Discovery Overview
Cases
Brooks Thomas Ltd. v. Impac Ltd.
[1998] IESC 18; [1999] 1 ILRM 171 Lynch J
CONCLUSIONS
- Discovery may be obtained of any document relating to any matter in question in the action. 0rder 31, Rule 12(1). In this connection the meaning of “relating to” has been enlarged to include any document “containing information which may – not which must – either directly or indirectly enable
(14)
the party requiring the discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of enquiry which may have either of those two consequences.” Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882) 11 QBD 55 at 62 and 63. See also Halsbury (4th edition) Vol. 13 paragraph 38.
- The first question is whether or not these handbooks, guidebooks or standard reference works fall within the foregoing definition. It is clear that it is no answer for the appellants to point to any of these books and say that they followed what is laid down there. The issue is did the appellants or did they not do what they were obliged to do by the terms of their contract with the respondents. If they did not, then it can be no defence for them to say that they did AB and C as recommended in these books when AB and C do not discharge their obligations to the respondents. In these circumstances it is not surprising that the
(15)
appellants through their counsel have stated that they have no intention of relying in any way on these books at the trial on the basis that they are not relevant to the issues in this case. Secondly, it is not a valid point for the respondents to say that the appellants should have done AB and C because that appears in their own handbooks and that not having done AB or C they are therefore liable to the respondents. The respondents must establish that the appellants did things which they ought not to have done or omitted to do things which they were obliged to do by their contract/relationship with the respondents.
- Perhaps one could see a tenuous relevance in these books on the issue of negligence if the respondents could first show a failure by the appellants to carry out some aspect of their obligations under their contract and then also show that this failure involved a departure from their own systems as laid down in one or other of these handbooks on the basis that this would
- B. Richard Ellis -v- Dunne [2009] IEHC 251 (22 May 2009) Kelly J
Discovery
It is well settled both by reference to the precise terms of O. 31, r. 12 of the Rules of the Superior Courts and the substantial jurisprudence which has developed on foot of that rule that discovery will only be ordered in respect of documents which are (a) relevant to the issues in the proceedings and (b) are necessary in order to dispose fairly of the cause or matter or to save costs.
As to relevance, the court must be satisfied that the documents sought are relevant directly or indirectly to the matters in issue between the parties. Even though the documents may be considered relevant, discovery may still be refused if the court is of the view that they are not necessary in order to dispose fairly of the cause or matter or to save costs.
In considering whether documents are necessary for the fair disposal of an action, I must bear in mind observations made by members of the Supreme Court on this topic. In particular, I have regard to the observations of Fennelly J. in Ryanair Plc v. Aer Rianta CPT [2003] 4 IR 264 where he said:-
“The change made to O. 31, r. 12, in 1999, exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy.”
Fennelly J. went on to say that when exercising its discretion to grant discovery the court, in addition to having regard to the issues, should consider:-
“the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for fairness of the litigation.”
In Framus Limited v. C.R.H. Plc [2004] 2 IR 20, the topic was revisited by Murray J. where he said:-
“I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial.”
Bearing in mind the criteria prescribed by the rules of court and the jurisprudence which has developed on those rules, I now turn to consider the contest between the parties.
The Documents
In considering the areas of dispute between the parties, it is appropriate that I bear in mind the discovery which has been agreed to be given by the plaintiff to the defendant.
The first category of discovery sought encompassed:-
“All letters, notes, memoranda, research publications, reports, press releases and other documents (including documents in electronic form and including minutes of Board and other internal meetings) referencing the value of Hume House or Riverside IV arising within the period 1st January, 2005, to the commencement of these proceedings.” (These proceedings were commenced on the 24th November, 2008.)
The plaintiffs have agreed to provide discovery of those documents.
The second category of documents sought is as follows:-
“All letters, notes, memoranda and other documents (including documents in electronic form and including minutes of Board and other internal and inter-group meetings) evidencing communications between the plaintiff and its representatives of the one part to include all C.B. Richard Ellis company/affiliate/entities within the C.B. Richard Ellis Group Inc and Irish Life Assurance Plc, Irish Life Investment Managers, any other company connected with the foregoing entities and each of their respective servants or agents relating to Riverside IV Block A or Hume House (to include all telephone records, both mobile and landline, of the plaintiff, Sean O’Brien, Willie Dowling, Enda Luddy and Colm Luddy for the period from 1st January, 2006, to 1st April, 2006).”
The reason which the defendant gives for seeking this discovery arises from his contention that the plaintiff did not adequately advise him or keep him informed of all relevant matters in the transaction under negotiation with the Irish Life Group. He says:-
“In the context where representatives of the plaintiff have sworn affidavits indicating that they informed the defendant that he was notified of all communications, which is denied, the documentation sought will show that the plaintiffs representatives did not properly communicate all relevant information to the defendant, did not properly advise him and did not afford due loyalty to him. For this reason the documentation sought is relevant and necessary and will result in the saving of time and costs in the proceedings.”
In response to this request for discovery the plaintiff agreed to discover all documents relevant to its communications with Irish Life Assurance Plc, Irish Life Investment Managers and any other company connected with the foregoing entities relating to Riverside IV Block A or Hume House, from the 1st January, 2006, to the 1st April, 2006, notwithstanding the fact that they believed that that category was already encompassed by category 1, and indeed the later category 4. However, the plaintiff took the view that no other company in the CBRE Group was involved in the transaction in question in any way and, therefore, there was no reason to seek discovery from any other entity in the C.B.R.E. Group.
I agree with the plaintiff’s contention. I do not identify any legitimate basis upon which discovery should be expanded so as to encompass other entities within the group of companies to which the plaintiff belongs. Although no replying affidavit was filed counsel told me, and this was not controverted, that the plaintiff belongs to an international group involving very many companies. I do not see how they can be considered relevant to the issues in this case, nor could any documents in their possession be considered necessary to dispose fairly of this cause or matter. A discovery order of the type sought under this category would in my view be disproportionate and oppressive.
The third category of documents sought is described in the following terms:-
“All letters, notes, memoranda and other documents (including documents in electronic form and including minutes of Board and other internal meetings) evidencing invitations to treat, quotations, offers, invoices, payments and solicitations exchanged between the plaintiff and its representative of the one part to include all C.B. Richard Ellis company/affiliate/entities within the C.B. Richard Ellis Group Inc and Irish Life Assurance Plc, Irish Life Investment Managers, and any other company connected with the foregoing entities and each of their respective servants or agents of the other part resulting in the payment of monies for services rendered by the plaintiff and/or its representatives by the said Irish Life Group within the period 1st January, 2005, to the commencement of these proceedings (to include all telephone records, both mobile and landline, of the plaintiff, Seán O’Brien, Willie Dowling, Enda Luddy and Colm Luddy) for the period from 1st January, 2006, to 1st April, 2006.”
The reasons stated for requiring this category is given by the defendant’s solicitors as follows:-
“The defendant pleads that the plaintiff discussed or received a fee from the Irish Life Group directly or indirectly associated with the benefit accruing to the Irish Life Group from the sale of Hume House at the price agreed. In addition, the business relationship between the plaintiff and its representatives and the Irish Life Group is relevant to the duty of loyalty to the defendant and constitutes information that ought to have been given to the defendant in the context of rendering services to him in relation to the transaction the subject matter of these proceedings. The documentation sought will prove such discussions and/or payments and will disclose information regarding the business relationship between the plaintiff and the Irish Life Group that is relevant to the quality of the service rendered to the plaintiff and the trust and confidence the defendant might have afforded to the plaintiff had he been supplied with this information at the appropriate time. For this reason the documentation sought is relevant and necessary and will result in a saving of time and cost in the proceedings.”
The plaintiffs solicitors responded by characterising this request as a fishing exercise on the part of the defendant who they say has based his counterclaim on speculation rather than evidence. They say that that is illustrated by the defendant’s refusal to properly particularise his case. They also contend that the discovery sought is unnecessary, onerous and that no attempt had been made to delineate or focus the defendant’s request. They go on to point out that notwithstanding that and on the clear understanding that there is no basis whatsoever to the defendant’s allegation that the plaintiff received payment from Irish Life in relation to the transaction in suit, the plaintiff is nonetheless prepared to discover all documents evidencing payments received by the plaintiff from Irish Life in relation to the transaction. They point out, however, that there are no such documents.
On the exchange of pleadings which has occurred, I do not think that there could be any justification for expanding discovery so as to encompass every company/affiliate/entity within the C.B. Richard Ellis Group Inc and any company connected with them and their respective servants or agents. This is a claim for the payment of monies for services rendered by this plaintiff to this defendant. Other companies with which the plaintiff may be associated are not involved. Neither are they involved in respect of the defendant’s counterclaim. That counterclaim is brought only against the plaintiff and no other company or entity. The plaintiff is agreeable to make discovery of all documents evidencing payments received by it from Irish Life in relation to the transaction in suit. On the basis that the term “Irish Life” is understood in the meaning which is attributed to it at para. 6(I) of the defence and counterclaim, i.e. as encompassing Irish Life Assurance Plc and/or Irish Life Investment Managers and/or their connected persons and/or companies, I am satisfied that the discovery offered is adequate and sufficient and that I would not be justified in directing any wider or greater discovery.
The plaintiff has agreed to make discovery of the fourth category of documents sought. It consists of all letters, notes, memoranda and other documents (including documents in an electronic form) save as herein before categorised constituting the plaintiffs file in relation to the transaction the subject matter of these proceedings including any correspondence with the defendant, associated companies and employees for the period 1st January, 2005, to 31st December, 2005.
It is clear, therefore, discovery will be made of all documents in the plaintiffs file concerning the transaction the subject matter of these proceedings.
The fifth category of documents is in respect of all valuations and associated working papers created by the plaintiff in the context of sales, acquisitions and advices handled for or given to the defendant and/or the Mountbrook Homes Group by the plaintiff and/or its servants and/or agents within a period from 1st January, 2003, to 31st October, 2008.
The reason given for this extraordinarily wide category of documents being sought is stated to be as follows:-
“The plaintiff has denied that it valued Hume House at €130,000,000 as alleged by the defendant. The defendant requires the documentation in this category in order to prove the course of dealing between the plaintiff on the one hand and the defendant and companies in the Mountbrook Homes Group, with which he was associated, on the other. This will show that, as a matter of course, the defendant and the said group regularly sought and relied upon valuations in contexts such as this. A valuation of Hume House was prepared by the plaintiff and provided to the defendant in February, 2007 which accords with the valuation given in February, 2006: the documentation and working papers will help to establish the connection between the oral and the written valuation by reference to that course of dealing.”
The plaintiff contends that the defendant has not established the relevance of all valuations and working papers for all work carried out over a five year period. It points out that the defendant has complained in relation to this particular transaction and has not raised any issue in relation to any other valuation. Any valuations and associated working papers in relation to the transaction will, it is said, fall within the other categories of documents in respect of which discovery is being made and so will be disclosed by the plaintiff. However, valuations produced over the years in other cases have no relevance to what occurred in respect of this transaction or the other matters pleaded by the defendant.
In my view the plaintiff is perfectly correct in this approach. Discovery of the type sought here in my view goes outside the issues which the court will have to try, and in any event could not be regarded as necessary for the fair disposal of the action. It would be disproportionate to order it and would not be consonant with the proper administration of justice which encompasses, in the words of Fennelly J., the objectives of expedition and economy. Accordingly it is refused.
The sixth category of documents sought is as follows:-
“All letters, notes, memoranda and other documents (including documents in electronic form and including minutes of Board and other internal meetings) evidencing invitations to treat, quotations, offers, invoices, payments, inter-group charges and/or payments and solicitations exchanged between the plaintiff and its representatives of the one part and all C.B. Richard Ellis companies/affiliates/entities within the C.B. Richard Ellis Group Inc and each of their respective servants or agents of the other part resulting in the payment of monies or the effecting of inter-companies/group charges to/from the plaintiff and/or its representative within the period 1st January, 2005, to the commencement of these proceedings.”
The reason given for seeking these documents is stated as follows:-
“The defendant pleads that the plaintiff discussed or received a fee from the Irish Life Group directly or indirectly associated with the benefit accruing to the Irish Life Group from the sale of Hume House at the price agreed. In addition, the business relationship between the plaintiff and its representatives and the Irish Life Group is relevant to the duty of loyalty to the defendant and constitutes information that ought to have been given to the defendant in the context of rendering services to him in relation to the transaction the subject matter of these proceedings. The documentation sought will prove such discussions and/or payments and will disclose information regarding the business relationship between the plaintiff and the Irish Life Group that is relevant on the quality of the service rendered to the plaintiff and the trust and confidence the defendant might have afforded to the plaintiff had he been supplied with this information at the appropriate time. For this reason the documentation sought is relevant and necessary and will result in the saving of time and costs in the proceedings.”
The plaintiffs solicitors responded by refusing to make discovery of this category. They said:-
“The defendant (sic) does not consent to making discovery of the documentation sought in the sixth category. The reason which the plaintiff (sic) cites for this documentation does not coincide with the documentation sought. The defendant has failed to establish any relevance of this category of documentation to his claim. In the plaintiffs submission it amounts to little more than a fishing exercise by the defendant in circumstances where he is unable to or has failed to provide any particulars of his plea that the plaintiff discussed or received a fee from the Irish Life Group.”
It is clear that the sixth category in the way in which framed in the letter of request is well in excess of anything that might be required for the purpose of this litigation. During the hearing I was told that the defendant was prepared to limit it to material of the type described dealing with the plaintiff and all of the C.B. Richard Ellis company/affiliates/entities within the C.B. Richard Group Inc, and each of their respective servants or agents resulting in the payment of monies or the effecting of inter-company group charges to/from the plaintiff and/or its representatives and Irish Life and its affiliates within the period of 1st January, 2005, to the commencement of these proceedings.
Even with this limitation, I am of opinion that this request for discovery goes outside the issues which the court will be called upon to try and even if I am wrong in that, is unnecessary for the fair trial of these proceedings and would be disproportionate to what is in issue. Accordingly, I refuse discovery under this category.
The seventh category seeks discovery of all other letters/notes/memoranda and other documents (including documents in electronic form) intended to be relied upon by the plaintiff in the trial of the action.
Counsel on behalf of the plaintiff indicated that in accordance with the normal pre-trial procedures of the Commercial List, the plaintiff would be delivering a précis of the evidence which will be led by it at trial and that appended to that evidence will be all documents which the plaintiff will be relying upon during the course of the hearing. Such being the case I see no need to order discovery.
Conclusion
I am satisfied that having regard to the discovery which the plaintiff has agreed to make and which I have identified in the course of this ruling, there is no necessity for the further and very extensive discovery being sought by the defendant. Much of what he seeks has little or no relevance to the issues which will have to be tried and in any event could not be regarded as necessary for the fair disposal of the actions. The request for the additional discovery if granted would place an entirely disproportionate burden on the plaintiff and would not be a just and proper conduct of the litigation in the sense in which that term is used by Fennelly J. in the quotation from his decision in Ryanair Plc v. Aer Rianta CPT which I have already quoted.
Accordingly this application fails.