first named plaintiff, in an affidavit sworn in response to the present application. At para. 40 of her affidavit of 29 September 2025, Ms Nagarajan avers as follows:

"40. At paragraph 67 of the Amended Statement of Claim the Plaintiffs plead that the Deel Defendants should, in light of their conduct as particularised above, be made liable for all of the costs of the within proceedings on a legal practitioner and client basis. This includes the costs prior to the order joining the Deel Defendants which was made on 2 April 2025 and the costs incurred by Rippling thereafter."

61. At paragraph 43 of her affidavit, Ms Nagarajan avers as follows: -

"43. ?At paragraph 53 of the Grounding Affidavit, it is averred that "... insofar as the costs of the proceedings prior to 2 April 2025 (the date of the Joined Order) are concerned, I do not understand how the Plaintiffs could be entitled to seek these costs as against Deel where, on their own admission, they have already compromised any such claim for costs with Mr O'Brien. Again, however, I intend to leave over substantive legal submission to the hearing of the within application'. The Plaintiffs have not in fact compromised the claim for costs. The Plaintiffs seek the costs of the proceedings prior to 2 April 2025 (the date of the Joined Order) as an item of special damage, as the existence and continuation of the proceedings was and is due to the serious wrongdoing of the Deel Defendants."

62. Deel submits that it is clear that, in seeking the costs of the proceedings prior to 2 April 2025, the plaintiffs are not in fact seeking costs in the usual way, but are claiming the costs as special damages, which counsel contended was "an attempt to rewrite the amended statement of claim". Deel says that the plaintiffs are precluded as a matter of law from making this claim. They say that, under the Cooperation Agreement - as para. 50 of the ASOC describes it - the plaintiffs, inter alia, "waived, surrendered and released all claims that they might have against Mr O'Brien on foot of a representation that a summary account of his dealings with the Deel defendants was true". Deel contends that, having settled with Mr O'Brien, the plaintiffs are precluded by the operation of s.17(2) of the Civil Liability Act 1961 as amended ('the CLA') from pursuing any concurrent wrongdoers in respect of claims which were the subject of a settlement.

63. Section 17(1) provides that the release of, or accord with, one concurrent wrongdoer "shall discharge the others if such release or accord indicates an intention that the others are to be discharged". Section 17 (2) is as follows: -

"(2) ?If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with paragraph (h) of subsection (1) of section 35; and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer for whom the release or accord was made would have been liable to contribute if the plaintiffs' total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest. [Emphasis in original].

64. Essentially, Deel argues that, if the plaintiffs' claim against Mr O'Brien in respect of costs was compromised by the Cooperation Agreement of 27 March 2025, the plaintiffs' claim against other wrongdoers must be reduced by the value of that compromise. Any claim against Mr O'Brien that has been settled cannot be pursued against Deel.

65. Deel submits that, in the circumstances, the plea at para. 67 is one that cannot succeed and is bound to fail. As counsel for Deel puts it "... this is a clear case of a plea that can't succeed and one which can be determined by reference solely to the legal principles. It may be a subtle legal point, but ultimately I say that on no view could the Plaintiffs ever recover the costs of the proceedings prior to the point in time where we were joined on 2nd April in circumstances where they have undoubtedly settled that claim for costs with Mr O'Brien. That's it in a nutshell...". [Day 2, p.127 lines 1 to 9).

Discussion

66. This Court is being asked to strike out para. 67 of the ASOC in limine. Deel effectively contends for a legal interpretation of s.17 (2) of the CLA which, if correct, would mean that the plaintiffs' claim as against the Deel defendants for the costs of the action prior to the joinder of those defendants must fail.

67. While the court has jurisdiction to entertain an application under O.19, rr.27 and 28 where the moving party relies on an issue of law to demonstrate the criteria required by those rules, such an application may not be appropriate. As Clarke CJ said in Jeffrey v Minister for Justice, Equality & Defence [2019] IESC 27 at para. 7.4:

"It is now well settled that, in the context of a summary judgment motion in which a plaintiff seeks judgment in summary proceedings, a court can resolve straightforward issues of law or the interpretation of documents, where there is no real risk that attempting to resolve those issues within the limited confines of a summary judgment motion might lead to an injustice. By analogy, I would not rule out the possibility, without so deciding, that it may be possible to resolve a simple and straightforward issue of law within the confines of a Barry v Buckley application. However, even if that should be possible, it could only be appropriate where the issue was very straightforward and where there was no risk of injustice by adopting that course of action... a Barry v Buckley application cannot be used to dismiss a case simply because it might be said that there is a strong defence. Rather, such applications can only be used in cases where it is clear that the claim is bound to fail...".

68. These dicta were quoted with approval by Simons J in O'Malley v National Standards Authority of Ireland [2024] IEHC 500, and very recently by Kennedy J in St Brigid's RFC v St Laurence O'Toole Diocesan Trust [2026] IEHC 103. I also accept that the issue of law must be "very straightforward" and that there be "no risk of injustice" in striking out the claim or part of a claim in limine.

69. At para. 65 of its defence, Deel pleads as follows: -

"65. ?As regards paragraph 65 of the Amended Statement of Claim,

(i) It is denied that the Plaintiffs have suffered loss, damage, inconvenience and expense.

(ii) If the Plaintiffs have suffered loss, damage, inconvenience or expense, it is denied that same is as a result of the acts and/or omissions of Deel, their are servants or agents.

(iii) Further and/or in the alternative, in the event that the Plaintiffs have suffered any loss, damage, inconvenience and/or expense as alleged (which is denied) all claims by the Plaintiffs for compensation and/or other relief(s) on foot of any such alleged loss, damage, inconvenience and/or expense have been fully compromised by the Plaintiffs.

(iv)?Deel will rely upon the provisions of ss. 17, 34 and 35(1)(h) Civil Liability Act 1961 (as amended) to say that the plaintiffs are guilty of contributory negligence and that, for the purposes of determining such contributory negligence, the plaintiffs should be identified with and/or be deemed responsible to the acts of Mr O'Brien.

(v) The alleged deliberate and malicious conduct of Deel is denied."

70. At para. 65(iv) Deel specifically relies on a plea of contributory negligence on the part of the plaintiffs and in particular the provisions of s.35(1)(h) of the CLA, which provides that, "for the purpose of determining contributory negligence... "

"(h) ?where the plaintiff's damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord with him made by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged;...

71. Section 34 (1) however deals with the question of apportionment of liability in cases of contributory negligence, and provides inter alia that

'34(1) Where, in any action brought by any one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for those acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant...'"

72. Counsel for the plaintiffs contended that the CLA would require the court to assess degrees of blameworthiness between Mr O'Brien and the Deel defendants as concurrent wrongdoers in accordance with s.34 (1) of that Act, and that the question of what is "just and equitable" within the meaning of that subsection is entirely dependent on the court's analysis of the facts. As counsel put it, "... It might well be the case that the courts would take the view that there should be no contribution from Mr O'Brien to the Deel Defendants, precisely because the entire thing was their fault... Why is it just and equitable that he then has to indemnify Deel in respect of the costs incurred by him because he was sued by my client on the basis of their unlawful actions?" [Day 3, p.46 lines 8 to 18].

73. It seems to me that the applicability of s.17(2) and s.35(1)(h) of the CLA to the unusual circumstances of the present case cannot be said to be "very straightforward". One might ruefully remark that resolution of issues arising from the somewhat complex and arcane provisions of the CLA is rarely straightforward. It may transpire that the construction of the sections of the trial judge depends to some degree on their view of the facts of the case, which are wholly disputed on the face of the pleadings and remain to be determined.

74. The issue of the liability of Deel for the costs of the proceedings prior to 2 April 2025 may not arise at all. If it does, it will no doubt require detailed legal submissions to the trial judge. However, I could not conclude at this stage that there would be "no risk of injustice" were I to strike out para.67 at this juncture.

75. I would add finally that, while I do consider that a court should have power to strike out all or part of the claim where an error of law makes it clear that the claim is bound to fail, such applications should be limited to the clearest of cases, in which the error of law is patent, unarguable, and fatally undermines the claim impugned.

Overall Conclusion

76. For the reasons set out above, I shall strike out para 30 of the ASOC. I decline however the invitation of Deel to strike out paras 54 or 67.

77. I will list the matter for hearing at 10.30am on Wednesday April 15 th along with the "joinder motion" and the "inspection motion" so that the court can be addressed as to the terms of the orders required for all three motions, including any order as to costs.

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