Privilege and Discovery

 

Cases

 

Redfern Limited -v- O’Mahony

[2009] IESC 18 (04 March 2009)

Judgment of Mr Justice Finnegan delivered on the 4th day of March 2009

 

 

 

This appeal concerns the decision of the High Court on two applications for inspection of documents pursuant to Order 31 Rule 19 of the Rules of the Superior Courts, one being an application by the appellants and the other an application by the respondent. The appellants’ motion sought inspection of an opinion of senior counsel in respect of which a claim of privilege is made. The respondent’s motion sought inspection of all documents discovered by the appellants in respect of which privilege is claimed which evidence the seeking and/or receipt of legal advices. Each of the motions involve consideration of aspects of waiver of legal professional privilege. The learned High Court judge ordered inspection on the respondent’s motion and refused to order inspection on the appellants’ motion. The appellants appeal each of these orders.

 

For the purposes of this judgment it is necessary to set out the complex factual matrix giving rise to the proceedings and for ease of reference I propose to apply the following definitions:-

 

Redfern Limited (hereinafter “Redfern”)

 

Lowe Taverns (Tallaght) Limited (hereinafter “Lowe”)

Alburn (hereinafter “Alburn”). Alburn is an unlimited company and is a wholly owned subsidiary of Redfern.

 

Larry O’Mahony and Thomas McFeely (hereinafter called “the partners”). The partners were at material times entitled to the entire issued share capital in Lowe.

 

Aifca Limited (hereinafter “Aifca”). Aifca is a wholly owned subsidiary of Lowe and (on what basis this court is not told) enjoys the sub-licence vested in Lowe.

 

Liam Carroll. Liam Carroll is beneficially entitled to the entire issued share capital in Tafica Limited.

Tafica Limited (hereinafter “Tafica”).

 

Agreement dated 4th August 2005 made between Redfern of the one part and the Partners of the other part (hereinafter “The Alburn Agreement”).

Agreement made between Aifca of the one part and Liam Carroll of the other part (hereinafter “The Aifca Agreement”).

 

Agreement dated 31st July 2003 made between Square Management Limited of the one part and Alburn of the other part (hereinafter “The Joint Venture Agreement”).

 

 

The Square, Tallaght, Co. Dublin is a major shopping and commercial development. The development was carried out on lands held under two leases, a lease dated 8th September 1988 and made between the Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin of the first part, the County Council of the County of Dublin, of the second part and L & C Properties Limited of the third part, and a lease dated 1st August 1989 and made between Guardian Assurance Plc of the first part, the Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin of the second part, the County Council of the County of the County of Dublin of the third part, and L & C Properties Limited of the fourth part. The leases, in addition to demising premises, granted a licence over premises which are now a surface car park part of the overall The Square development. The lessor’s interest under the lease is now vested in South Dublin County Council and the lessee’s interest is vested in Square Management Limited. Lowe is entitled to a sub-licence in the car park pursuant to a licence dated 25th October 2001 and which sub-licence is enjoyed by Aifca.

 

Square Management Limited and Alburn entered into the Joint Venture Agreement dated the 31st day of July 2003, the object of which was to develop the car park. For the development to take place it is necessary that all licences over the car park should be extinguished. Square Management Limited agreed to extinguish it’s licence, it being entitled to do so under the terms of the leases. However if the development is to proceed it is necessary that Lowe’s sub-licence should also be extinguished and to achieve this the Alburn Agreement was entered into on the 4th August 2005 between the partners of the one part and Alburn of the other part. By the Alburn Agreement the partners agreed to dispose of the entire issued share capital in Lowe to Alburn in exchange for the allotment of shares in Alburn to the partners. Completion of the Alburn Agreement is essential if the development of the car park is to proceed.

 

On the 13th July 2007 Redfern instituted these proceedings against the partners claiming inter alia a declaration that the Alburn Agreement is valid and subsisting and seeking specific performance of the same. The defence delivered by the partners did not deny the existence of the agreement but pleaded that Alburn had been guilty of unreasonable delay and laches and that as a result of Alburn’s conduct it is estopped from seeking to complete the Alburn Agreement. Delay by Redfern in completion of the Alburn Agreement caused Lowe’s financial position to deteriorate resulting in it’s lenders calling for repayment of borrowings failing which the lenders’ security would be enforced. In consequence it was necessary for the partners to seek alternative funding. Alternative funding was achieved by Aifca entering into the Aifca Agreement with Liam Carroll whereby Tafica would subscribe for 50.25% of an increased issued share capital in Aifca. In consequence the partners no longer control Aifca. Redfern promptly joined Liam Carroll, Tafica and Aifca as defendants and delivered amended pleadings. Against Liam Carroll and Tafica it is pleaded that they entered into the Aifca Agreement with the intention of interfering with the due performance of the Alburn Agreement and/or of inducing the partners to breach the Alburn Agreement. The defence of Liam Carroll and Tafica denies that they interfered with, induced or procured a breach of the Alburn Agreement. They plead that the Aifca Agreement was so designed specifically to ensure that there would be no breach of the Alburn Agreement. They plead in paragraph 13 of the defence as follows:

 

“Even if the Redfern Agreement subsisted at the time of the execution of the Aifca Agreement (which is denied), the third and/or fourth named defendants deny that they had any intention to induce a breach of and/or interference with the performance of the (Alburn) Agreement. In the premises, the third and/or fourth named defendants were expressly cautious to ensure that if the Redfern Agreement did subsist then the clauses of the Aifca Agreement should and did acknowledge and honour the obligations of the first and/or second named defendant under the Redfern Agreement should that Agreement be completed.”

 

 

In the context of the appeal against the order of the High Court granting inspection to Redfern the phrase “expressly cautious to ensure” is central.

APPEAL AGAINST THE ORDER OF THE HIGH COURT REFUSING THE APPELLANTS INSPECTION OF REDFERN’S PRIVILEGED DOCUMENT: APPEAL NO. 250/2008

 

 

The discovery of Redfern disclosed an opinion of senior counsel dated 8th February 2007 and privilege was claimed in relation to the same. The appellants by motion sought inspection of the opinion. Inspection was sought on the basis that the claim to privilege in respect of the opinion had been waived by Redfern furnishing a copy of the opinion to Thomas Dowd, Chairman of Square Management Limited board committee with responsibility for implementation of the Joint Venture Agreement and to Eoghan Clear, solicitor to South Dublin County Council. The sole issue on this appeal is whether that disclosure of the opinion amounts to a waiver of privilege.

 

For the appellants it is submitted that the membership of Square Management Limited consists of all lessees in The Square development. Potentially, therefore, the disclosure to Mr Dowd represented a very wide disclosure. Similarly the disclosure to Eoghan Clear represented a very wide disclosure as each member of South Dublin County Council could request sight of the same.

 

The appellants rely upon Fyffes Plc v DCC Plc and Others [2005] 1 IR 59 as authority. It was there held that legal professional privilege was absolute and the court had no discretion to displace it. Privilege might be lost where it was expressly or by implication waived. While it was there held that the disclosure relied upon as constituting a waiver by implication was insufficiently wide to constitute waiver and inspection was refused, it subsequently transpired that there had been much wider disclosure and the High Court, on that basis, held that there had been a waiver of privilege. Reliance is also placed on the following passages. In Documentary Evidence (9th edition) Hollander [2006] paragraph 19-30 it is stated:-

 

“If the document comes into the public domain, it will no longer be possible to assert that the document is confidential, and thus it will not be possible to claim privilege as one of the necessary pre-requisites of a claim to privilege will be lacking. If the document is disclosed for a limited purpose, or on terms that the recipient should treat it as confidential, the analysis set out above is likely to apply, and there is unlikely to be a difficulty in a subsequent claim for privilege. However, where the document is disclosed to one or more third parties with no express or implied requirement that the third party should treat the document as confidential, it is hard to see why there should be any legal bar on the third party disclosing the document or making it available when served with a witness summons.”

 

 

In Matthews and Malek on Disclosure (Sweet and Maxwell) 2007 it is stated:-

 

“The position is less clear where there is a deliberate supply of a privileged document to a third party. One aspect of the question is the intention with which it was supplied. Was it supplied in confidence, without prejudice to the privilege, e.g. to the directors of the client company, another professional adviser of the plaintiff, such as his accountant, a person otherwise with a ‘common interest’,…in such cases the privilege is generally not lost. Or was it supplied with the intention of abandoning the privilege e.g., to the court to be released to parties and non-parties in the exercise of the court’s discretion, to the media, in the hope of publication, or to the public generally? In these cases it is normally lost.”

 

 

For the respondent it is submitted that the disclosures to Mr Dowd and to Mr Clear must be looked at in context. The context of the disclosure to Mr Dowd is the Joint Venture Agreement. The context of the disclosure to Mr Clear is a document circulated by the County Manager of South Dublin County Council to each member of the County Council and entitled “Proposed Disposal of Lands at The Square, Town Centre, Tallaght incorporating the ‘public’ Millennium Square to Alburn.” The document concerned a proposal by the County Council to dispose of eleven acres at Tallaght, including the car park, to Alburn by way of building lease with a view to its development. It is clear that without the grant of such lease the proposed development of the car park could not proceed. The proposed development conforms with an objective of a draft Master Plan for the Tallaght area and the Tallaght Integrated Area Plan and the County Council wishes the development to proceed. In respect of each of the disclosures there is a community of interest with the recipient: Mr Dowd represents the interest of Square Management Limited in the Joint Venture Agreement and Mr Clear represents the interest of the County Council in relation to the proposed building lease. The Alburn Agreement is a crucial element in the scheme envisaged by the Joint Venture Agreement and the proposed building lease. The Joint Venture Agreement expressly provides for confidentiality. The disclosures did not evince an intention to publish to the public generally but were limited disclosures to third parties with a common interest and did not amount to an implied waiver.

 

It is well established that legal professional privilege may be waived expressly or by implication. In Kershaw .v Whelan [1996] 1 W.L.R. 358 at p. 370 Ebsworth L.J. said:-

 

“Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.”

 

 

In Paragon Finance v. Freshfields [1999] 1 WLR 1183 Bingham C.J. dealt with the nature and basis of legal professional privilege at p.1188:-

 

“At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal advisor have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it whether expressly or impliedly.”

 

 

Fyffes Plc v DCC Plc & Others [2005] 1 IR 59 dealt with implied waiver of privilege. At page 68 Fennelly J. said:-

 

“The appellant, nonetheless, argues for the broad proposition that any disclosure to a third party leads to loss of the privilege. No authority has been cited in support of such a far-reaching principle. It is not to be found in Matthews and Malek, Discovery (London 1992) dealing with the topic of waiver. Apart from the more specific cases of waiver, most of which have been discussed in these proceedings, the authors pose the question whether relevant information was supplied ‘with the intention of abandoning’ the privilege. They footnote instances of communication to the public generally or to the media. Indeed, these references are the only support for the general proposition that disclosure defeats the privilege.”

 

 

Fennelly J. accepted as a correct statement of the law dicta of Clarke J.A. in Goldberg v Mg [1994] 33 N.S.W.L.R. 639 that there is no universal rule that the disclosure of documents produced for the sole purpose of seeking legal advice or litigation to a stranger to that litigation constitutes a waiver of the privilege in the documents.

 

It is accordingly clear that privilege may be waived by disclosure. If the document comes into the public domain privilege will be lost. It will not, however, be lost where there is limited disclosure for a particular purpose or to parties with a common interest. The disclosure relied upon by the appellants here is limited and was to parties having a common interest with the respondent in the proposed development of the car park. Such disclosure does not evince an intention to waive privilege. I am satisfied there has been no waiver of privilege in respect of the opinion sought to be inspected. I would affirm the order of the learned High Court judge and refuse inspection of the opinion.

APPEAL AGAINST THE ORDER OF THE HIGH COURT GRANTING REDFERN INSPECTION OF DOCUMENTS EVIDENCING THE APPELLANTS’ LEGAL ADVICE: APPEAL NO 251/2008

 

 

 

 

 

The appellants’ discovery disclosed documents relating to its legal advice and claimed privilege in relation to the same. In paragraph 13 of their defence the appellants plead that they were “expressly cautious” to ensure that if the Auburn Agreement did subsist then the clauses of the Aifca Agreement should and did acknowledge and honour the obligations of the partners under the same should it be completed. This plea the respondent contends amounts to an implied waiver of privilege over the legal advice obtained by the appellant. The appellants by the plea put in issue their state of mind and the intention of the appellants in entering into the Aifca Agreement cannot be fairly determined without inspection of the advice. The appellants before this court conceded that at the hearing of the action it is the intention to rely upon the fact that legal advice was obtained in relation to the Aifca Agreement, which it is claimed is designed so as to not to interfere with contractual relations between the respondent and the partners, and in effect ask the court to infer from the terms of the Aifca Agreement and the fact that legal advice was obtained the absence of an intention to procure a breach of contract or interfere with the respondent’s contractual relations. The legal advice sought or given will not be introduced in evidence. The court may, of course, make the opposite and adverse inference from the failure of the appellants to waive legal professional privilege.

 

The importance of legal professional privilege in our system of litigation cannot be overemphasised. In Smurfit Paribas Bank Limited v A.A.B. Export Finance Limited [1990] 1 I.R. 469 Finlay C.J. quoted with approval from the judgment of Jessel M.R. in Anderson v Bank of British Columbia [1876] 2 Ch.D. 644 at 649:-

 

“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman with whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against a claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.”

 

 

While the courts afford a very high degree of protection to legal professional privilege the party entitled to the same may expressly or by implication waive it. For the proposition that where the communication in respect of which privilege is claimed is a material fact in itself privilege is impliedly waived the respondent relies on Matthews and Malek, Disclosure, 3rd edition at para. 11.64 where the authors’ state:-

 

“Where in litigation allegations are made by a party concerning his state of mind (e.g. in entering an agreement) to which legal advice contributed, that party cannot withhold the advice on grounds of privilege, but this is because of implied waiver.”

 

 

The respondent relies heavily on this passage and on a line of authority in the courts of Australia and most particularly on Hong Kong Bank of Australia Limited v Murphy [1993] V.R. 419, Telstra Corporation v B.T. Australasia Pty Limited [1998] 156 A.L.R. 634 and Liquorland (Australia) Pty Limited v Angie [2003] V.S.C. 0073. A review of the Australian cases discloses that in that jurisdiction privilege may be lost in the following circumstances:-

 

1. Where a party pleads the privileged document into relevance: Data Access Corporation v Powerflex Services Pty Limited [1994] A.I.P.C. 91.

 

2. Where the court might be misled if the document is not available: Hong Kong Bank of Australia Limited v Murphy [1993] 2 V.R. 419 and

 

3. Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the existence of that state of mind: Wardrope v Dunne [1996] 1Qd. R. 224.

 

 

Some support for the submission that this is also the law in this jurisdiction might appear to be found in a passage from the judgment of Finlay C.J. in Smurfit Paribas Bank Limited v A.A.B. Export Finance Limited at p.477:-

 

“Such privilege should therefore in my view only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”

 

 

However, in Fyffes Plc v DCC Plc & Others at p.67 Fennelly J. in referring to that passage said:-

 

“The then Chief Justice did not, in my view, by those words, mean to suggest that in cases where reliance is placed on legal professional privilege in respect of documents the courts should balance the two considerations, as it were, on a case by case basis. He was referring to what the policy of the law should be. In my view, whether or not documents are privileged will be determined by the application of these principles to the facts of the case. Once it is found to exist, there is no judicial discretion to displace it. I would adopt the following dictum of Lord Bingham C.J. in Paragon Finance v Freshfields [1999] 1 WLR 1183 at p.1188:-

‘The nature and basis of legal professional privilege has been often and authoritatively expounded…at its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it, whether expressly or impliedly.’”

 

 

Paragon Finance Plc v Freshfields concerned a claim in negligence against the defendant, a firm of solicitors. The solicitors advised the plaintiff in relation to the creation of securitised mortgages, each transaction involving several thousand mortgages. In the early 1990s there were many defaults by mortgagors on the mortgages in question as a result of a fall in the property market, a situation with which we are all too familiar today. The plaintiff looked to insurers to indemnify it against the defaults and the insurers refused to indemnify on the basis that the agreed loan to value ratio had not been complied with. The claim against the insurers was settled but the plaintiff nonetheless suffered losses which it sought to recover from the solicitors as damages for negligence. A different firm, Slaughter and May, acted for the plaintiff in its claim against the insurers and Freshfields sought discovery of communications between the plaintiff and Slaughter and May. In the High Court Buckley J. in granting inspection relied upon Hayes & Another v Dowding & Others [1996] P.N.L.R. 578. He held that a plaintiff suing a solicitor for negligence may not claim legal professional privilege in relation to similar transactions involving a different solicitor. Having cited a passage from Hayes & Anor v Dowding & Ors he went on to say at page 591:-

 

“Neither that passage, in context, nor what I have said above, undermines nor is intended to undermine the most common and fundamental operation of legal professional privilege, namely, that one party to a dispute cannot obtain communications between the other party and his lawyer in respect of it. Of course the privilege goes further than that. But, to my mind, it is not significantly undermined by holding that the implied waiver that arises when a client sues his lawyer for professional negligence extends to any privilege communications touching the transaction which gave rise to the charge of negligence and which are relevant to the just determination of issues between them. To borrow a phrase from a different legal concept, privilege is essentially a shield not a sword. I do not believe that concept would be difficult to explain to a client or that it would work against the public interest in question.”

 

 

In the Court of Appeal, allowing the appeal, Lord Bingham held that by bringing the proceedings against Freshfields the plaintiff impliedly waived any claim to legal professional privilege in relation to confidential communications between the plaintiff and Freshfields up to the moment when Freshfields ceased to act. However, there was no waiver of legal professional privilege in relation to confidential communications between the plaintiff and Slaughter and May as that confidential relationship had not been brought into the public domain by the pleadings. The defendants relied on references to justice and fairness in the judgments in Hayes & Another v Dowding & Ors as providing the correct test. The Court of Appeal held that there is no question of balancing the requirements of fairness and justice against the legitimate interest of a party in maintaining the confidentiality of a confidential relationship. Save as between client and the solicitor he is suing, fairness is not the touchstone by which it is determined whether a client has or has not impliedly waived his privilege. The court expressly disapproved of Hayes & Anor v Dowding & Ors where the trial judge relied heavily on Australian authority and held that the Australian authorities there relied on did not represent the law in England.

 

In Nederlandse Reassurantie Groep Holding N.V. v Bacon and Woodrow & Ors [1995] 1 All E.R. 976, a negligence action, the plaintiff sued their advisers, other than legal advisers, and in particular their accountants. The accountants sought disclosure of confidential communications between the plaintiff and their legal advisers relating to the purchase of the share capital of three insurance companies. In the transaction the plaintiff had relied on actuarial, accounting, financial and legal advice. The plaintiff claimed legal professional privilege which claim was upheld. In the course of his judgment at 987E Colman J. pointed out that there could be no question of waiving legal professional privilege by the institution of proceedings in an action to which legal advisers were not a party: in Paragon Finance Plc v Freshfields Bingham J. considered this to be correct. Bingham J. also approved Colman J’s analysis of the basis upon which in a negligence action against a solicitor the plaintiff could not maintain a claim to legal professional privilege. He cited with approval the following passage at page 986C of the report:-

“The true analysis of what the courts are doing in such cases of so-called implied waiver of privilege is, in my judgment, to prevent the unfairness which would arise if the plaintiff were entitled to exclude from the court’s consideration evidence relevant to a defence by relying upon the privilege arising from the solicitor’s duty of confidence. The client is thus precluded from both asserting that the solicitor has acted in breach of duty and thereby caused to the client loss and, to make good that claim, opening up the confidential relationship between them and at the same time seeking to enforce against that same solicitor a duty of confidence arising from the professional relationship in circumstances where such enforcement would deprive the solicitor of the means of defending the claim. It is fundamental to this principle that the confidence which privilege would otherwise protect arises by reason of the same professional relationship between the parties to the litigation. The underlying unfairness which the principle aims to avoid arises because the claim is asserted and the professional relationship opened for investigation against the very party whose duty of confidence is the basis of the privilege. It is against the unfairness of both opening the relationship by asserting the claim and seeking to enforce the duty of confidence owed by the defendant that the principle is directed.”

 

 

The loss of privilege by the mere instigation of proceedings is limited to negligence actions instituted by a client against his solicitor: it is based on unfairness. The privilege attached to transactions with other solicitors, however closely related or relevant, is not affected.

 

 

There is one other area in which legal professional privilege can be lost on the basis of unfairness and that is in relation to partial disclosure of legal advice: see R v Secretary of State for Transport Ex parte Factortame & Others, The Times, 16 May 1997 and cases therein referred to. Where a party deploys in court material which would otherwise be privileged the other party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.

 

It remains the position in England and Wales that while unfairness is material in the circumstances which I have mentioned there is no general proposition that unfairness to an opponent will result in implied waiver of privilege. In Farm Assist Limited (In Liquidation) v Secretary of State for Environment, Food and Rural Affairs [2008] All E.R.(d) 124 (Dec) it was held that there is no general implied waiver of privileged material merely because a state of mind or certain actions are in issue. The test in English law is based neither on general principles of fairness nor on relevance. Implied waiver arising from particular proceedings or pleading allegations in those proceedings is limited to proceedings between client and solicitor. The fact that the plaintiff had obtained legal advice which had contributed to a state of mind does not form any basis for implied waiver in English Law. In the course of the judgment Matthews and Malek on Disclosure 3rd edition was referred to:-

 

“In Matthews and Malek at para. 11-64 the authors referred to a principle that ‘where information which is otherwise privileged itself constitutes a material fact in the proceedings, it is not privileged from disclosure.’”

 

 

It was held that an analysis of the cases establishes no such general principle. Matthews & Malek also state:-

“Where in litigation allegations are made by a party concerning a state of mind (e.g. in entering an agreement) to which legal advice contributed, that party cannot withhold the advice on grounds of privilege, but this is because of implied waiver rather than because no privilege attached in the first place.”

 

 

In support of this proposition the authors cite at footnote 402 three Australian authorities: Wardrobe v Dunne [1996] 1 Qd.R 224 and Ampolex Limited v Perpetual Trustee Co. (Canberra) Limited [1995] 37 N.S.W.L.R. 405 and one English authority Hayes & Anor v Dowding & Ors [1996] P.N.L.R. 578. The learned trial judge held that Hayes & Anor v Dowding & Ors had been overruled in Paragon Finance Plc v Freshfields and that the Australian authorities cited did not represent the law in England. Whilst there is implied waiver in proceedings between a client and solicitor because of unfairness, that did not mean that whenever there is unfairness there will always be an implied waiver of privilege. Privilege is waived on the basis of unfairness in the limited circumstances set out in Lillicrap v Nalder and Paragon Finance Plc v Freshfields and that is in proceedings between a client and his solicitor. In such proceedings, by instituting the same, the plaintiff releases the solicitor from his obligation of confidentiality and cannot rely on legal professional privilege in respect of his documents in the hands of the solicitor. The rationale for an implied waiver in such proceedings is that a party cannot, as a matter of fairness, subject the confidential relationship with its solicitor to public scrutiny and at the same time seek to preserve the confidentiality of the relationship. Outside that, English law recognises the right of a party to maintain legal professional privilege notwithstanding that the person’s state of mind and also that person’s actions may well have been influenced by legal advice and there is no general implied waiver of privileged material merely because a state of mind or certain actions are in issue.

 

Having carefully considered the Australian authorities to which the court has been referred I am satisfied that they do not represent the law in this jurisdiction. Rather the law is as set out in Paragon Finance Plc v Freshfields and Farm Assist Limited (In Liquidation) v Secretary of State for Environment, Food and Rural Affairs. No such general proposition as is sought to be established by the respondent exists in Irish law. As stated by Fennelly J. in Fyffes Plc v DCC Plc & Others there is no balancing exercise to be carried out, and in particular no balancing of legal professional privilege maintained by one party against unfairness to the other.

 

As to the three propositions derived from Australian authorities which I set out above and which are relied upon by the respondent the position is as follows. In relation to the first, a party by its pleadings or by deployment in court may waive legal professional privilege: this will arise where the contents and effect of the legal advice are disclosed. That is not the position here as the contents and effect of the legal advice are not pleaded and, as the appellant has informed the court, will not be relied upon. Only the fact that legal advice was obtained will be relied upon. The other two propositions derived from Australian authorities do not represent the law in this jurisdiction.

 

I would allow the appeal and refuse inspection of the appellants’ documents in respect of which legal professional privilege is claimed.

 

 

 

Conclusion

 

On the respondent’s application for inspection I would uphold the decision of the learned trial judge. On the appellants’ application for inspection I would set aside the decision of the learned trial judge and refuse to order inspection of the documents evidencing legal advice on the grounds that the appellant is entitled to maintain legal professional privilege in respect of the same.

 

 

 

Ryanair Plc v. Aer Rianta Cpt

[2002] IEHC 86 (25 July 2002)JUDGMENT of Mr. Justice Vivian Lavan delivered the 25th day of July, 2002

 

The provisions of Order 31 Rule 12 of the Rules of the Superior Court were amended by the provisions of statutory instrument No 233 of 1999 entitled “RULES OF THE SUPERIOR COURTS (2) (DISCOVERY) 1999, on the 3rd August, 1999.

 

Order 31 of the Rules of the Superior Courts is extensive in its provisions and I view this application in the overall context of an Order which runs to some 29 rules.  It is defined as an Order dealing with “Interrogatories, DISCOVERY AND INSPECTION”.

 

The rules making committee of the High Court, being cognisant of the abuses that an Order for Discovery (without limitation) may have, were responsible for bringing into effect the above statutory instrument.  As Morris P said, in the Swords case (Unreported, High Court, Morris P., 29th November, 2000) :-

 

“As has been pointed out by the court on a number of occasions Discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve the Discovery of a dozen documents.  In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable”.

 

 

 

I wholeheartedly subscribe to that proposition.  How often have I been buried in reams of paper, necessitating the use of trolleys to bring into Court mountains of paper to enable me arrive at a decision – when sight was lost of the twelve essential documents referred to by Morris P.

 

In this case there is a challenge to the decision to Morris P.’s judgment by virtue of the general perception as to its effect on discovery.  Therefore it seems to me that I ought to consider that judgment as delivered on the 29th November, 2000.  I note with some small sense of irony that it is one year to the day since same was delivered.

 

There are two aspects of the judgment I ought to immediately deal with and clarify:- mainly, Order 31 Rule 12 of the Rules of Superior Court in substitution for the existing Order 31 Rule 12 as follows

 

1. (1) Any party may apply to the Court by way of Notice of Motion for an Order directing any other Party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein.  Every such Notice of Motion shall specify the precise category of documents in respect of which discovery is sought and shall be grounded upon the Affidavit of the party seeking such an Order of discovery

 

(a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

 

(b) furnish the reasons why each category of documents is required to be discovered.

 

On this point Mr. Shipsey, counsel for the plaintiff, refers me to page eight of the judgment in which the following appears, namely that the statutory instrument imposed a

 

“clearly defined obligation upon a party seeking discovery to pin point the documents or categories of documents required”.

 

 

 

Patently that overstates the amended rule which is defined as follows

 

“shall specify the precise categories of documents in respect of which discovery is sought.”

 

 

 

Secondly at page 12 of the said judgment there is a reference to the circumstances in which the Master is of the opinion that there has been a compliance by the applicant with Order 34. 12(4)(1).  Patently that ought to be a reference to Order 31. Rule 12( 4) (1) of the Rules of the Superior Courts.

 

I now turn to the judgment in the Swords Case.

 

The specific rule was amended on the 3rd August, 1999.  In the Swords case, the plaintiff claimed he was in the employment of the defendants on the 8th July, 1997 at their meat processing plant at Ballyhaunis, Co. Mayo and alleged negligence against the defendant.

 

On the 29th November, 1999, three months after the aforesaid rule was amended, the plaintiff’s Solicitor wrote to the defendant’s Solicitor asking them to make discovery of certain classes of documents.

 

The judgment of the President is very clear at this point.  There was not compliance with the new rule.  The rule is specific, it requires that the applicant for discovery shall have

 

1. Previously applied in writing requesting that discovery be made voluntarily,

 

2. Specifying the precise categories of documents in respect of which discovery is sought, and

 

3. Furnishing the reasons why each category of documents is required to be discovered, and

 

4. Having allowed a reasonable period of time for discovery, and

 

5. The party or person requested having failed, refused or neglected to make such discovery or having ignored such request.

 

It seems to me for completeness sake to set out the concluding portion of that statutory instrument in the following terms

 

“Provided that in any case where by reason of the urgency of the matter or consent of the parties, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such Order as appears proper, without the necessity for such prior application in writing.”

 

 

 

On the consideration of the foregoing I am satisfied that the President was dealing with this specific case as a case which did not comply with the terms of the new Order 31 Rule 12.

 

In my view what the above decision decided was that the application for discovery must be in compliance with Order 31 Rule 12.  I am of the view that it did not change the substantive law of discovery.  Its states however that the discovery procedure is to be given effect to and goes no further.

 

Turning to the instant case before me the following submission was made on behalf of the plaintiff.

 

1.The legal submissions set out in brief the case law that the plaintiffs submit is relevant to the instant Discovery application and seeks to apply these principles to the circumstances of this case.

 

2.Order 31, Rule 12 of the Rules of the Superior Courts (“R.S.C”) provides that a party may apply to the Court for an Order directing parties to make Discovery of documents which are or have been in his possession, custody or power.  Order 31 Rule 12 has been amended by S.I. No 233/1999 which requires that a Notice of Motion seeking Discovery shall specify the precise categories of documents in respect of which Discovery is sought and that the Affidavit grounding the Motion shall verify:

 

a.That the Discovery of documents sought is necessary for disposing fairly of the cause of matter or for saving costs; and

 

b.Furnish the reason why each category of documents is required to be Discovered.

 

3. Order 31, Rule 12 (3) provides that an Order shall not be made if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

 

4. This change in the Rules was prompted by the decision of Mr Justice Lynch in Brook Thomas Limited v. Impact Limited [1999] 1 ILRM 171. In that case, the Supreme Court held that the meaning of “relating to” as referred to in Order 31, Rule 12 (1) had been enlarged to include any document that “contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary … or which may fairly lead him to a train of inquiry, which may gave either of these two consequences”. In this respect reference was made to the case of Peruvian Guano Company (1882) 11 QBD 55, p. 62.

 

5. This passage has been cited with approval by the Irish court on many occasions, most recently in the judgment of Mr Justice Herbert in Spring Grove Service (Ireland) Limited v. O’Callaghan & Ors, (Unreported, H.C. Herbert J., 31st July, 2000). In that judgment, Mr. Justice Herbert noted that the judgment of Brett LJ dealt not only with the question of Discovery, but also with the question of further Discovery.

 

6. Mr Justice Lynch also suggests that the Superior Courts Rules Committee might consider changing the Rules so as to require an Affidavit before Discovery is ordered.

 

7. In the recent decision of Swords v. Western Proteins Limited, judgment of Mr Justice Morris of 29th November, 2000, the President sets out the reasons for the change in Rules. He held that “the new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to note the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be Discovered was valid. He would then be in a position to know if he was required to comply with the request.  If he disputed his obligation to make Discovery the Court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed that the documents sought to be discovered might have to dispose fairly of the cause or save costs.”

 

8. Thus the purpose of the Rules was not to cut back the ambit of Discovery, but to make the process of Discovery more manageable and to net the issues.

 

9. In Wallace Smith Trust Co. Ltd. [1996] 4 All ER 403, it was held that where there was no claim of confidentiality or public interest immunity or objection on the ground of privilege, the Court follows a relaxed practice and allows production on the basis of relevance. It went on to say that this “is sensible, bearing in mind the extended meaning given to relevance” in Peruvian Guano. It continued that where confidentiality or other grounds of objection arose, it was necessary to decide whether inspection was necessary for the fair disposal of the action.  In the instant circumstances no claim of confidentiality, public interest immunity or particular claim as to privilege has been raised by the sixth, seventh or eight defendant.  However, the case law in respect to the meaning of ‘necessary’ is of some assistance.  In Taylor v. Anderton [1995] 2 All E.R. 420, Mr Justice Bingham stated that

 

“the meaning of the expression “disposing fairly of the cause or matter”.  These words direct attention to the question whether inspection was necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment is the test.”

 

 

 

10. In the instant case, the defendant is objecting to the plaintiffs’ request for documents, if discovered, would assist the plaintiffs in making their case that Articles 81 and/or 82 EC Treaty and Section 4 and/or Section 5 of the Competition Act, 1991 have been breached by the defendant, that its economic interests have been interfered with and that it has damaged the business and reputation of the plaintiffs.

 

 

 

11. The plaintiffs submit that in a case such as the present, whereby its very nature the activities of the defendants will be covert and hidden, it is necessary in order to dispose fairly of the matter that the defendants ought to be obliged to Discover documents which provide them with a litigious advantage. The converse argument is that to deny the plaintiffs Discovery of documents which clearly establish a breach of Irish and/or EC competition rules, during the period while the plaintiffs were attempting to compete with the defendants, would be to impose an unfair disadvantage in the litigation on the plaintiffs.

 

12. The plaintiff submits that its submissions in this respect are supported by the decision of Mr Justice Kelly in Cooper Flynn v. RTE, (Unreported, High Court, Kelly J. 19th May, 2000). In this case, the plaintiff alleged that the defendants had libelled her, and in particular had advised a particular individual, Mr Howard and other unnamed investors to participate in an investment scheme which had as its purpose the evasion of tax liabilities in the State. The defendant pleaded justification, i.e. that the words were true. Discovery was made by a non-party, NIB of 65 client files. The names of those clients were deleted. Mr Justice Kelly was asked to permit the defendants to obtain the documents with the names of the clients. The bank objected on the grounds that a Discovery application could not be used to obtain information to ground a plea of justification and that the Discovery was in the nature of a fishing expedition for the purpose of obtaining witnesses who could substantiate the justification plea. The defendants replied that it would be invidious and unreasonable that the plaintiff should be allowed to defeat a defence of justification by the defendants having to rely on the at present limited evidence which they may be in a position to adduce. If the defendants were not permitted to obtain client names, they would be significantly disadvantaged to the extent of being denied a fair trial. The defendants submitted that procuring the names of the clients would confer a definite litigious advantage on the defendants and their continued concealment would confer a significant litigious advantage on the plaintiff.

 

13. Mr Justice Kelly referred to the decision in Science Research Council v. Nasse [1979] 3 All ER 673 where Lord Salmon held, inter alia, “what does ‘necessary’ mean? It, of course, includes the case where the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order, but it is not confined to such cases. Suppose for example a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection.” Applying those principles, Mr Justice Kelly concluded that knowledge of the identity of the customers would confer a litigious advantage upon the defendants and that to deny them this entitlement would not be conducive to the fair disposition of the action. He went on to say that it had to be borne in mind that the plaintiff had full knowledge of both the identity and the commercial affairs of her clients, whereas the defendants had only a very limited knowledge of the identity of such persons.

 

14. It is the plaintiffs’ submission that the same considerations apply in the instant case. The defendants have a full knowledge of whether or not they participated in activities contrary to Irish and EC competition law. The plaintiffs on the other hand, must by necessity have a limited knowledge of such activities given the nature of these activities and the particular documents generated. It is unlikely that any plaintiff will be in a position to have more than a limited knowledge of such activities and the documents created. Documents establishing the existence and operation of activities in breach of Irish and EC competition rules would undoubtedly confer a litigation advantage on the plaintiffs. In those circumstances the plaintiffs submit that they are entitled to such documents should they exist.

 

15. The plaintiffs submit that their submissions as to the special circumstances of competition cases are reinforced by the decision of Aerozip [1973] FFR 580. In this case, an action for infringement of a patent, the defendants pleaded that the plaintiffs were not entitled to the reliefs sought by virtue of Articles 85 and 86, EC Treaty. The defendants demonstrated that the EC Commission had initiated proceedings in respect of the plaintiffs’ behaviour. The plaintiffs provided particulars of their plea, but such particulars were in general terms. The defendants made it clear when giving those particulars that they were unable to give better particulars until after Discovery and they sought Discovery before Mr Justice Graham. He held “in my judgement, this is not an unreasonable request in the circumstances, since it is clear that the facts of the plaintiff’s conduct must be very largely within their own knowledge and not within the knowledge of the defendants “. He referred to the decision by the Commission to institute proceedings and held that he was entitled to assume that the defendants were justified in contending that there was a good reason for their plea in respect of Articles 85 and 86. He went on to say that

 

“the defendants were in the circumstances justified in saying that they were unable to give further particulars until after Discovery. This is a state of affairs which frequently happens when the detailed information of the facts is primarily within the knowledge of the opposing party only.  It is well recognised by our law”.

 

I quote from Bowen L.J. in Millar v. Harper where he says

 

“It is good practice and good sense that where the defendant knows the facts and the plaintiffs do not, the defendants should give Discovery before the plaintiffs deliver particulars.”

 

16. In the plaintiffs submission, this case is relevant for two reasons. First, it establishes that Discovery may be used to ascertain information which will then be pleaded against a party in further and better particulars. This presupposes that the information has not already been alleged by the plaintiff in its particulars and therefore confirms that Discovery is not available only in respect of matters which have been pleaded with particularity.

 

 

 

1. These outline written submissions are made on behalf of the defendant in response to a motion for discovery issued on behalf of the plaintiff.

 

 

 

2. The plaintiff’s motion was issued on 8 February 2001 and is grounded on an Affidavit sworn by Eamon Gill on 7 February 2001. The motion was issued pursuant to a request for voluntary discovery sent by the plaintiff’s solicitors by letter dated 22 December 2000. Following earlier correspondence, the plaintiff’s letter seeking voluntary discovery was responded to in detail by the defendant’s solicitors by letter dated 16 February 2001. That letter is exhibited to an Affidavit sworn by Eve Mulconry on behalf of the defendant on 30 March 2001 (exhibit “EM1” to Ms. Mulconry’s Affidavit). The plaintiff purported to amend its letter seeking voluntary discovery (in a number of respects) by a further letter dated 14 March 2001 in response to the defendant’s letter of 16 February 2001 sent more than one month after the motion issued. The grounds on which the defendant seeks to resist the discovery sought on behalf of the plaintiff are set out in detail in the defendant’s solicitors’ letter of 16 February 2001.

 

 

 

3. The plaintiff seeks discovery of fifteen principal categories of documents. However, one of those categories (paragraph (v) of the Notice of Motion) contains no less than fifteen sub-categories of documents. Paragraph (xiv) of the plaintiff’s Notice of Motion seeks discovery of a further five subcategories of documents. In all there are approximately thirty-three categories of documents sought by the plaintiff by way of discovery.

 

 

 

4. It may be helpful to summarise the defendant’s response to the discovery sought by the plaintiff at this stage:

 

(1) The defendant maintains that the plaintiff’s request for voluntary discovery made in the letter of 22 December 2000 (as purportedly amended by the plaintiff’s letter of 14 March 2001) was not in compliance with the provisions of Order 31 Rule 12 of the Rules of the Superior Courts (as substituted by the Rules of the Superior Courts No.2) (Discovery), 1999 (S.I. No. 233 of 1999). The letter seeking voluntary discovery does not specify with sufficient precision the categories of documents in respect of which voluntary discovery was sought. Therefore, in accordance with the decision of Morris P. in Swords v Western, Proteins Limited, the plaintiff’s motion has been improperly brought and the Court has no jurisdiction to order discovery on foot of that letter. A new letter was required. The plaintiff was invited in the defendant’s solicitors letter of 12 February 2001 to reformulate its request. The plaintiff declined to do so.

 

 

 

(2) If, contrary to the above submission, the Court has jurisdiction to entertain the plaintiff’s motion for discovery, discovery ought not to be granted in that:

 

(i) The descriptions of many of the documents are vague and imprecise and do not satisfy the requirements of Order 31 Rule 12 (as amended) in that the motion does not specify the “precise” categories of documents as required by the Rules (as amended).

 

(ii) The reasons given for requiring discovery are inadequate and fail to comply with the provisions of Order 31 Rule 12(1) and (3) (as amended). The plaintiff has failed to establish that the documents sought are (in some cases) relevant and (in all cases) necessary “either for disposing fairly of the cause or matter or for saving costs”.

 

(3) The discovery requested by the plaintiff amounts to no less than a “fishing expedition”. The plaintiff appears to have gone through the pleadings and sought discovery of every conceivable category of documents without reference to whether it is necessary to obtain such discovery in order to advance its claim. Moreover, the plaintiff has sought discovery of documents which could not be relevant to any issue raised in the pleadings in their current state.

 

(4) In respect of some of the categories of documents (and, in particular, many of the categories referred to in paragraph (v) of the Notice of Motion), the plaintiff seeks discovery by reference to entirely new matters which the plaintiff sought to introduce into the proceedings by way of purported “additional particulars” by letter from the plaintiff’s solicitors dated 15 December 2000. This letter predated the plaintiff’s request for voluntary discovery by one week and is clearly an attempt improperly to expand the scope of the discovery sought from the defendant. The defendant contends that it is not open to the plaintiff to seek to introduce such matters by way of “additional particulars”. The plaintiff ought to have applied to amend its Statement of Claim. In relation to many of the matters sought to be introduced by way of the “additional particulars” in the letter of 15 December 2000, the defendant has contended that such matters are statute barred as having allegedly arisen more than six years prior to the commencement of these proceedings in September 1999. In one case the events complained of date back to the 1960’s. In another case the plaintiff complains of matters alleged to have occurred in 1991 and in 1984. The defendant contends that the Court would not permit the plaintiff to amend its Statement of Claim to introduce entirely new matters which are statute barred and that a fortiori, the Court ought not to permit the plaintiff to seek discovery of such matters.

 

(5) The defendant requested the plaintiff to reformulate its request for voluntary discovery in a manner which complies with the Rules of the Superior Courts. However, notwithstanding that invitation and notwithstanding that the plaintiff’s solicitors purported to amend the letter of voluntary discovery on 14 March 2001, such amendments were not of a substantive nature and the plaintiff refused to reformulate its request for voluntary discovery.

 

 

 

5. It is proposed to address the plaintiff’s request for discovery under the following sections dealt with below:

 

(1) The history of the proceedings.

 

 

 

(2) The legal principles applicable to the plaintiff’s application for discovery.

 

 

 

(3) The categories of documents sought by the plaintiff.

 

 

 

6. Notwithstanding that the plaintiff has been invited to reformulate its request for voluntary discovery, it has not done so. The defendant has confirmed in correspondence that it is prepared to make appropriate discovery. The defendant awaits a proper letter seeking voluntary discovery.

 

 

 

7. The proceedings were commenced by a Plenary Summons which was issued on 30 September 1999. As appears from the Plenary Summons, the plaintiff sought injunctive relief restraining certain construction works being carried on near its check-in desks at Dublin Airport and also sought to restrain the defendant, its servants or agents or contractors from interfering with check-in desks and baggage belts used by the plaintiff at Dublin Airport. The plaintiff sought declaratory relief that the defendant’s action were contrary to Articles 81 and 82 of the Treaty of Rome and/or Sections 4 and 5 of the Competition Act, 1991. The plaintiff then sought damages on various different grounds. However, from the Plenary Summons it was clear that the sole concern of the plaintiff at that stage were the construction works carried on by the defendants at Dublin Airport. The purpose of the construction works was to facilitate the extension of the main terminal building.

 

 

 

8. On the same day proceedings were commenced the plaintiff sought interlocutory relief. The interlocutory relief sought by the plaintiff was confined to relief restraining the construction works and restraining the defendant from interfering with the plaintiff’s check-in desks and baggage belts at Dublin Airport. Detailed and lengthy Affidavits were sworn on behalf of the plaintiff and on behalf of the defendant for the purpose of the plaintiff’s interlocutory application. It was contended on behalf of the defendant that as part of the construction works which were necessary the plaintiff was required to move on a temporary basis the location of its check-in desks with a consequent reduction from fifteen desks to twelve desks. The plaintiff was also to be required to move from one baggage belt which it used to another with a similar capacity and temporarily to move its ticket office. It was alleged by the plaintiff that the defendant gave preferential treatment to Aer Lingus in relation to facilities available to it during the course of the construction works. The interlocutory injunction application was ultimately settled on terms in October 1999.

 

 

 

9. A Statement of Claim was then delivered on behalf of the plaintiff on 22 November 1999. As appears from the Statement of Claim, the plaintiff’s claim against the defendant mushroomed and was greatly expanded when compared with the complaints made in the Plenary Summons and in the Affidavit sworn for the purpose of the interlocutory injunction application which, as already indicated, were confined to the issues concerning check-in desks and baggage belts. In the Statement of Claim the plaintiff sought to expand its claim beyond the issue of check-in desks and baggage belts (which are dealt with in paragraphs 1 to 12 of the Statement of Claim). At paragraph 13 of the Statement of Claim the plaintiff introduced a whole range of new complaints against the defendant in relation to Dublin Airport (and two in relation to Shannon Airport) which were not raised in the Plenary Summons or in the plaintiff’s application for interlocutory injunction.

 

 

 

10. By way of example at paragraph 13 of the Statement of Claim the plaintiff alleged that the defendant acted in abuse of a dominant position or otherwise in an anti competitive manner in relation to many matters such as in:

 

 

 

(1) Introducing and subsequently increasing a fuel levy on all carriers at Dublin Airport;

 

 

 

(2) Requiring the plaintiff (and other airlines) to use a computerised check-in system at Dublin Airport known as CUTE (Common User Terminal Equipment);

 

 

 

(3) Discriminating against the plaintiff in relation to the extension of its hangar space at Dublin Airport;

 

 

 

(4) Discriminating against the plaintiff in relation to arrangements in place for using and paying for facilities at Pier A in Dublin Airport;

 

 

 

(5) Discriminating against the plaintiff in relation to VIP lounges and car parking;

 

 

 

(6) Discriminating against the plaintiff in relation to its third party handling arrangements at Shannon Airport in 1995;

 

 

 

(7) Discriminating against the plaintiff by allegedly not using the plaintiff’s services for business travel for the defendant’s staff;

 

 

 

(8) Discriminating against the plaintiff In relation to clamping and vehicle recovery services for the plaintiff’s staff in Dublin Airport.

 

 

 

11. In the Statement of Claim and in particulars subsequently furnished the plaintiff has sought to turn its claim in these proceedings into a sort of Tribunal of Inquiry into the operation by the defendant of Dublin Airport (and in relation to two matters, Shannon Airport). No complaint was made by the plaintiff in the Statement of Claim or any of the particulars (including the purported “additional particulars” sent by letter dated 15 December 2000 in relation to Cork Airport although the plaintiff has sought discovery of documents relevant to Cork Airport (paragraph (iv) of the Notice of Motion).

 

 

 

12. The defendant sought particulars of the plaintiff’s claim. While particulars were originally furnished by the plaintiff on 26 April 1999, the plaintiff refused to furnish replies to a further Notice for Particulars dated 14 June 2000. The plaintiff was ordered by the High Court by Order dated 16 February 2001 to furnish certain of the further replies sought by the defendant.

 

 

 

13. A full Defence was filed on behalf of the defendant on 13 December 2000.

 

 

 

14. After the Defence was filed, the plaintiff sought to adduce “additional particulars” in a letter from the plaintiff’s solicitors dated 15 December 2000. That letter predated by seven days the plaintiff’s request for voluntary discovery which was made by letter dated 22 December 2000. That letter contained the following introduction:

 

“The plaintiff has been made aware of the following additional information since the plaintiff delivered its Replies to Particulars. Please note that the additional information will be relied upon by the plaintiff as setting forth additional particulars of its claim and more detailed particulars justifying the discovery sought”:

 

 

 

15. The letter of 15 December 2000 was, clearly therefore, sent for the purposes of further expanding the scope of the discovery to be sought by the plaintiff against the defendant. However, in that letter the plaintiff sought to introduce a number of entirely new issues which had not previously been raised in the Statement of Claim or in the Replies to Particulars previously furnished. Many of the new matters which the plaintiff sought to introduce into the proceedings in the letter of 15 December 2000 are alleged to have occurred more than six years prior to the commencement of the proceedings. For example, one of the matters referred to in paragraph (b) is alleged to have occurred in the 1960’s. Another matter referred to in that paragraph is alleged to have occurred in 1984. The matter referred to at paragraph (a) of the letter is alleged to have occurred in 1991.

 

 

 

16. The defendant contends that it is not open to the plaintiff to seek to introduce such “additional particulars” by way of letter and in the absence of seeking an amendment of its Statement of Claim. If the plaintiff were to seek to amend its Statement of Claim to introduce the matters referred to in the letter of 15 December 2000, the defendant would oppose any such amendment on the grounds that any alleged cause of action arising from such matters would have been statute barred on 30 September 1999 when the plaintiff’s claim commenced. In other words this is not a case where it is alleged that the claim has become statute barred in the period between the date of commencement of the proceedings and the date on which any amendment might be sought. The defendant’s contention is that those matters were already statute barred when the proceedings commenced. In those circumstances the defendant would oppose an amendment to the Statement of Claim on the grounds that many of the matters sought to be introduced are statute barred and no useful purpose would be served in permitting the plaintiff to introduce such matters into the Statement of Claim when the defendant could successfully rely on its plea that the claim is statute barred.

 

 

 

17. If the matters sought to be introduced by the plaintiff in the letter of 15 December 2000 require amendment to the Statement of Claim as contended by the defendant, then this is all the more reason why it is inappropriate for the plaintiff to seek to rely on such matters in the “additional particulars” to justify a claim for discovery in respect of documents relating to those matters (for example, paragraphs (v) (d), (e) and (f)). The defendant’s solicitors objected to the plaintiff’s attempted reliance on the letter of 15 December 2000 to ground its claim for discovery in their letter of 16 December 2001. This compliant has never been satisfactorily addressed by the plaintiff’s solicitors and no application to amend the Statement of Claim has ever been brought.

 

 

 

18. The principles applicable to discovery have been significantly altered by the Rules of the Superior Courts (No. 2) (Discovery), 1999 (the “1999 Rules”) (S.I. No. 233 of 1999) which amended Order 31 Rule 12 of the Rules of the Superior Courts.

 

 

 

19. The 1999 Rules have been considered in a number of recent decisions including Swords v Western Proteins Limited and Burke v D.P.P. (Unreported, Supreme Court, 21st June, 2001). However, before looking at the position under the 1999 Rules it might be helpful to refer to some earlier Irish decisions which demonstrate the requirement that the party seeking discovery must ensure that the documents sought are relevant to the matters at issue in the proceedings and necessary for the disposal of those proceedings and that discovery sought may constitute a “fishing expedition”. It is clearly established by the authorities that the discovery sought must be referable to pleaded issues. This is, of course, now subject to the 1999 Rules. As can be seen from the Notice of Motion and the plaintiff’s request for voluntary discovery the same cannot be said for the discovery sought by the plaintiff in this case.

 

 

 

20. The defendant will refer and rely on a number of Irish decisions on that issue.

 

 

 

21. In Bula Limited (In Receivership) v Crowley, [1991] 1 I.R. 220 in an application for further and better discovery, Finlay CJ observed that:

 

“… any order for further discovery … should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation”‘

 

 

 

22. In Allied Irish Banks plc. v Ernst & Whinney [1993] I.R. 375 which concerned the issue of non party discovery, O’Flaherty J. in the Supreme Court had a number of pertinent comments which are applicable to discovery in general and not merely non party discovery. He observed that:

 

“The purpose of discovery is to help to define the issues as sharply as possible in advance so that the actual hearing is allowed to take its course as smoothly as possible.”

 

He continued by stating that:

 

“Discovery is but an instrument to advance the cause of justice. It should be availed of to give the parties a proper appraisal of the case and on occasion, at least, to remove some issues from the debate thus saving time and costs.”

 

He continued:

 

“There has been experience in other jurisdiction where discovery is used to swamp the opposing party with masses of material, to engage in such a tactic is as much an abuse as to withhold relevant information”.

 

He further stated:

 

“There is no doubt that the party applying for discovery must satisfy the Court that it is likely that the party against whom discovery is sought has documents which are relevant to an issue arising or likely to arise out of the cause or matter. Of course, if the documents are not relevant then they should not be discovered at all.”

 

He concluded by stating:

 

“… these interlocutory matters, such as discovery and interrogatories, are a means to an end and should never be allowed to take on a life of their own” .

 

It will be submitted by reference to the particular categories of documents sought by the plaintiff in the present case that if discovery is ordered of the documents sought by the plaintiff it will not help to define the issues and will not permit the hearing to take its course “as smoothly as possible” in the words of O’Flaherty J. It will not give the parties “a proper appraisal of the case” and will not “remove some issues from the debate thus saving time and costs” as stated by O’Flaherty J.

 

 

 

23. In Irish Intercontinental Bank Limited v Brady (Unreported, Supreme Court, Blayney J., 1st June 1995) in delivering judgment in the Supreme Court, Blayney J. emphasised the fact that documents sought by way of discovery must be relevant to issues disclosed in the pleadings. This was emphasised by Blayney J. at page 7 of the judgment.

 

 

 

24. In one of the leading cases on discovery prior to the 1999 Rules, the Supreme Court made it clear that unrestricted discovery was not appropriate. In Brooks Thomas v Impac [1991] 1 ILRM 171 the Court emphasised the requirement on a party seeking discovery to establish that the documents sought were necessary and not merely relevant. In that case, the Supreme Court allowed an appeal from an Order granting discovery and refused to order further discovery. Although the Court approved the dicta of Brett L.J. in Companie Financiere du Pacifigue v Peruvian Guano Company in relation to the relevance of documents, the Court went on to analyse whether notwithstanding the relevance of documents discovery should fairly be ordered. The case concerned a particular category of documents. The conclusion of the Supreme Court can be seen in the following extract from the judgment of Lynch J.:

 

“I am driven to the inference that discovery in this case was no more than a fishing exercise and was quite unnecessary . . . “(emphasis added)

 

He continued:

 

“In relation to the further discovery the subject matter of this appeal, I am satisfied that it is not necessary either for disposing fairly of the action or for saving costs and I would therefore reverse the order of the High Court and dismiss the motion for further discovery.  (emphasis added)

 

 

 

25. The defendant will refer to two further cases in which the court depreciated the use of discovery as a “fishing expedition”. In Aguatechnoloaie v Natinal Standards Authority of Ireland and Others (Unreported, Supreme Court, 10th July, 2000 Murray J.) Murray J. stated:

 

“The Appellant in its application relied upon the decision of the Court in Sterling Winthrop Group Limited v Fabenfabriken Bayer … where it was held that

 

‘every document relating to the matters in question in an action, which not only would be evidence upon any issue, but which, it is reasonable to suppose, contains any information which may – not which must – enable the party requiring the Affidavit to advance his own case or to damage the case of his adversary, should be discovered’. However, it seems to me that there is nothing in that statement which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly to the matters in issue between the parties to the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.”

 

In McDonnell v Sunday Business Post Limited (Unreported High Court, O’Sullivan J., 2nd February 2000)  O’Sullivan J. stated:

 

 

 

“I would consider a fishing or exploratory operation to be one where there was no stated objective or delimitation by reference to the pleadings. In the present case, however, in general the list of categories of documents sought are capable of being, and in all but one case have been, specifically related to paragraphs in the plaintiff’s pleadings. I have gone through this list carefully and I cannot agree that it bears the hallmarks of an exploration or fishing expedition. On the contrary, in the vast majority of incidents, specific documents are identified with a reasonable degree of precision.’

 

 

 

26. Order 31 Rule 12 was amended by the 1999 Rules. Under Order 31 Rule 12(1) (as amended), a Notice of Motion for discovery is required to “specify the precise categories of documents in respect of which discovery is sought” and is required to be grounded on an Affidavit verifying the discovery of documents sought is “necessary for disposing fairly of the cause or matter or for saving costs” and is required to furnish the reasons why each categories of documents is required to be discovered. Under Order 31 Rule 12(3) it is provided that:

 

“(3) An order shall not be made under this Rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.”

 

 

 

27. Under Order 31 Rule 12(4), a party seeking discovery is required to send a letter in advance requesting voluntary discovery. Order 31 Rule 4(1)(a) requires that a letter seeking voluntary discovery must specify “the precise categories of documents in respect of which discovery is sought” and must furnish the reasons why each categories of documents is required to be discovered.

 

 

 

28. The 1999 Rules clearly demonstrate the importance of initially sending a letter seeking voluntary discovery specifying the precise categories of documents in respect of which voluntary discovery is sought and furnishing the reasons for the discovery sought. The 1999 Rules also require that the motion for discovery must specify the “precise” categories of documents in respect of which discovery is sought. These principles were considered by Morris P. in Swords v Western Proteins Limited. In that case the letter seeking voluntary discovery sought general discovery of documents and, in particular (inter alia) “accident report book / record details”. Morris P. upheld an appeal from the Master ordering discovery of such documents on the grounds that the letter seeking voluntary discovery which was the source of the Court’s jurisdiction to order discovery, did not specify with sufficient precision the documents sought by way of discovery. In his judgment, Morris P. stated as follows:

 

 

 

“With regard to Counsel’s first point, 1 am satisfied that the amendment to Order 31 Rule 12 was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had developed whereby Orders for Discovery were obtained unnecessarily and such Orders delayed litigation. As has been pointed out by the court on a number of occasions, Discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve the discovery of a dozen documents. In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable.”

 

 

 

Morris P. went on to consider the reason for the introduction of the 1999 Rules. He stated as follows:

 

“Accordingly, 1 believe that S.1. No. 233 of 1999 imposed a clearly defined obligation upon a Party seeking Discovery to pinpoint the documents or category of documents required and required that Party to give the reasons why they were required. Blanket discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to know the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make discovery the Court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed that the documents sought to be discovered might help to dispose fairly of the cause or save costs”.

 

 

 

Morris P. concluded that if the letter seeking voluntary discovery did not comply with the Rules then the issue was not identified and there was no power vested in the Master to make determination on any issue even where an elaborate Affidavit was filed. He concluded that the Master derived his jurisdiction from the letter seeking voluntary discovery. Morris P. found that the description of documents such as “accident report books, record details” was not sufficient and did not specify the precise categories of documents sought. He held therefore that there was a failure in that case to specify the precise categories of documents sought by way of discovery and that the 1999 Rules had not been complied with”.

 

 

 

29. The sentiments of Morris P. were echoed by Keane C.J. in delivering the judgment of the Supreme Court in Burke v DPP. In that case Keane C.J. endorsed the comments of Morris P. in Swords and stated:

 

“It is pointed out in the judgment of the President of the High Court … [in] Michael Swords v Western Proteins Limited … – and I should perhaps refer to the actual passage in the President’s judgment – that this amendment to the original rules was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had developed whereby Orders for discovery were obtained unnecessarily and such Orders delay litigation. As has been pointed out by the courts on a number of occasions, discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve in many cases the discovery of not more than a dozen documents. In recent years, the number of documents discovered can amount to many thousand and the process has become in many cases unmanageable. The learned President said that the new rule imposed a clearly defined obligation upon a party seeking discovery to pin point the documents or categories of documents required and required that party to give the reasons why they were required: blanket discovery had become a thing of the past. I have no doubt that the learned President was entirely correct in his view as to the object of a new rule and indeed its importance.”

 

 

 

Keane CJ emphasised the importance of compliance with the Rules for the reasons referred to by Morris P.

 

 

 

30. It is respectfully submitted that the 1999 Rules and the authorities referred to above demonstrate the importance of ensuring that the letter seeking voluntary discovery specifies with sufficient precision and pinpoints the precise categories of documents in respect of which discovery is sought. If it does not do so then neither the Master nor the Court has jurisdiction to order discovery on foot of that letter. The importance of specifying with precision the categories of documents sought is highlighted in the 1999 Rules and in Swords and Burke. So too is the importance of giving adequate reasons for seeking discovery and of demonstrating the necessity of discovery sought. The cases referred to earlier highlight the requirement that the documents sought must be referable to issues raised in the pleadings and discovery cannot be a “fishing expedition”. In this regard reference may also be made to the decision of Whitford J. in British Leyland Motor Corporation v Wyatt Interpart Co. Limited [1979] FSR 39. In that case (a competition case), the court refused to order the wide discovery sought by the defendant on the grounds that it would be “oppressive”. Whitford J. highlighted the fact in such cases the party seeking discovery was not entitled to embark on a “fishing exercise”.

 

 

 

31. As indicated earlier, the plaintiff’s request for voluntary discovery was made by letter dated 22 December 2000. This letter was replied to in detail by the defendant’s solicitors on 16 February 2001. In that letter two preliminary points were made

 

(i)  It was firstly contended that the plaintiff’s letter seeking voluntary discovery did not comply with the provisions of Order 31 Rule 12 (as amended by the 1999 Rules) in that it did not specify or pinpoint the precise categories of documents in respect of which discovery was sought. In many cases, the description of documents was so vague, uncertain and imprecise that the defendant could not be in a position of knowing what documents the plaintiff was seeking by way of discovery. It was, therefore, contended that the letter for discovery was not in compliance with the Rules and therefore there was no jurisdiction to make an order for discovery on foot of that letter.

 

 

 

(ii)  The plaintiff was not entitled to rely on the “additional particulars” purportedly furnished by letter dated 15 December 2000 to ground its request for discovery since no attempt had been made to amend the Statement of Claim to introduce these matters many of which are statute barred.

 

 

 

32. Without prejudice to those preliminary contentions, the defendant sought to address the particular categories of documents sought by way of discovery.

 

 

 

33. As indicated earlier the plaintiff seeks discovery of some fifteen principal categories of documents. However, one of those categories (paragraph (v)) contains no less than fifteen sub-categories. In all the plaintiff seeks discovery of some thirty-three categories of documents. The plaintiff appears to have trawled the pleadings and sought to supplement the pleadings by way of the “additional particulars” and then sought discovery of each and every single issue raised in the pleadings and in the “additional particulars” without reference to what is necessary in order fairly to dispose of the claim or to save costs (being a requirement under the 1999 Rules). It is respectfully submitted that not only is the discovery sought by the plaintiff a “fishing expedition” but that it is not in compliance with the 1999 Rules.

 

 

 

34. Each of the particular categories of documents sought by the plaintiff will now be addressed, adopting the same paragraph numbering as in the Notice of Motion:

 

(i) These documents concern a number of passengers checked in by Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The defendant’s objection is as follows:

 

(a) The request is not sufficiently precise as required by Order 31 Rule 12 and the decision in Swords v Western Proteins Limited.

 

 

 

(b) While the question of passenger numbers is relevant, the plaintiff has not provided a sufficient reason as to why it is necessary that it obtains discovery of the categories of documents (even if they could be discerned by the defendant) referred to in paragraph (i) of the Notice of Motion.

 

 

 

(c) It is not necessary that the plaintiff obtains discovery of such documents. The plaintiff has already given what it regards as the number of passengers handled by Aer Lingus in the Statement of Claim (paragraph 7) and in the Affidavit sworn by Charlie Clifton on 29 January 1999 for the purpose of the interlocutory application.

 

 

 

(d) The reasons given for seeking discovery are, therefore, inadequate.

 

 

 

(e) Without prejudice to those submissions the plaintiff was invited to reformulate its request explaining why discovery was necessary and if it did so the defendant would be prepared to make discovery of documents demonstrating the number of passengers handled by Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The plaintiff did not do so.

 

 

 

(ii) These documents concern the check-in desks and baggage belts provided by the defendant for Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The defendant objects to making discovery of these documents on the following grounds:

 

(a) The request lacks the precision required by Order 31 Rule 12 of the Rules and the decision in Swords v Western Proteins Limited.

 

(b) While documents concerning the check-in desks and baggage belt facilities made available by the defendant to Aer Lingus may be relevant to the proceedings, the plaintiff has not established that it is necessary that he obtains discovery of such documents even if they could be identified by the defendant notwithstanding the imprecision in the description.

 

(c) It is not necessary that the plaintiff obtains discovery of such documents. The plaintiff has asserted in the Statement of Claim (at paragraph 7) and in the Affidavit sworn by Charlie Clifton on 29 January 1999 (at paragraph 2) that the defendant has made available “at least fifty six check-in desks and three baggage belts” to Aer Lingus. No good reason has been advanced as to why documents are required by the plaintiff in support of this plea.

 

(iii) These documents are described in the most general of terms but appear to relate to the facilities in place during the construction works at Dublin Airport. The defendant’s objection to the discovery sought in the manner set out at paragraph (ii) of the Notice of Motion is as follows:

 

(a) The description of the documents lacks the necessary precision required by Order 31 Rule 12 (as amended by the 1999 Rules) and the decision in Swords v Western Proteins Limited. The plaintiff has failed to pinpoint the documents required.

 

(b) While it is accepted that minutes and notes of the consultations which predated the arrangements complained of by the plaintiff during the construction works are relevant, the defendant has already furnished copies of the relevant documents by way of an exhibit in its Affidavit sworn in response to the plaintiff’s interlocutory injunction application (exhibit “DT4” to the Affidavit of Don Treacy sworn on 4 October 1999).

 

(c) The plaintiff has not given good reason as to why the further documents (even if they could be identified notwithstanding the imprecision in the description) are necessary in order fairly to dispose of the claim or to save costs. The reasons advanced by the plaintiff are, therefore, inadequate.

 

(d) Notwithstanding the deficiencies in the request, the defendant is prepared to furnish again the documents previously furnished by way of an exhibit to the Affidavit of Don Treacy together with any public notices about the arrangements.

 

(e) The plaintiff was requested to reformulate its request for voluntary discovery to enable the defendant to reconsider its request. However, the plaintiff has failed to do so.

 

(iv) These documents concern introduction of a fuel levy at Dublin Airport on 1 January 1995, an alleged attempt by the defendant to introduce a similar fuel levy at Cork Airport and negotiations with fuel companies in relation to supply of fuel. The defendant’s objections to the discovery sought are as follows:

 

(a) The documents are not described with sufficient precision as required by the Rules or by the decision in Swords v Western Proteins Limited.

 

(b) As regards fuel levy at Dublin Airport, the plaintiff has not given good reason as to why such discovery is necessary. The plaintiff presumably knows that a fuel levy was introduced and levied on it and other airlines and the amount of that levy. No good reason has been advanced as to why it is necessary to obtain discovery of such documents in order fairly to dispose of the claim. Discovery will merely increase the costs contrary to the provisions of the Rules.

 

(c) The documents sought in relation to Cork Airport are of no relevance to any issue pleaded in the case. Furthermore, accordingly to the plaintiff’s solicitors’ letter of 14 March 2001, the alleged attempt to introduce a similar fuel levy at Cork Airport was in July 2000. This is long after the proceedings. The plaintiff seeks these documents in order to establish a “pattern of abuse of conduct with respect to unjustifiable levies”. However, there is no explanation for this. Not only are the documents irrelevant but the plaintiff has otherwise failed to comply with the Rules.

 

(d) Documents concerning negotiations with fuel companies are not relevant to any pleaded issue. They are not relevant. No good reason has been advanced as to why it is necessary that the plaintiff obtains discovery of these documents.

 

(v) This paragraph seeks discovery of fifteen sub-categories of documents. The documents are described in general terms at the beginning of paragraph (b) of the Notice of Motion and in the letter seeking voluntary discovery. However, by way of a general point, the description of the documents in this paragraph is vague and imprecise. It does not comply with the Rules or with the decision of Morris P. in Swords v Western Proteins Limited. That general point applies to all of the fifteen sub-categories. Turning to those sub-categories in turn:

 

(a) These are documents concerning an alleged refusal by the defendant to consent to the plaintiff funding an extension of its hangar facilities at Dublin Airport in 1998. While this issue is raised in paragraph 13 of the Statement of Claim, it is not accepted that the plaintiff has given good reason as to why it is necessary that the plaintiff obtains discovery of such documents. Therefore, the request does not comply with the provisions of the Rules.

 

(b) This concerns a decision to extend a lease in respect of Team Aer Lingus and to grant consent to the financing and construction of a new hangar in February 1999. Again, while this is referred to at paragraph 13(c) of the Statement of Claim, no proper attempt has been made to demonstrate why it is necessary that the plaintiff obtains discovery of such documents. There has not, therefore, been compliance with the Rules and no discovery should be ordered.

 

(c) This concerns the joint funding in 1998 of check-in area q between the defendant and Aer Lingus. While this is pleaded at paragraph 13(c) of the Statement of Claim, no attempt has been made to give sufficient reasons as to why discovery is required. The defendant contends that discovery should not be ordered on the grounds of non compliance with the Rules and on the grounds that the request constitutes a “fishing expedition”.

 

(d) Documents sought here contain an alleged agreement between the defendant and Team Aer Lingus in 1991. In addition to the general point that there has not been compliance with the Rules, the defendant further objects that this issue is not raised in the pleadings; it was raised in the purported “additional particulars” in the letter of 15 December 2000; the plaintiff is not entitled to rely on the “additional particulars” to advance its claim for discovery in the absence of seeking to amend its Statement of Claim; the issue raised would be statute barred since it is alleged to have occurred in 1991; no attempt has been made to explain why it is necessary that the plaintiff obtains discovery of such documents.

 

(e) The documents sought here concern an alleged lease by the defendant to Aer Lingus in respect of a tract of land reserved for unspecified purposes and/or development. In addition to the general point made earlier, the defendant objects to making discovery on the grounds that this is not an issue raised in the pleadings, it was purportedly raised in the “additional particulars” in the letter of 15 December 2000. No attempt has been made to amend the Statement of Claim. No attempt has been made to state when this lease was allegedly granted. No proper attempt has been made to advance the reason why it is necessary the plaintiff obtains discovery of these alleged documents. (f) The documents here concern the alleged refusal by the defendant to extend to the plaintiff similar terms to those extended to Aer Lingus and referred to at (e) above. However, this is not relevant to any issue raised in the pleadings. It is not raised in the Statement of Claim. It is not even raised in the “additional particulars” in the letter of 15 December 2000. No indication is given as to whether any request for similar facilities was made by the plaintiff and, if it was, when it was refused. Therefore, the documents sought here are not relevant. Nor has the plaintiff advanced sufficient reasons as to why discovery is necessary.

 

(g) These documents concern an alleged assignment of a lease to FLS. The defendant objects to discovery of these documents on the grounds that there is no such allegation in the pleadings. It was raised in the purported “additional particulars” in the letter of 15 December 2000. However, no attempt has been made to amend the Statement of Claim. It is not alleged anywhere in either the Statement of Claim or in the “additional particulars” that the plaintiff sought an assignment of the lease and that it was refused. It is submitted that no good reason has been advanced as to why it is necessary for the plaintiff to obtain discovery of these documents even if they could be identified notwithstanding the imprecision in the description.

 

(h) These documents concern an alleged assignment of a lease by the defendant to Aer Lingus in respect of an area of land of approximately 13 acres on which the head office was constructed. This is not an issue raised in the pleadings. It was not in the Statement of Claim or in any of the particulars furnished. It was contained in the purported “additional particulars” contained in the letter of 15 December 2000. However, as is clear, the events are alleged to have occurred in the 1960’s. Any claim is therefore statute barred. The defendant was not given a good reason as to why it is necessary that the plaintiff obtains discovery of these documents.

 

(i) This request concerns a “Memorandum of Understanding” allegedly agreed between the defendant and Aer Lingus. However, again this is not an issue raised in the pleadings. It was raised for the first time in the purported “additional particulars” in the letter of 15 December 2000. The defendant has the same objections as in relation to (h) above. The agreement was alleged made in 1984. It is therefore statute barred. No good reason has been given as to why it is necessary that the plaintiff obtains discovery of these documents.

 

(j) The documents here concern an alleged agreement between the defendant and Aer Lingus to develop a hanger facility for A320 aircraft in Shannon. However, this is not an issue raised in the pleadings. It is not in the Statement of Claim or in any of the particulars. It was raised in the purported “additional particulars” in the letter of 15 December 2000. It introduced a new element not previously raised in relation to Shannon Airport. It is not relevant to the matters at issue in the proceedings. Nor has the plaintiff given good reason as to why it is necessary that it obtains discovery.

 

(k) This request concerned an agreement to allow an additional floor on top of the Aer Lingus Catering and Personnel Building at Shannon Airport. This is not an issue raised anywhere in the pleadings. It was purportedly raised in the “additional particulars” on 15 December 2000. However, no amendment has been made to the Statement of Claim. In any event the agreement concerns Dublin Airport and an identical arrangement was made with the plaintiff. Therefore, these documents are not relevant to any issue in the proceedings and the plaintiff has not given good reasons as to why it is necessary that it should obtain discovery of these categories of documents.

 

(I) These documents concern an alleged agreement between the defendant and UPS Shannon Airport in relation to hangar facilities. Again such documents are not relevant. They are not relevant to any issue raised in the Statement of Claim. They were purportedly raised in the “additional particulars”. However, no attempt was made to amend the Statement of Claim. Not only are they not relevant but no good reason as been advanced as to why it is necessary that the plaintiff obtains discovery of them.

 

(m) These documents appear to overlap with paragraph (c) above. The same objection applies.

 

(n) These documents concern the alleged granting by the defendant to Mr. Goodman of a lease for the development of an airside hangar facility. However, they are not relevant to any issue raised in the proceedings. The documents do not derive from any issues pleaded in the Statement of Claim. This issue was raised for the first time the purported “additional particulars” in the letter of 15 September 2000. This was an attempt to render the issues relevant to the matters in the proceedings. However, it is not relevant and no attempt has been made to demonstrate its relevance. Nor is it necessary that the plaintiff obtains discovery of such documents.

 

(o) Documents relating to “any other favourable arrangements” entered into with other operators such as Aer Lingus, DHL, SIPTU and Gate Gormet. This request is totally imprecise. It is clearly a fishing expedition. No attempt has been made to show the relevance of the documents sought here to any matter pleaded in the Statement of Claim. It is not even raised in the “additional particulars” in the letter of 15 December 2000. The plaintiff has made no attempt to demonstrate why it is necessary that it obtains discovery of these documents.

 

(vi) These documents concern the computerised check-in services known as CUTE at Dublin Airport. However, the description of the documents does not satisfy the provision of the Rules or the decision in Swords v Western Proteins Limited. The description is imprecise and no attempt has been made to pinpoint the documents requested. No attempt has been made to explain why it is necessary that the plaintiff obtains discovery of such documents. The plaintiff was given an opportunity by the defendant’s letter of 16 February 2001 to reformulate its request for discovery explaining why these documents were required. This was not done.

 

(vii) Two further categories of documents are sought here. They concern:

 

(a) The elimination of discounts applicable to Pier A at Dublin Airport on 1 January 2000; and

 

(b) Details of the cost for the construction of Pier C, the passenger terminal extension and Pier A including contract prices.

 

 

 

As to (a), the plaintiff has not described the documents with sufficient precision to comply with the Rules and the decision of Morris P. in Swords v Western Proteins Limited. No attempt has been made to identify what documents are requested. No adequate attempt has been made to explain why it is necessary that the plaintiff obtains these documents. The plaintiff has alleged the elimination of the discounts. Why should discovery be required of this? The discovery concerns events which occurred after the commencement of the proceedings (on 1 January 2000) where as the proceedings were commenced on 30 September 1999. If, contrary to the submissions, documents are ordered under this heading they should be limited in time. As to (b), the plaintiff is not entitled to “details” of anything by way of discovery. The plaintiff appears to be seeking a vast amount of documentation concerning the construction of a number of different facilities. No attempt has been made to explain why these are relevant or why they need documents in order to make the case. It is alleged by the plaintiff that it is required to pay the same rate as operators using Pier C for substantially inferior services and infrastructure. However, it is clear, therefore, that the plaintiff is aware what it and other operators are paying and the facilities which it is getting for what it is paying. It is not clear why discovery of documents under this heading is necessary. The discovery sought here is oppressive, irrelevant and unnecessary.

 

(viii) Documents here concern VIP lounges, car-parking and facilities at Dublin Airport. The plaintiff also seeks a “list” of all persons / companies to whom such facilities are made available. The defendant maintains its objection that the description of documents is inadequate and does not comply with the provisions of the Rules or the decision in Swords v Western Proteins Limited. The defendant makes the point that the plaintiff has never requested VIP lounges for its passengers. However, without prejudice to its objection, the defendant is prepared to provide copies of agreements entered into by the defendant with other airlines concerning VIP lounges. With regard to the car parking, the defendant makes the point that it provides 370 staff car parking spaces free of charge to the plaintiff. Without prejudice to its objection, the defendant is prepared to make copies of such agreements with respect to the provision of car parking to the plaintiff and Aer Lingus as may exist. However, both these documents and the documents in relation to VIP lounges should be limited in time. The defendant does object to making discovery of a “list” of persons and companies. This is not an appropriate matter for discovery. The defendant also objects to making discovery of the alleged withdrawal of VIP facilities from the plaintiff’s employees. The defendant does not accept that such documents are relevant or that it is necessary that the plaintiff obtains discovery of them. The plaintiff should be aware of those employees from whom it is alleged VIP facilities were withdrawn.

 

(ix) The documents sought here concern alleged refusal by the defendant to allow the plaintiff’s chosen third party handling agent access to Shannon Airport in 1995. The defendant makes a general objection that the description of documents does not comply with the Rules and the decision in Swords v Western Proteins. The plaintiff has also failed to explain why it is necessary that it obtains discovery. However, notwithstanding that objection the defendant is prepared to furnish copies of documents concerning the plaintiff’s request to have its own third party handers at Shannon Airport in 1995.

 

(x) The documents here concern an alleged decision by the defendant in 1995 to change the designation of the plaintiff’s parking stands at Shannon Airport. The defendant maintains its objection to the discovery sought in this paragraph on the grounds that the description of documents does not comply with the Rules or with the decision in Swords v Western Proteins. However, without prejudice to that objection, the defendant has indicated that it is prepared to make copies of whatever documents it has concerning this alleged decision available to the plaintiff.

 

(xi) The documents here concern an alleged refusal by the defendant up to 1995 to allow the plaintiff’s passengers access to Pier A through a link access. The defendant submits that the description of documents does not comply with the provisions of the Rules or with the decision in Swords v Western Proteins Limited. The defendant does not accept that the plaintiff has advanced good reason as to why it is necessary that it obtains discovery of such documents.

 

(xii) The documents here concern an alleged policy of the defendant to give its airline travel business for its executives and staff to Aer Lingus and not the plaintiff. The description of documents here is vague and uncertain. The plaintiff has failed to comply with the provisions of the Rules and has not identified with sufficient precision the documents requested by it. The plaintiff has not given good reason as to why it is necessary that it obtains discovery of such documents. It is unclear as to what documents are being sought or the period for which such documents are sought.

 

(xiii) The documents sought in this paragraph concern an alleged decision by the defendant to clamp cars at the plaintiff’s head office building and to instruct the vehicle recovery service “to make things difficult” for the plaintiff and its staff. The defendant objects to the description of the documents on the grounds that it does not comply with the provisions of the Rules or with the decision in Swords v Western Proteins Limited. The defendant contends that there was no such policy or instruction. The alleged policy or instruction according to the plaintiff was introduced in October / November 1999. This was after the commencement of the proceedings. Therefore, no discovery should arise.

 

(xiv) Some five sub-categories are sought in this paragraph. With regard to sub-paragraphs (a) to (c), the defendant repeats its objection that the plaintiff has not complied with the Rules or with the decision in Swords v Western Proteins Limited. However, furthermore, in so far as the plaintiff seeks discovery of documents concerning “incidents”, the plaintiff has failed to identify what it means by “incidents”. In particulars the plaintiff has identified two incidents, one in October 1999 and another on 16 February 2001. However, both are alleged to have occurred after the commencement of proceedings and therefore no discovery should arise. The plaintiff should reformulate its request describing the incidents which predated the proceedings with sufficient precision to enable the defendant to assess what documents are being sought and the necessity for the discovery of those documents. With regard to (d), notwithstanding that the defendant’s bye-law came into effect in October 1999 after the commencement of proceedings, the defendant is prepared to provide copies of such documents. With regard to (e), this concerns complaints in relation to wheelchair / disabled faculties at Dublin Airport, the defendant is prepared to provide copies of such documents although it does not accept that the plaintiff has made a good case that it is necessary that it obtains discovery of such documents.

 

(xv) This is a request for documents concerning the introduction of a bye-law requiring  provision to be made for the needs of persons with disabilities at Dublin Airport. While this post dated the commencement of the proceedings, the defendant is prepared to make available to the plaintiff copies of all documents concerning the introduction of the bye-law (S.I. No. 469/99).

 

 

 

35. It can be seen from the defendant’s letter of 16 February 2001 that the plaintiff was invited to reformulate its request for discovery so that it complied with the Rules and it was indicated that the defendant would consider any such further request for discovery. Notwithstanding that invitation and notwithstanding that a number of minor typographical amendments were made in a subsequent letter from the plaintiff’s solicitors dated 14 March 2001, the plaintiff made no attempt to reformulate its request for discovery and pressed on with this motion notwithstanding the deficiencies identified in the defendant’s letter of 16 February 2001.

 

 

 

36. The defendant respectfully submits that the plaintiff’s application for discovery should be refused.

 

 

 

1. These supplemental written submissions are made on behalf of the defendant in response to an issue raised in the plaintiff’s outline legal submissions.

 

2. The issue concerns the meaning of the term “necessary” in Order 31 Rule 12(3) of the Rules of the Superior Courts (as amended by the 1999 Rules). Order 31 Rule 12(3) provides that:

 

“(3) An Order [for discovery] shall not be made under this Rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.”

 

3. In its outline legal submissions, the plaintiff contends that all of the documents in respect of which it is seeking an order for discovery are “necessary” for fairly disposing of the cause or matter. The plaintiff relies on the decision of Kelly J. in Cooper Flynn v Radio Telefis Eireann (Unreported, High Court, Kelly J., 19th May 2000) and on a number of English authorities quoted by Kelly J. in that decision -Wallace Smith Trust Co. v Deloitte [1996] 4 All ER 403; Taylor v Anderton [1995] 2 All ER 420; Science Research Council v Nasse [1979] 3 All ER 673.

 

4. The plaintiff contends that these cases establish that a party seeking discovery of documents, in order to establish that such discovery is “necessary” would in the meaning of Order 31 Rule 12(3) of the Rules (as amended), has merely to establish that it will gain a “litigious advantage” in obtaining the documents. In support of this contention the plaintiff contends that the defendant “would have taken care to hide evidence of [its alleged] illegal behaviour and that the plaintiff “must by necessity have a limited knowledge of such activity given the nature of [the alleged] activities and the particular documents generated. To bolster its argument the plaintiff submits that it competes with the defendant? The plaintiff contends that the defendant ought not to be permitted to hide documents allegedly establishing breach of competition law.

 

5. In response to the submissions the defendant respectfully submits as follows:

 

(1) Before addressing the legal principles, it is necessary to take issue with the factual basis on which the plaintiff’s submissions are based. There is no question of the plaintiff competing with the defendant and no such allegation is made anywhere in the pleadings. Furthermore, there is no question of the defendant hiding evidence of any alleged illegal behaviour. No such allegation has been made by the plaintiff in any of the Affidavits sworn on its behalf in support of its application for discovery. It is most inappropriate that such an allegation is made for the first time in its legal submissions. Furthermore, there is no question of the plaintiff having “limited knowledge” of the defendant’s activities. As is clear from the pleadings, the plaintiff operates from Dublin Airport and has done so for many years. The detail of the allegations contained in the Statement of Claim and in the particulars furnished by the plaintiff are totalling inconsistent of the plaintiff having a “limited knowledge” of the matters which it is alleging against the defendant in the proceedings. The plaintiff’s submissions on this issue appear to be wholly unrelated to the factual position asserted by the plaintiff in the pleadings.

 

(2) The plaintiff relies on Cooper Flynn v RTE. However, that case did not concern an application for discovery. Orders for discovery had already been made in that case against NIB. At least one of the orders for discovery was made in December 1999, after the 1999 Rules had come into force. The application before the Court was an application for inspection of documents which had already been disclosed in NIB’s Affidavit of Discovery. The application was made under Order 31 Rule 18 of the Rules of the Superior Courts and not Rule 12 (which was amended by the 1999 Rules). The basis on which NIB and the plaintiff resisted inspection (but not discovery) was banker / customer confidentiality. That case was, therefore, totally different to the present case. In that case the defendants had already overcome the hurdle of establishing that the documents sought by way of discovery were “necessary” within the meaning of Order 31 Rule 12(3). What was at issue was whether inspection of the documents (without restrictions) could be permitted. The Court was not concerned with whether it was necessary for discovery of those documents to be made in the first place. That decision had already been made by the Court which ordered discovery.

 

(3) A generous interpretation of the word “necessary” in Order 31 Rule 12(3) would be fundamentally inconsistent with the purpose of the amendments to Order 31

 

Rule 12 introduced by the 1999 Rules (as discussed by Morris P. in Swords v. Western Proteins Limited and by Keane C.J. in Burke v DPP). Nor would such an interpretation be consistent with the sentiments of Lynch J. in delivering the judgment of the Supreme Court in Brooks Thomas Limited v Impac Limited. The defendant respectfully submits that the term “necessary” should be given its natural and ordinary meaning, in order words, must be essential that the plaintiff obtains discovery of such documents in order fairly to dispose of the claim or to save costs. The plaintiff has not satisfied this test.

 

(4) If the principles in Cooper Flynn and in the English cases cited by Kelly J. in that case (all of which seem to involve an issue of confidentiality or public immunity privilege) are applicable to an application for discovery as opposed to inspection, then it is necessary to have regard to what those principles are as they have not been fully set out in the plaintiff’s written submissions. As is clear , from the portion of the judgment of Simon Brown L.J. in Wallace Smith Trust Co. v Deloitte which was quoted with approval by Kelly J. in Cooper Flynn, disclosure will be “necessary” if three conditions are satisfied. Disclosure will be “necessary” if:

 

“(a) It will give “litigious advantage” to the parties seeking inspection (Taylor v Anderton…) and

 

(b) The information sought is not otherwise available to that party by, for example, admissions or some other form of proceeding (e.g. interrogatories) or from some other source (see e.g. Dolina -Baker v Merrett…) and

 

(c) Such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (see e.g. Science Research Council v Nasse …)’

 

(5) It is clear that if principles in Cooper Flynn are applicable, the onus of establishing each of these three conditions lies on the parties seeking inspection (or, in this case, discovery). The defendant respectfully submits that the plaintiff has failed to discharge that onus. It has only sought to address the issue of “litigious advantage”. It has not discharged the onus of establishing such a “litigious advantage” within the meaning of that term in Science Research Council v Nasse. The plaintiff has not sought to address the other parts of the test which is whether the information is otherwise available to the plaintiff (or known to the plaintiff) or that the discovery sought would not be oppressive. It is submitted that the discovery sought would be oppressive. The defendant’s solicitors pointed out in their letter of 16 February 2001 in response to the request for voluntary discovery the vast amount of documents sought and the unnecessary costs involved -for example -the documents concerning the construction of Pier A and Pier C (paragraph (vii) of the Notice of Motion).

 

6. In summary, therefore, it is respectfully submitted that the meaning of the term “necessary” in Order 31 Rule 12(3) which the plaintiff contends cannot be correct having regard to the major change in the principles governing applications for discovery introduced by the 1999 Rules. Even if the principles for which the plaintiff contends are applicable, the plaintiff still fails to satisfy those principles or to meet the test for establishing the discovery sought by it is “necessary” either for disposing fairly of the cause of the matter or for saving costs.

 

In this case I’m dealing with an allegation of breach of a dominant position.  Without drawing unnecessary distinctions I am satisfied that the plaintiff’s objections to the perceived views of the Swords judgment are correct.

 

I would go further.  The defendants have a fundamental obligation as to the strategic and economic use of Irish facilities given the dominant position of the defendants it seems to me that the Court must look very carefully at the request of discovery.

 

I would in the circumstances of this case direct the defendants to answer all of the plaintiff’s requirements for discovery.

 

 

Schneider [Europe] GMBH -v- Conor Medsystems Ireland Ltd

[2007] IEHC 63 (02 February 2007)

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 2nd day of February 2007.

The plaintiff is the proprietor of a European and Irish patent no. 0650740 (“The 740 patent”). The subject of the patent is an interventional catheter.

The defendant manufactures, markets and sells in Ireland a product known as the “CoStar product” which includes and comprises an interventional catheter. The plaintiff alleges that the defendant in so doing infringes the 740 patent. The defendant denies infringement and has counterclaimed for invalidity of the 740 patent on the basis of obviousness and lack of novelty.

Particulars have been sought and delivered; interrogatories raised, answered and the defendant has made certain admissions. Certain of these are relevant to the applications the subject of this judgment.

The plaintiff and defendant have each brought motions for discovery. The plaintiff also has brought a motion for further interrogatories. This was not pursued by reason of admissions made by the defendant on the morning of the hearing of these applications. Further by reason of those admissions the defendant’s motion for discovery was heard first and it is proposed to deal with the motions in the same order in this judgment.

 

Defendant’s Motion for Discovery

At the hearing, the defendant pursued its application for discovery of three categories of documents. The first category as stated in the notice of motion was revised and limited. The categories as pursued at the hearing are:

“Category (1)

Such documents relating to patent applications filed with the US Patents and Trademarks Office in respect of the product which is the subject-matter of EP 0650740 as disclose the state of the art (including but not limited to the two prior art documents pleaded) prior to the priority date of the European Patent.

 

Category (2)

All documents howsoever described concerning the conception, development and reduction to practice of the subject matter disclosed or claimed in the 740 Patent including (but not limited to) all laboratory notebooks of the named inventor, Gerhard Kastenhofer, and his laboratory technicians, correspondence, files, memoranda, notes, calendars, models, research and prototypes of the named inventor and any co-worker who assisted him with regard to the subject matter of the 740 Patent in respect of each feature of the Patent.

 

 

Category (3)

All documents which disclose or evidence the consideration (if any) given by the inventor of the 740 Patent, European Patent No. 0650740 and any other equivalent patent and by or on behalf of the Plaintiff to the prior art referred to or related to that listed in the Particulars of Objections delivered on behalf of the Defendant on 24 July 2006 or to any other documents considered but deemed by the inventor and/or by or on behalf of the Plaintiff not to be prior art including any documents disclosing or evidencing any consideration or evaluation by or on behalf of the Plaintiff as to the potential effect of any such alleged prior art on the patentability of the subject matter disclosed in the 740 Patent, in European Patent No. 0650740 or any other equivalent patent.”

 

General Principles

The parties are in agreement that the general principles according to which these applications for discovery should be determined are those set out by Kelly J. in P.J. Carroll and Co. v. The Minister for Health and Children (Unreported, High Court, 9th December, 2005). In the judgment of Geoghegan J. in the same case (Unreported, Supreme Court, 1st June, 2006) it is recorded at p. 6 that the parties in that case conceded that the learned High Court judge in his judgment had set out the correct principles to be applied.

Those principles are set out by Kelly J. at pp. 34 – 40 of his judgment in the following terms:

 

“Applicable Legal Principles

Order 31, r. 12 of the Rules of the Superior Courts as amended requires an applicant for discovery to demonstrate that the documents sought are both relevant and necessary for the fair disposal of the case or to save costs.

The locus classicus on relevance is to be found in the judgment of Brett L.J. in the Peruvian Guano Case [1882] 11 Q.B.D. 55. That judge described as relevant-

“Every document relating to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.”

That statement was considered by Murray J. (as he then was) in Aqua Technolgie v. NSAI (Supreme Court, 10th July, 2000) where he said:-

“… There is nothing in that statement which is intended to qualify the principle, that the document sought on discovery must be relevant, directly or indirectly to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.”

In Framus v. CRH Plc [2004] 2 ILRM 439, the Supreme Court approved of the approach of McCracken J. in this court in Hannon v. Commissioner of Public Works (Unreported, 4th April, 2001) where he set forth the appropriate approach to relevance as follows:-

“(i) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant.

(ii) Relevance must be determined in relation to the pleadings in the specific case. Relevance is not to be determined by reasons of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that Order 31, r. 12 of the Superior Court Rules specifically relates to discovery of documents ‘relating to any matter in question therein’.

(iii) It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other parties’ documentation is not permitted under the rules.

(iv) The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties.”

There is much recent authority on the second part of the test which an applicant for discovery must satisfy. Such an applicant must show that the discovery sought is necessary for disposing fairly of the cause or matter or for saving costs. The burden of proving that the discovery falls within this rubric rests with the applicant for discovery. This is not “a mere formalistic requirement” (see Ryanair Plc. v. Aer Rianta Cpt [2003] 4 IR 264.)

In that case Fennelly J. dealt with the issue as to what is meant by this concept of necessity by reference to my decision in Cooper Flynn v. Radio Telefís Éireann [2000] 3 I.R. 344 where I had adopted the following statement of Lord Bingham M.R. in Taylor v. Anderton where he said:-

“The crucial consideration is, in my judgment, the meaning of the expression ‘disposing fairly of the cause or matter.’ Those words direct attention to the question of whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.”

Fennelly J. having referred to that passage went on to say:-

“It may not be wise to substitute a new term of art ‘litigious advantage’, for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation.

The change made to Order 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.

The court, in exercising the broad discretion conferred upon it by Order 31, r. 12(2) and (3), must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It should also 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 the fairness of the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may, no doubt, include the possible service of notices to admit facts or documents. But there are two sides to litigation. The behaviour of the opposing party is relevant. That party may, for example, have made or may offer to make admissions of facts, and thus persuade a court that discovery on some issues is not necessary. This is, perhaps, axiomatic. Those facts will no longer be an issue.”

This approach has been maintained by the Supreme Court in Taylor v. Clonmel Healthcare Limited [2004] 1 IR 169, where Geoghegan J. stated:-

“The purpose of the amendment (to Order 31, r.12) was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be.”

Again in Framus v. CRH Plc. Murray C.J. said:-

“It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out the critical question is whether discovery is necessary for ‘disposing fairly of the cause or matter’. 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. That is not to gainsay in any sense that the primary test is whether documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.”

It is these principles which I intend to apply on this application for discovery.

In accordance with the judgment of McCracken J. in Hannon v. Commissioner of Public Works I must turn to the pleadings to see whether the documents sought are relevant to the issues to be tried.”

The documents sought by the defendant herein are alleged to be relevant to its counterclaim for revocation of the 740 patent. The particulars of objections to the validity of the 740 patent allege want of novelty and inventive step having regard to the state of the art as of the priority date. Such state of the art is alleged to have comprised the following matters available to the public:-

“(a) United States Patent No. 4,960,410 (Pinchuk 1) published on 2nd October 1990.

(b) EP 0 476 855 A1 (Pinchuk 2) published on 25th March 1992.

(c) Common general knowledge, to extent that it may not be set out in any of the above.”

Category (1)

In the letter seeking voluntary discovery of the 19th September, 2006 and in the motion issued herein the defendant sought a much broader category of documents in category (1). The broader category included document passing between the plaintiff and the Irish and European Patent Offices in respect of applications for the 740 patent and the European patent no. 0650740. The plaintiff agreed to discovery of documents within that category “without prejudice to the strict relevance or necessity of such documentation” and also without prejudice to a request for clarification on the documents sought within category (1).

The category as originally drafted also sought documents relating to applications with other foreign patent offices (in addition to US) and in relation to “any other equivalent patent”. At the commencement of the hearing of this application counsel for the defendant indicated that he accepted that the category then sought was too wide and indicated that the application was being confined to certain documents passing with the US Patents and Trademarks Office (“USPTO”) in relation to patent applications filed in respect of a product with identical description and claims to that the subject matter of EP0650740 as disclosed the state of the art prior to the priority date of the European patent as in the revised wording set out above.

These documents are sought on the basis that they are likely to disclose analysis of the extent to which the product the subject matter of the 740 patent was novel or comprised an inventive step having regard to the prior art and therefore relevant.

The justification for seeking documents relating to an application to the USPTO, having regard to the agreement to furnish the documentation relating to applications to the Irish and European Patent Offices is by reason of the differences in approach of those offices as set out in the affidavit of Anne Ryan a European Patent Attorney sworn on the 14th November, 2006. In that affidavit at paragraph 5 and 6 she states:

“5… There is no obligation on the part of an applicant for a European patent to bring to the attention of the European Patent Office prior art of which the applicant is or becomes independently aware. An application may be examined solely by reference to prior art cited by the EPO itself. The EPO may therefore be unaware of information showing that the invention was actually in use or otherwise in the public domain prior to the priority date of the invention, or of prior art for which it did not search.

6. The situation prevailing when applying for a patent in the US Patent and Trademark Office is very different. There the applicant is obliged to disclose all material information, including prior art and prior public use, of which the applicant (including inventors, patent attorneys, agents, their representatives and/or anyone involved in the prosecution and obtaining of the patent application on behalf of the applicant) is aware which affects the patentability of the claims to the authority. Thus the applicant will be obliged to disclose prior art, even if it was not searched by the EPO or was not otherwise known to the EPO. It is also relevant to point out that in the US patent system the invention for which patent protection is sought may be used for a period of one year prior to application being made without destroying the novelty of the invention; while in the European system generally any use prior to filing destroys the novelty of the invention.”

The defendant relies upon the decision of Whitford J. in Vickers PLC v. Horsell Graphic Industries Limited [1988] R.P.C. 421 That decision concerned the obligation of a plaintiff to disclose certain documents on file and open to public inspection in connection with what is referred to as a “comparable United States application”. The English proceedings included a claim to the validity of the English patent. Whitford J. in considering the relevance of the documents on the US application file to the English proceedings stated at p. 423:

“My opinion as regards documents is this. I go no further than saying that quite plainly vast numbers of documents are filed in connection with foreign applications, and mostly they are going to be irrelevant. I entirely accept that opinions which may have been expressed or experiments which may have been conducted in connection with foreign applications are at the end of the day not necessarily likely to be conclusive and may indeed prove to be of only limited importance, but they do assist a defendant. They disclose the line which may be taken in connection with the defence to the attack upon the validity which is going to be put forward. They disclose the approach to the issue of infringement.”

The plaintiff objects to an order being made even in the reduced form now sought. It objects primarily on the basis that this is in reality a “fishing exercise” by the defendant particularly having regard to its failure to identify a US patent with identical or almost idential description and claims. It also submits that the defendant has failed to establish that the order sought is necessary as even if such documents may be considered as relevant, such documents should be available to the defendant from the USPTO. This latter submission is not based upon evidence as to the public availability of documents filed with the USPTO. The plaintiff distinguishes the decision in Vickers as it related to an identified US patent application.

I have concluded that the Court should not make an order for discovery as sought in to this category. In accordance with the general principles set out above the onus is on the party seeking discovery to establish relevance and necessity. Where as in this application the defendant seeks documents furnished by an unspecified applicant to the USPTO in relation to a patent which is not the subject matter of the proceedings but which may be an identical or an almost identical patent such as to make the documents of application relevant, it appears to me that it must, in the absence of special circumstances, at minimum identify the relevant US patent.

The defendant submits that in its letter of request of the 19th September, 2006, as part of its reasons for the discovery of the documents in category (1) it stated: “Furthermore, there are equivalent or closely related United States Patents” and that there was no denial of the existence of such patents. Whilst it is true that the plaintiff did not expressly deny the existence of such patents it did seek clarification of the documents being sought in category (1). Where as in this instance both the plaintiff and the defendant are members of multinational groups of companies and it is not alleged that the plaintiff itself filed for an equivalent United States Patent, it appears to me that the onus must be on the defendant to identify the relevant patent in respect of which it seeks documentation before this Court should make an order for discovery of some or all the relevant documentation. In the absence of such identification it appears to me that the application is properly described as “a fishing exercise”. Further, an order for discovery in the terms sought without identification of the relevant patent or indeed the applicant for the patent may be considered oppressive as that term was used in particular by McCracken J. in Hannon v. Commissioners of Public Works and referred to in the extract from that judgment cited by Kelly J. and set out above.

In the event that the defendant identifies a US patent which is considered to be identical or almost identical and the applicant is a person whose documents may be considered to be within the power or procurement of the plaintiff in these proceedings then the defendant may be entitled to pursue a more precise application.

 

Categories 2 and 3

The primary documents as sought in categories 2 and 3 are what were referred to in argument as the “inventor’s notebooks”. This generic description covers the entire of what is sought in category (2). No distinction was made in submission between the documents of the inventor and those working with him. In category (3) some distinction was made between the documents disclosing assessment by the inventor and those disclosing assessments by other persons on behalf of the plaintiff. It is proposed firstly to deal with those documents within categories 2 and 3 which come within the description of inventor’s notebooks.

The defendant submits that such documents are both relevant and necessary for the fair disposal of this case. It relies in particular upon the decisions of the Court of Appeal of England and Wales in SKM SA v. Wagner Spraytech (U.K.) Limited [1982] RPC 497; the High Court of Australia in Welcome Foundation Limited v. BR Laboratories (Australia) Limited [1982] RPC 343 and the Supreme Court of Canada in Eli Lilly and Company v. Apotex Inc. [2006] FCR 104. In each of those decisions orders for discovery of inventors’ notebooks were made.

The plaintiff disputes the relevance and necessity of the documents sought. It submits that this Court is not bound by the above decisions and that having regard to the decisions of the Supreme Court and High Court in Ranbaxy Laboratories Limited v. Warner Lambert Company [2006] 1 IR 193 (Supreme Court) and (Unreported, High Court, 8th June, 2005) and the decision of Laddie J. in the Patent Court in Hoechst Celanese Corporation v. BP Chemicals Limited and Another [1997] FSR 547 that this Court should now upon a consideration of the matter from first principles refuse the order sought primarily as not being relevant.

The plaintiff’s submissions in part are based upon the issues which will have to be determined by the court at the hearing of the defendant’s counterclaim and the probable primary evidence. These matters were not in dispute.

The test for novelty is purely objective. Section 11 of the Patents Act 1992 provides:

“(1) An invention shall be considered to be new if it does not form part of the state of the art.

(2) The state of the art shall be held to comprise everything made available to the public (whether in the State or elsewhere) by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application.

(3) Additionally, the content of a patent application as filed, of which the date of filing is prior to the date referred to in subsection (2) and which was published under this Act on or after the date, shall be considered as comprised in the state of the art…”

The proper approach to determining the issue of inventive step or obviousness is as set out by Oliver L.J. in Windsurfing International Inc. v. Tabur Marine (Great Britain) Limited [1985] RPC 59 and is as follows:

“The first [step] is to identify the inventive concept embodied in the patent in suit. Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at the date, common general knowledge in the art in question. The third step is to identify what, if any, differences exist between the matter cited as being “known or used” and the alleged invention. Finally, the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention.”

 

The Court was also referred to the decision of the Court of Appeal in Mölnlycke AB v. Proctor & Gamble Limited [1994] RPC 49. Having regard to the similarity of ss. 9, 11 and 13 of the Patents Act 1992 with the U.K. statutory code under consideration in that decision it appears relevant. The Vice-Chancellor delivering the judgment of the court at p. 112 stated:

“Under the statutory code (. . .) the criterion for deciding whether or not the claimed invention involves an inventive step is wholly objective. It is an objective criterion defined in statutory terms, that is to say whether the step was obvious to a person skilled in the art having regard to any matter which forms part of the state of the art as defined in section 2(2).

 

. . .

 

The Act requires the court to make a finding of fact as to what was, at the priority date, included in the state of the art and then to find again as a fact whether, having regard to that state of the art, the alleged inventive step would be obvious to a person skilled in the art.

 

In applying the statutory criterion and making these findings the court will almost invariably require the assistance of expert evidence. The primary evidence will be that of properly qualified expert witnesses who will say whether or not in their opinions the relevant step would have been obvious to a skilled man having regard to the state of the art. All other evidence is secondary to that primary evidence.

 

. . .

 

In the nature of things, the expert witnesses and the court are considering the question of obviousness in the light of hindsight. It is this which may make the court’s task difficult. What with hindsight, seems plain and obvious, often was not so seen at the time. It is for this reason that contemporary events can be of evidential assistance when testing the experts’ primary evidence… A particular inventor may have been aware of some aspect of the state of the art as defined in section 2(2), and may therefore have genuinely taken what was actually an inventive step, but nevertheless be unable to claim a patentable invention since the step was, in the terms of the statute, obvious.

 

…

 

Secondary evidence of this type has its place and the importance, or weight, to be attached to it will vary from case to case. However, such evidence must be kept firmly in its place. It must not be permitted, by reason of its volume and complexity, to obscure the fact that it is no more than an aid in assessing the primary evidence.”

 

The primary evidence at the hearing will be expert evidence. The Court is not determining in this application the admissibility of secondary evidence of the inventor as to steps taken by him or what he was or was not aware of at the relevant time. However, it is important in this application to note that the plaintiff has not indicated that the inventor will not be called and on the authorities referred to (albeit from England and Wales, Australia and Canada) it appears, at least possible that such evidence may be admitted. In any event the need to see this documentation for the purpose of cross-examining the inventor if called was only relied on as a subsidiary basis for the relevance and necessity of the inventor’s notebook. The primary ground upon which it is contended that the documents are relevant and necessary is that they may lead to a line of inquiry and may assist the defendant to advance its own counterclaim in that they will disclose the actual experiments and other steps taken by the inventor and his consideration of such of the prior state of the art as was known to him. It is submitted that such information will be of assistance to the defendant in that it will enable it obtain its own expert opinion as to whether the steps actually taken by the inventor in achieving the invention were steps which would have been obvious to the hypothetical person skilled in the art. Further, that it will be of assistance to the defendant in cross-examining the plaintiff’s expert witnesses by reference to what at least one person admittedly skilled in the art (i.e. the inventor) actually did.

The above grounds are very similar to those advanced on behalf of the applicant for discovery in SKM SA and Another v. Wagner Spraytech (U.K.) Limited and Others [1982] RPC 497.

SKM concerned an appeal against an order for discovery of the inventor’s notebooks in infringement proceedings with a counterclaim for revocation by reason of obviousness and false suggestion.

The submissions made in that case as to the lack of relevance of the documents ordered to be discovered are very similar to the submissions ably made by counsel for the plaintiff in these proceedings. The judgment did concern in some respects the admissibility of evidence of what was done by the inventor. However, it also considered the question of discovery independently of potential evidence from the inventor. In considering grounds similar to those advanced on behalf of the defendant herein Oliver L.J. at p. 508 stated:

“Again, although they do not intend to call the inventor, the case is clearly not going to be fought without the presence of expert witnesses on both sides. Knowledge of the inventor’s experiments will assist the defendant in two respects. He can obtain his own expert’s opinion upon whether the steps taken by the inventor were the steps were no more than steps which would or should have been obvious to any skilled man; and he can, as was suggested in the Australian case, utilise any knowledge which he acquires regarding the inventor’s experiments or researches in cross-examination of the plaintiffs’ technical witnesses by reference to what an admittedly skilled man actually did.

These, I think, were all clearly matters which the learned judge must have had in mind in deciding to follow and to adopt the reasoning of the Australian decision. I confess to having been, at first, very much impressed by Mr. Gratwick’s argument and indeed to some extent sympathetic to it, for I can see, as Whitford J. saw in the Halcon case, that the practice of ordering this type of discovery in patent cases can lead to delay, expense and a substantial addition to the documentation in actions which already tend to be overburdened with paper. I have, however, in the end been persuaded that the argument which he so attractively put before us is one which tends to confuse discovery and admissibility, and speaking for myself I am not prepared to differ from the conclusion at which the learned judge arrived that the discovery sought may be of assistance to the defendant, either offensively or defensively, on the issue pleaded. I would not therefore disturb the order which he made and on the view which I take it is unnecessary to consider the further matters raised by the respondents’ cross-notice.”

The Australian decision referred to by Oliver L.J. is the decision of the Federal Court of Australia in Wellcome Foundation v. V.R. Laboratories (Australia) Pty. Limited [1981] R.P.C. 35. That decision was subsequently heard on appeal by the High Court of Australia and the appeal dismissed. Judgment in the High Court was delivered by Aickin J. with whom the other members of the court agreed. The judgment of Aickin J. considers the admissibility of evidence of the research and experiments of the inventor leading up to the claimed invention and concluded that it is generally admissible though not always likely to be helpful. On the question of discovery of documents Aickin J. stated that the test was wider than the test of admissibility and referred to an Australian decision of Temmler v. Knoll Laboratory (Aust) Pty Limited noted in [1969] 43 A.L.J.R. 363 of Windeyer J. It appears from the citation given at p.357 of the judgment of Aickin J. that the test for relevance is very similar to that set out by Kelly J. following the decision in Cie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11QBD 55. Aickin J in conclusion stated at p. 360:

“The cases to which I have referred appear to show that some discovery in respect of the work done by a patentee in arriving at his invention has been given as a matter of course and that the disputes have been as to the extent of discovery. Since evidence of such work may in some cases be relevant to the issue of obviousness it must follow that discovery should generally be given, even if only on the basis that the documents discovered may suggest a line of inquiry worth investigation.”

The Federal Court of Canada considered whether an order for discovery should be made of inventor’s notebooks in Eli Lilly & Company v. Apotex Inc. [2006] 4 FCR 104. The issue was considered in a slightly different procedural context and it appears from paragraph 27 of the judgment that the actual decision to order discovery was made by reason of a contest to the identity of the inventors and/or the assignment of the patent. However, the judge in additional comments made considered the inventor’s notebooks to be discoverable. At paragraph 36 Aronovitch P. stated (in a passage which I think must be considered obiter):

“Discovery is not be confused with admissibility. The fact that the test for the determination of a ground of invalidity is objective, and that the knowledge or opinion of the inventor may not be relevant in the sense that it cannot be relied upon to construe the patent, does not imply that the facts of the process of invention cannot be collaterally relevant to the issues or that they will not be considered by the Court, whatever their ultimate probative value. Moreover, documents, relating to the inventive process may be discoverable on the basis that they can contain relevant facts or ones leading to a line of inquiry that will be helpful to advance the case of one of the parties to the suit – for example, prior art references that may not be known to the party pleading invalidity.”

The plaintiff has relied upon obiter statements of Laddie J. in Hoechst Celanese Corporation v. BP Chemicals Limited and Another [1997] FSR 547 at 565 which undoubtedly raises questions as to the wisdom of the approach to discovery in the above decisions. In the passages relied upon Laddie J. refers to the evidence given by the inventor, Dr. Hilton, and to a number of authorities which suggest that such evidence is irrelevant to the issue of obviousness. He expresses the view that this is particularly so if as in that case the inventor did not have before him the prior art relied upon by the defendants in their challenge. He expresses a conclusion that:

“All the historical evidence of what individuals did or have thought to have done at or about the priority date is of no assistance in determining whether or not Dr. Hilton’s development was obvious.”

Laddie J. then indicates that extensive discovery was made but very little referred to in court and that even that small number of documents took the case no further. He makes it clear that he is not seeking to blame the lawyers by reason of the prior decisions including that of the Court of Appeal in SKM SA v. Wagner Spraytech (U.K.) Limited [1982] RPC 497 and then states at p. 566:

“However, there is much pressure now to reduce the cost of litigation in general and patent litigation in particular. Parties and the court must be astute to prevent the expenditure of time, effort and money on the filing and challenging of unnecessary evidence and discovery. As the Vice Chancellor said in Mölnlycke, secondary evidence on the issue of obviousness must be kept firmly in its place. If the evidence is of no weight it should be excluded from the outset. Evidence that others in the art did or did not make essentially the same development at or before the priority date of the patent should not be given unless it can be shown that those others were starting from or had brought to their attention all or some of the prior art pleaded in the case or the evidence is in some other way really relevant to the issues in dispute. Similarly, although the SKM case provides that documents relating to the inventor’s research and development are discoverable, it may well be that that blanket approach needs refinement. It seems to me that there may well be strong arguments for holding that discovery should not be given of research or development work carried out by the inventor or anyone else if that work did not start from or involve consideration of the pleaded prior art. This is a matter which may need to be considered properly in some future case.”

I have as requested by counsel for the plaintiff considered this application from first principles. The decisions cited are not binding on me but of course all deserving of great respect. Whilst I would agree with the views expressed by Laddie J. of the importance of reducing the cost of litigation it appears to me that applying the agreed principles in relation to relevance in this jurisdiction, that for reasons very similar to those stated by Oliver L.J. in SKM SA v. Wagner Spraytech (U.K.) Limited cited above the defendant has established as a matter of probability that the inventors notebooks in this case are relevant to its counterclaim upon the grounds that they contain information which may enable it advance its own case or damage that of the plaintiff both in the manner of instructions which it will permit them to give to their own expert and advice which they may obtain from such expert leading to his or her evidence and in preparation for the cross-examination of the plaintiff’s experts.

I have also formed the view that the discovery of such documents is necessary for the fair disposal of these proceedings. This is information which is available to the plaintiff. The plaintiff is in a position to use this information in briefing its own expert witnesses. Further it will be able to brief its lawyers with the relevant information for the purpose of cross-examining the defendant’s experts. In such circumstances the documents having been relevant it appears to me that it is necessary for the fair disposal that they be discovered.

I have considered the plaintiff’s submissions in reliance upon the decisions of the Supreme Court and High Court in Ranbaxy Laboratories Ltd. v. Warner Lambert Company [2006] 1 IR 193. Those decisions do not appear to me to assist the plaintiff in its defence of this application.

The decisions were given on a preliminary issue in a patent action in which the principal issue is the proper interpretation of the claims in the defendant’s patent. The plaintiff had brought a motion for discovery of documents which comprised correspondence between the patent agents of the defendant and the European Patent Office and Danish Patent Office. That correspondence was alleged to express a view on the proper construction of the Irish patent. The defendant objected to discovery on the basis that the documents would not be admissible in evidence in the proceedings. A preliminary issue was then set down on the admissibility of such documents in evidence in the substantive proceedings.

It is important to note that this was the only basis upon which discovery was sought. It was not contended that the documents were relevant or necessary as leading to a “line of inquiry” as was submitted in these proceedings. It is also important to note that the issue in the substantive proceedings in Ranbaxy Laboratories Ltd. v. Warner Lambert Company is quite different from the issues in these proceedings. It concerned only the proper interpretation of the claims in the patent. This is agreed to be a matter of law. The test is what the claim means to an expert in the field to which it relates.

On the preliminary issue the documents were determined both by the High Court and the Supreme Court to be inadmissible in evidence in the proceedings.

The documents sought were determined by the Supreme Court to be submissions made on the defendant’s behalf to the patent offices and in reality expressions of opinion of the patentee as to the construction of the claims and as such inadmissible in evidence.

In these proceedings, the court may well have to interpret certain of the claims in the plaintiff’s claim for infringement. However, this application for discovery in the 740 patent relates to the defendant’s counterclaim for invalidity. The issues which the court will have to determine include questions of fact in relation to which the primary evidence will be the expert evidence referred to above. For the reasons already set out the documents sought by the defendant appear to me to be relevant and necessary to the determination of those issues on the counterclaim.

The final issue on the defendants’ application relates to that part of category (3) which seeks documents which disclose certain considerations given by or on behalf of the plaintiff by persons other than the inventor.

The parties in their submissions did not highlight any distinction between the inventor and other persons who gave such considerations by or on behalf of the plaintiff. Objection is made in the written submissions on behalf of the plaintiff to a lack of clarity insofar as in this category the defendant seeks documents which disclose or evidence consideration given to matters other than the prior art referred to in the particulars of objections. It is alleged that it is unclear what is meant by consideration of “any other documents considered but deemed by the inventor and/or on behalf of the plaintiff not to be prior art.” This objection appears well founded.

Subject to the above I have concluded that insofar as the defendant seeks documents which disclose or evidence the consideration (if any) given by or on behalf of the plaintiff to the prior art referred to in the particulars of objections in the context of the application for the 740 patent including any documents disclosing or evidence any consideration or evaluation by or on behalf of the plaintiff as to the potential effects of any such alleged prior art on the patentability of the subject matter disclosed in the 740 patent or in the European patent no. 0650740 that the defendant is entitled to an order for discovery of such documents.

I have so concluded as it appears to me that such documents may disclose a line of enquiry which the defendants may wish to pursue with their expert witnesses and which may advance its counterclaim or damage the plaintiff’s defence to that counterclaim. It further appears that the discovery of such documents is necessary for the fair disposal of the pleadings for the same reasons as set out above.

Accordingly, on the defendant’s application I will disallow the documents sought at category (1); allow in full the documents sought at category (2) and allow in category (3) the following:

Category (3)

All documents which disclose or evidence the consideration (if any) given by the inventor of the 740 Patent, European Patent No. 0650740 and any other equivalent patent and by or on behalf of the Plaintiff to the prior art referred to or related to that listed in the Particulars of Objections delivered on behalf of the Defendant on 24 July 2006 including any documents disclosing or evidencing any consideration or evaluation by or on behalf of the Plaintiff as to the potential effect of any such alleged prior art on the patentability of the subject matter disclosed in the 740 Patent, in European Patent No. 0650740 or any other equivalent patent.

 

PLAINTIFF’S MOTION

The plaintiff pursued an application for discovery of a revised paragraph 1 to its notice of motion. The revised order sought is in the following terms:

“1. An Order that the Defendant make discovery on oath of the following categories of documents (the numbering used in the Plaintiff’s letter seeking voluntary discovery dated 18 September 2006 is retained for ease of reference):

(a) All documents and materials relating to the following design features of the Defendant’s Co-Star Paclitaxel-Eluting Coronary Stent System (“the CoStar Product”) including but not limited to, documents and materials relating to the inception, design, composition, creation, development, testing and certification and/or regulatory approval, including CE marking and manufacture:

(i) of the inner tubes comprised in the CoStar Product, the nature, composition (including the materials from which they are manufactured) and securing together of any layers or surfaces of the same, and their mechanical properties including friction co-efficients;

(ii) any balloon comprised in the CoStar Product, its composition, and positioning in relation to any catheter tube and its connection with and securing to any catheter tube(s);

(iii) of the layers or surfaces of the inner catheter tube, including any relationship or connection between each layer or surface, including the positioning of the layers or surfaces in relation to one another and/or the attachment together of them, including for example, extrusion of such layers or surfaces and extrusion parameters;”

The defendant has agreed to discover the documents and materials relating to the composition, testing, certification and/or regulatory approval, including CE marking in relation to the above matters. What is in dispute is the application for the documents and materials relating to the inception, design, creation, development and manufacture of the above aspects of the CoStar Product.

The plaintiff submits that in particular documents and materials relating to the design and manufacture of these aspects of the product are relevant and necessary for the fair disposal of its claim of infringement.

The defendant submits that such documents are not relevant or necessary having regard to the nature of the claims in the 740 patent; the answers already given to interrogatories; the admissions made on the 30th November, 2006, and its agreement to discover the documents and materials relating to the composition of its product.

The claims made in the ‘740 patent are as follows:

1. An interventional catheter comprising a catheter tube (1) having two superposed layers (2,3) of material secured in relation to one another and with mechanical properties differing from one another, a longitudinal lumen (12) in said catheter tube for the sliding fit of a guide wire (11), and a balloon (4) with a proximal end (6) and a distal end (5), whereby the distal end (5) sealingly surrounds said catheter tube (1), whereby the catheter tube (1) has an inner layer (2) forming the longitudinal lumen (12) and an outer layer (3) forming the outer surface of the catheter tube (1), and the inner layer (2) is formed of a material with lower friction coefficient than the material forming the outer layer (3), characterised in that the inner layer (2) forming the longitudinal lumen (12) of the catheter tube (1) is a polyethylene, the outer layer (3) is made of a polyamid, and the distal end (5) of the balloon (4) is welded to the outer polyamid layer (3) of the catheter tube (1).
2. An interventional catheter according to claim 1, wherein the two layers (2, 3) of the catheter tube (1) are produced by extruding the outer layer (3) over the inner layer (2).
3. An interventional catheter according to Claim 1, wherein the inner layer (2) forming the longitudinal lumen (12) of the catheter tube (1) is a high density polyethylene.

The particulars of infringement alleged by the plaintiff at para. 5 of the statement of claim are:

“The Defendant, its servants or agents have been manufacturing in Ireland, selling, offering and stocking the CoStar Product which includes an interventional catheter which infringes each of claims 1, 2 and 3 of the ‘740 Patent.

 

An analysis of the Defendant’s CoStar Product shows that its catheter includes all of the following features of Claim 1 of the ‘740 Patent:-

(a) an interventional catheter comprising a catheter tube having two superposed layers of materials secured in relation to one another an with mechanical properties different from one another,

(b) a longitudinal lumen in said catheter tube for the sliding fit of a guidewire, and;

(c) a balloon with a proximal end and a distal end whereby the distal end sealingly surrounds the catheter tube;

(d) the catheter tube has an inner layer forming the longitudinal lumen and an outer layer forming the outer surface of the catheter tube;

(e) the inner layer of the catheter tube is formed of a material with a lower friction coefficient than the material forming the outer layer;

(f) the inner layer forming the longitudinal lumen of the catheter tube is made of a polyethylene;

(g) the outer layer is made of a polyamide, and

(h) the distal end of the balloon is welded to the outer polyamide layer of the catheter tube.

 

Further, and in breach of Claim 2 of the ‘740 Patent, the two layers of the catheter tube of the defendant’s CoStar Product are produced by extruding the outer layer over the inner layer.

 

Further, and in breach of Claim 3 of the ‘740 Patent, the inner layer of the catheter tube of the Defendant’s CoStar Product forming the longitudinal lumen of the catheter tube is a high density polyethylene.

 

The Plaintiff reserves the right to provide further particulars of infringement up to and including the trial herein.”

 

The defendant in its defence denies each and every particular of infringement.

The issues in the proceedings will include issues as to whether the defendant’s product includes the features alleged in the particulars of infringement save insofar as the defendant may already have made admissions in the statement of admissions of 30th November, 2006, or in the answers to interrogatories.

It is unnecessary to set out in full here the answers to the interrogatories. They are not straight forward. The defendant, as it is entitled takes the view that certain of the terms in the patent require to be interpreted by the court and pending such interpretation has not answered in a clear manner the interrogatories put.

I have formed the view that the plaintiff has established that the documents relating to the design and manufacture are as a matter of probability relevant and necessary to the resolution of the issues arising from certain of the alleged particulars of infringement. I accept that many go to the composition of the defendant’s product. However, it appears to me that certain of the particulars may involve a consideration of the design and process by which the defendant’s product is manufactured and hence the plaintiff is entitled to the documents sought.

I refer by way of example to the allegation that the defendant’s product is an interventional catheter comprising a catheter tube having two superposed “layers of materials …” In the replies to interrogatories the defendant has indicated that it is unable to confirm or deny that the catheter tube has an “inner layer” or “outer layer”. It contends that the terms “layer” or “inner layer” or “outer layer” require a construction by the court. This may well be correct. Nevertheless following such construction it may be necessary for the court to determine whether those parts of the defendant’s product are “layers” within the meaning of the claim as construed. The precise design and/or specification for this part of the product may be relevant to that determination.

A further feature included in the alleged particulars of infringement at paragraph (h) is that “the distal end of the balloon is welded (emphasis added) to the outer polyamide layer of the catheter tube”. Again in relation to this the defendant contends that the term “welded” or “welding” requires construction by the court. It is admitted that the distal end of the balloon is attached to the outer polyamide layer of the catheter “by the application of heat and pressure”. It appears probable that when the term welded is construed by the court the precise process (including amount of heat and pressure) by which this attachment takes place may be relevant to the question as to whether it is welded within the meaning of the claim of the patent.

The above are not intended to be exhaustive but are simply two examples given of the reasons for which I have formed the view that the plaintiff has established that notwithstanding the answers to interrogatories and admissions that documents and materials relating to the design and manufacture of those aspects of the product listed in paragraphs (i) to (iii) of paragraph 1(a) of the amended notice of motion are relevant and necessary for the fair disposal of these proceedings. There are further probable similar issues having regard to particulars of infringement in issue, even taking into account replies to interrogatories and admissions.

I have concluded that documents and materials relating to the inception, creation and development of the product are not relevant or necessary. The plaintiff has not established that such documents are relevant to the issues raised by the claim in these proceedings. The infringement alleged relates to the final product.

Accordingly, the plaintiff is entitled to an order for discovery in the revised form of paragraph 1 of the notice of motion subject to the deletion of the words, inception, creation and development in paragraph (a).

 

Keating v Radio Telefís Éireann & ors

[2013] IESC 22 (09 May 2013) McKechnie J

 

Motion for Discovery:

11. Against this background and having been refused voluntary discovery, the defendant, by notice of motion dated the 22nd October, 2007, seeks orders pursuant to O. 31, r, 29 of the Rules of the Superior Courts (“RSC”) requiring non-party discovery. From An Garda Síochána, R.T.É. seeks all documents referable to the plaintiff’s involvement in the unlawful importation of controlled drugs and to his possession of such drugs for sale, distribution or supply. From the Revenue it seeks in identical terms all documentation regarding their importation, but not regarding their possession; in addition and “without prejudice” to what was previously sought, it further requested:

 

“… all documentation referable to the detention or questioning of the plaintiff or both, by an officer of Customs and Excise at Ringaskiddy, County Cork on or about the 3rd June, 1998, including but not limited to any report concerning that incident”.

12. As part of its search for documentation it should also be noted that R.T.É. wrote to Coughlan Griffith & Company, the plaintiff’s solicitors, on the 3rd August, 2005, seeking voluntary discovery of five different categories of documents, with the first three being described as follows:
13. all statements made by the plaintiff as a witness in any or any intended criminal proceeding within this State;
14. all documentation regarding the nature and operation of “The Witness Protection Programme” and the plaintiff’s eligibility therefor, and participation in, allowing for redaction where strictly necessary to prevent identification of the undisclosed current residence of the plaintiff; and

 

3. all documentation relating to any and all criminal convictions of the plaintiff, whether incurred in this State or any other jurisdiction.

 

The remaining categories were relevant only to damages, if and when that issue should arise.

13. The response, by way of letter dated the 14th January, 2006, confirmed that voluntary discovery of categories 1 to 4 would be made within four weeks of that date. Category number 5 was not mentioned. Ms. Whelan subsequently wrote to the plaintiff’s solicitors on a number of occasions seeking confirmation as to whether or not the plaintiff intended to make discovery of category 5, to no avail. The time line as given by the plaintiff’s solicitors and subsequently extended, was not in fact adhered to, as the plaintiff’s solicitors apparently had some difficulty in obtaining instructions from their client. Further slippage followed. Eventually the defendant issued a motion on the 21st June, 2006 seeking discovery against the plaintiff in the same terms as previously sought. The Master of the High Court made the requested order on the 2nd November, 2006 and allowed a period of twelve weeks for due compliance. That order was not appealed. However, to date, R.T.É. has generally been dissatisfied with the plaintiff’s response and issued a further motion to have the proceedings struck out for failure to make proper discovery. That motion which was eventually struck out by consent has not materially altered the situation.

The High Court Judgment:

14. As above outlined, the High Court on the 23rd July, 2008, made an order for discovery against both the Commissioner of An Garda Síochána and the Revenue Commissioners in the terms sought, save that its ambit was limited to documents created prior to but not after, the 19th July, 2001, the date of the R.T.É. broadcast. The learned judge, having noted in his judgment that the plaintiff did not have in his possession such documents, was satisfied as to both relevance and necessity: he so concluded, in particular, having had regard to the nature of the allegations made by the plaintiff, even if such were viewed only in the context of his record and his admitted criminality. He rejected the argument that such discovery was oppressive. He dealt with the suggestion that in any event the “privilege”, which the Revenue would undoubtedly assert was a complete answer, by stating; “that if, plainly and without capacity to contradict, a document sought was privileged the court would refuse an application for discovery and would have regard to the reality of the situation”. It seems self-evident from his decision that in his view this was not such a case. Quite obviously it remained open to the non-parties to claim privilege in the normal way if they so wished. As that stage had not been reached he quite correctly saw no reason to decide on the competing public interests at issue: the administration of justice versus crime fighting and confidential communications intra officials and between officials and informers. He was therefore satisfied to make the order as mentioned.

Appeal:

15. The Commissioner of An Garda Síochána has not appealed the aforesaid order and accordingly, on his behalf the required affidavit was sworn on the 22nd December, 2008. In the First Part of the First Schedule there is one document disclosed, which is a two page custody record relating to a detention of Mr. Keating on the 27th of June, 1997. In the Second Part of that Schedule six documents are identified over which privilege is claimed. This claim is supported on the basis that such documents are of a sensitive and confidential nature, and also that they refer to sources of garda intelligence. It is further said that the disclosure of these would be damaging to the detection and prevention of crime as they would reveal some the confidential working practices and techniques of the force. Finally it is also stated that such disclosure would potentially put at risk the safety and lives of the persons referred to therein. Accordingly, their content should be preserved and their detail protected.

 

16. It should be noted that this generalised justification applies to all documents so identified: in addition, legal professional privilege is also claimed in respect of two of these documents. As is evident from what has previously been stated, the validity of the privilege objections, as raised by this non-party is yet to be determined.

 

17. On the 21st day of November, 2008, the Revenue appealed against the said High Court order on fourteen grounds. These may be grouped into the following categories, all suggesting that the learned judge, in a variety of ways, erred in law or in fact, or in combination of both:

 

(i) in failing to hold that, as R.T.É. wished to explore the relationship between the plaintiff and An Garda Síochána, there was no basis for making an order against the Revenue or at least, none for doing so prior to discovery being exhausted against An Garda Síochána and the plaintiff;

(ii) in holding that the documents sought were relevant and necessary and that the criteria for third party discovery had otherwise been satisfied;

 

(iii) in failing to have due regard to the fact that the documents sought would be subject to a privilege plea;

 

(iv) in failing to pay any or any due regard to the competing interests involved in such a claim, in particular that referable to the sensitive and confidential nature of the information requested;

 

(v) in failing to find that R.T.É.’s move was merely a fishing exercise to reinforce justification for the upcoming action; in any event the discovery order was overly broad and oppressive; and

 

(vi) in failing to exercise his discretion properly and refuse the order sought.

 

 

Appellant’s Submissions:

18. The legal submissions filed in support of the appellant can conveniently be understood in the context of the affidavit evidence sworn by Mr. Brian Smyth, an Assistant Principal with the Central Intelligence and Drugs Enforcement Branch of the Revenue’s Customs Service, in opposing the High Court application, in which he also draws on the affidavit filed, for a similar purpose, by the Commissioner of An Garda Síochána. Before dealing with that however, an overview of what the Revenue factually says.
19. It is stated by the Revenue firstly, that it has a shared competence with the gardaí in the enforcement of drug legislation and to that end, has a deep interest in information gathering and surveillance. Trust, confidence and cooperation are critical for the effective functioning of this inter-unit responsibility. Secondly, whilst the actual existence of material falling within the parameters of what is sought is not denied, the same was obtained in confidence and any forced disclosure would seriously impact on the free flow of such information, as trust is the vital commodity underpinning such arrangements. Therefore, access to such documents would gravely prejudice the success of both agencies in this regard. Thirdly, it further says that the force of this argument is enhanced by the support which it receives from the affidavit of the Commissioner which it also relies upon.

 

20. In his affidavit, which like that of Mr. Smyth’s was sworn prior to the High Court hearing, Chief Superintendent Cloonan informs us that the plaintiff is a participant in the Witness Protection Programme and that such programme is designed to deal only with matters of the highest security and to provide protection for those admitted, who invariably face a serious threat to their lives. For such programme to function effectively there must be full trust, confidence and cooperation between all involved: this demands that the identity of an individual who participates in the Programme should remain absolutely immune from disclosure, at all costs.

 

21. The Chief Superintendent goes on to say that securing an unrestricted flow of confidential information between statutory agencies with which the gardaí have a relationship in their fight against crime, is essential: if trust should break down, that line of vital communication would be hampered. It is thus critical that the arm of discovery should not extend in the far-reaching way as now suggested by the plaintiff.

 

22. Furthermore, he says that “there is little to be gained and in fact there is much to be lost”, should the Commissioner be directed to make non-party discovery where a claim for privilege will be asserted, and where that claim most likely will be upheld by the courts. In such circumstances therefore, this discretionary remedy should be refused.

 

23. Anchoring itself firmly within this setting, the Revenue submits that the trial judge miscalculated the competing interests in play and should have assigned to those advanced on behalf of the public – the prevention, investigation and prosecution of serious crime, including the agency’s methodology, tactics and procedures – far greater weight than what he did. To produce, even to list by description the requested documents, would prejudice the functioning of the Customs & Excise office in this important area, thus discovery from the outset and as a matter of principle should be refused (Director of Consumer Affairs and Fair Trade v. Sugar Distributors Ltd. [1991] 1 I.R. 225(“ size=”2″ face=”Verdana”>Director of Consumer Affairs”); Foley v. Bowden & Anor. [2003] 2 IR 607 (“Foley”); and McLoughlin v. Aviva Insurance (Europe) & Anor. [2012] I.L.R.M. 487).

 

24. While acknowledging that the issue of privilege does not, as such arise, it is nevertheless submitted that as non-party discovery is a discretionary matter, the Court, in light of the privilege plea which is almost bound to succeed, should terminate the proceedings, even at this stage. To do otherwise would ultimately be pointless: see Corscadden v. BJN Construction Ltd. & Anor. [2007] I.E.H.C. 42.

 

25. The Revenue also states that the raison d’être for R.T.É.’s application is simply to buttress its defence inter alia of justification for the forthcoming trial, a purpose which cannot justify a general trawl for relevant documentation. Hannon v. The Commissioner of Public Works & Ors. (Unreported, High Court, McCracken J.) 4th April, 2001 is cited in support.

 

26. On the vitally important question of “necessity”, it is asserted that such has not been established for a number of reasons: firstly, R.T.É. has not disclosed what material it already possess relating to Mr. Keating’s activities; secondly, the correct respondent to such a request would be An Garda Síochána, as it is the particular relationship between it and Mr. Keating which is in issue and not the Revenue’s relationship with him; thirdly, if R.T.É. succeeds in rebuffing the claim of privilege as advanced by An Garda Síochána, the documents then obtainable will render the application against the Revenue moot; fourthly, equally if R.T.É. fails on this issue, it is also most likely that it would fail in its application against the Revenue, thereby once again rendering the application moot; and lastly, the plaintiff himself may be the depository of such documents.

 

27. Finally it is said that the order as drawn is overly broad (McDonagh v. Sunday Newspapers Ltd. [2005] 4 IR 528 (“McDonagh”)) and is oppressive in nature.

 

Respondent’s Submissions:

28. The respondent to this appeal counters that the submissions of the Revenue Commissioners as outlined, are based on a misunderstanding of its application, in many respects. Firstly it must be pointed out that discovery is sought not simply to establish the nature of the relationship in question, but more acutely, to identify the limits of that relationship, so that the criminal activities of the plaintiff can be appropriately positioned. Secondly, as these illegal activities are entirely at odds with the Revenue’s role in drugs law enforcement, it cannot be heard to argue that it is indifferent to the controversy in question, or that it might not have documentation pertaining to these said activities. Evidently, it is part of its function to have such documentation. Furthermore, as the June 1998 questioning is not denied nor is the compilation of the subsequent report, it is untenable to claim that An Garda Síochána should be the only party to the discovery application, particularly now in light of its discovery affidavit.

 

29. With regard to the objection based on an alleged trawling exercise, R.T.É. firmly rejects this: it says that it is unnecessary to disclose the full extent of the justification evidence which it has, it being sufficient to point to what the pleadings have already disclosed. In addition it seeks to distinguish McDonagh on the basis that a simple plea of justification was raised in that case, with effectively no particulars of any kind being furnished before the discovery application was moved. Furthermore, it is entirely dismissive of the “oppression” point, particularly in light of the Gardaí’s discovery affidavit dated the 22nd December, 2008, which lists a total of only seven documents, six of which it claims privilege over. Given their similar roles in the investigation of drug trafficking, it is difficult to see any merit whatsoever in this argument. Moreover, given the specific and precise category of document sought – namely that relating to the questioning of Mr. Keating by a Customs Excise officer on the 3rd June, 1998, and the subsequent report – it cannot be argued with any credibility, as is attempted, that such is a randomised chase for documentation.

 

30. It is also submitted that an assertion of privilege in itself does not in any way exempt a party or a document from the discovery process: if an order for discovery is made, the document has to be listed in the affidavit in the normal way but, if relevant and applicable, privilege can be pleaded in respect of it (Haughey & Ors. v. Moriarty & Ors. (Unreported, High Court, Geoghegan J.), 20th January, 1998 (“Haughey”) at p. 10). While there can be circumstances where a claim of privilege can defeat an application for discovery, such would be very much an exception to the general rule and can only arise in very limited circumstances, which do not exist in this case. In any event, where such a plea is made, the onus lies on the party so asserting to establish it: such is not achieved by simply relying on a general public interest claim in doing so. Whilst the appellant expresses general concerns for inter-agency co-operation and for the free exchange of information and also mentions the effectiveness of the Witness Protection Programme, it does not outline how the documents sought might affect any of these matters. Moreover, it is for the courts, not the executive to determine such an assertion (Ambiorix & Ors. v. Minister for the Environment & Ors. (No. 1) [1992] 1 I.R. 277 (“Ambiorix”); Breathnach v. Ireland & Ors. (No. 3) [1993] 2 I.R. 458 (“Breathnach”); Livingstone & Ors. v. Minister for Justice & Ors. (Unreported, High Court, Murphy J.) 2nd April, 2004; and Foley).

 

31. The respondent finally submits in this regard that while there are some differences between the criteria relating to inter- and non-party discovery, the essential elements remain the same, i.e. whether the documentation sought is both relevant and necessary. None of the additional factors highlighted by Finlay C.J. in Allied Irish Banks plc & Anor. v. Ernst & Whinney & Anor. [1993] 1 I.R. 375 (“Allied Irish Banks plc”) are relevant in the instant case. It is therefore said that the High Court, having properly identified the non-party criteria, correctly applied the resulting test.

 

Discussion – Conclusion:

 

The Decision Maker:

32. The primary submission articulated by the appellant in oral argument is one which, in essence, seeks to avoid the consequences of Murphy v. Dublin Corporation and The Minister for Local Government [1972] I.R. 215 (“Murphy”), and a host of later cases all of which endorsed, supported and followed that particular decision. In Murphy, as part of his challenge to the validity of a Compulsory Purchase Order, the plaintiff sought discovery of an inspector’s report prepared for the Minister under Art. 5(2) of the Third Schedule to the Housing Act, 1966. Such an application was resisted on two main grounds: firstly, that the document fell within a “class of documents” which should be withheld on public interest grounds; and secondly, that in any event disclosure should also be denied as the same would be contrary “to public policy and detrimental to the public interest and the public service”.

 

33. Underpinning this argument was the crucial submission that on so certifying the Minister, as part of the executive organ of government, should, as such and by reason of his own judgment, be allowed to withhold such document. That argument gave rise to a central issue in the case which Walsh J. characterised as follows:

 

“[t]he present claim of privilege is that in a civil action the executive organ of government may by its own judgment withhold relevant evidence from the organ of government charged with the administration of justice and engaged in the determination of the rights of the litigants, and that this may be done when the claim of privilege is made on either or both of the grounds already mentioned” (p. 233 of the report).

34. The Court emphatically rejected this contention on constitutional grounds, holding that it was solely for the judicial power, as part of its exclusive competence in the area of administrating justice, to make such judgment. It was therefore impermissible to allow any other body or entity to embark upon such an inquiry or to reach such a decision.
35. Several years later the Supreme Court was asked to revisit Murphy: it did so in Ambiorix, but rejected any alteration to the stated principles, which Finlay C.J. (not by way of expansion or qualification), summarised at p. 283 as follows:

 

“1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in the courts set up under the Constitution.

2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.

 

3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.

 

4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the Government.

 

5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.”

 

36. In the implementation of these principles the following practice has developed:

(i) in general, where competing interests conflict the court will examine the text of the disputed document and determine where the superior interest rests: it will carry out this enquiry on a case-by-case basis;

(ii) this exercise may not always be necessary. On rare occasions, it may be possible for the court to come to a decision solely by reference to the description of the document as set out in the affidavit; that is, without recourse to an examination of the particular text of the document itself (Breathnach p. 469);

 

(iii) in all cases however (and this is the crucial point) it will be for the examining court to both make the decision and to decide on what material is necessary for that purpose; and finally

 

(iv) in performing this exercise, no presumption of priority exists as between conflicting interests.

 

37. As can therefore be seen, as a result of this constitutional position, which is mandated by the separation of powers and which permits of no exception, it is for the courts alone to resolve, in a justiciable setting, any conflict or tension which may arise between the public interest in the administration of justice on the one hand, and the public interest, howsoever articulated, which is advanced as a ground for non-disclosure of documents on the other. That being so, neither the Executive nor any other person can arrogate to themselves the power to make a decision such as the one in issue in this appeal. If it were otherwise, it would be, in the words of McCarthy J. in Ambiorix (p. 289) “to lessen or impair judicial sovereignty in the administration of justice”. Such an occurrence in fact would in itself be inimical to the common good as the public also has a vital interest in the role which this organ of government is committed to perform under the Constitution.
38. Given the complexity of modern government, at both national and local level, it is no surprise to see that many different forms of public interest, asserted in support of the effective functioning of the public service, have been offered as a defence to disclosure requests. Some of these include:

 

(i) the conduct of an investigation into the affairs of Bord na gCón (Fitzpatrick v. Independent Newspapers and Anor. [1988] I.R. 132;

(ii) the making of a complaint to the Director of Consumer Affairs, who has important law enforcement functions (Director of Consumer Affairs);

 

(iii) the general investigation and prevention of crime (Breathnach); and

 

(iv) the statutory functions of the Garda Síochána Complaints Board (Skeffington v. Rooney & Anor. [1997] 1 I.R. 22).

 

 

Whatever the particular interest relied upon, it should be noted that its terms must be formulated by reference to the issues in question and must be particularised in such a way that the courts can properly adjudicate thereon.

39. In applying the above principles it is clear that the Revenue’s first line of resistance to the application under appeal cannot be allowed to succeed, for if it was, such would seriously trespass upon what is the lone province of the court in determining the underlying dispute between itself and R.T.É. on the discovery issue. In effect, as a party to the motion, it seeks also to become a judge in the cause. This it cannot do: there is but one arbiter which has the authority to determine such a matter. That competence cannot be foreclosed upon and neither by design nor default can it be assumed by any other. This simply reflects what the Constitution ordains. Thus, the only decision maker in this type of situation is the judicial power. Any other course would be to subvert the constitutional role of the courts, to distort the separation of powers and to step down the safeguards which these values seek to uphold. Accordingly, the suggested approach of the Revenue is incompatible with constitutional norms, as identified in the established case law and must therefore be rejected.

 

40. The position as outlined would only call for a different analysis if the extreme situation postulated in Murphy or one of equal gravity came to exist, in which event, an opinion from the executive branch, depending on circumstances, may have entirely different consequences. Walsh J., in the following passage at p. 234 made reference to this point:

 

“[a]gain, taking the example of the safety of the State, it might well be that the court would be satisfied to accept the opinion of the appropriate member of the executive or of the head of the Government as sufficient evidence of the fact upon a claim being made for non-disclosure or non-production, as the case may be, on that ground. I have referred to non-disclosure and non-production as distinct matters because in certain circumstances the very disclosure of the existence of a document, apart altogether from the question of its production, could in itself be a danger to the security of the State.”

However, the learned judge quickly added that such was not the case in Murphy and therefore it was “unnecessary to deal further with this aspect of public interest” (p. 234).

41. This particular issue was also touched upon in Ambiorix by Finlay C.J. who, having clearly read the above passage as confining such cases to those relating to the security of the State, added the following:

 

“I would emphasise that the facts of the instant case on the submissions of counsel for the defendants quite clearly do not introduce any such question of the safety of the State, such as is dealt with in this passage, and I would, as did Walsh J., prefer to leave over further consideration of that particular issue until it arises for decision in a case” (p. 284).

It was therefore in his opinion not necessary to further develop the point.

42. Likewise, it is not my intention to do so, but may I be permitted to make but one observation on what the situation would be if the type of threat referred to should come to pass. It is that the public interest, in our institutional structures and their functioning, in the integrity of citizens, as individual persons and as a collective body, in the security of homes, property and other possessions, or in whatever particular area should immediately be under peril, would have to be evaluated by reference to the circumstances actually presenting and be judged against the public interest in ensuring that the rule of law, in its full judicial sense, continued to afford true and meaningful protection to all. As with the former types of public interest, the latter is likewise crucial to the safety and security of the State. That said however, as such matters do not fall for consideration in this case, like Walsh J. in Murphy and Finlay C.J. in Ambiorix, I too would defer any further discussion of State safety until the issue should actually arise.

 

43. Accordingly, as the Revenue has not advanced any further argument in support of its first submission, this ground of appeal must fail.

The Privilege Plea:

44. By a separate and independent route, the apellant has urged that the same conclusion should be arrived at, on the basis that its intended claim for privilege is bound to succeed and accordingly, to force the creation of a discovery affidavit would be an exercise in futility. By means of this argument, founded on a public interest claim said to be closely associated with its role and responsibility in drug enforcement and information sharing, it seeks to avoid making any affidavit. Such proposition, which is advanced as a complete answer to the application, is of course made at the first step of the process, namely disclosure as distinct from production. Whilst it is acknowledged that this is not the norm, nonetheless it is said that this is a suitable case for the adoption of such a procedure.

 

45. It is not suggested by the Revenue that by simply asserting a claim for privilege, a person, either a party or non-party to litigation, is thereby excluded from the discovery process: that is not and never has been the situation, nor is it stated to be. Accordingly, the normal Rules of Court apply which means that all relevant documents must be listed in Part Two of the First Schedule, if privilege is sought in respect of them. Having done that, the nature both of the asserted privilege and of the document the subject thereof, must be sufficiently particularised so as to permit the court to evaluate the claim. Generalised, non-specific details will not suffice: O’Brien v. Minister for Defence & Ors. [1998] 2 I.L.R.M. 156 at p. 159. In the vast majority of cases, it is only via this procedure that the privilege issue will be determined.

 

46. That being said however, there is also no doubt but that on a discovery motion the court has an inherent jurisdiction to refuse the application on the basis that its entire purpose, namely access to relevant evidence capable of aiding or defeating a particular claim, can never be achieved in the face of a privilege plea which inevitably must succeed. Before holding however that the normal process can be abridged in this way and that privilege can ground a refusal for a discovery order as distinct from an inspection order, the court will have to be satisfied that such plea permits of no other possible result. For if it should or might, the court will not refuse to grant a discovery order on such grounds. To view the situation otherwise would be to conflate distinct steps in a two-tier process which involve addressing different questions and determining different issues. Accordingly, when the matter is raised at this stage of the process, the first enquiry must be to determine whether success on the plea is unavoidable. It is only if it is, that an affidavit as to documents will not be required.

 

47. This view of the process is not in any way inconsistent with the decision of Geoghegan J. in Haughey. In fact the observations of the learned trial judge at p. 10 of the judgment are entirely supportive of what should normally be done. As it happened in that case, because of the great urgency involved, the two stages of the process were merged into one with the agreement of all parties; who to that end made available for the hearing all relevant documents, appropriately described and particularised. The case therefore, as the trial judge himself said, is an exception to what will routinely happen.

 

48. When examining the factual side of the instant case in the context of these principles it is clear that I should refrain from expressing any view more than what is necessary to deal with the particular point, for to do otherwise may risk pre-empting the ultimate outcome of the privilege issue. In light of that I refer only to the following matters:

 

(i) R.T.É. has not sought disclosure of any documents from either the Revenue Commissioners or from An Garda Síochána referable to the Witness Protection Programme, or the plaintiff’s participation in it;

(ii) what is requested is documents which were generated in or about 1995/1997 to coincide with the plaintiff’s criminal activities. As such, it is difficult to see how they could have any relevance to his participation in the Programme which only commenced in 2001;

 

(iii) as the plaintiff has never given State evidence in any criminal trial of third parties arising out of these activities, it must be very doubtful at this remove if he ever will;

 

(iv) it must be at least arguable, or perhaps even likely, that the expressed concerns regarding the exchange of information may be overstated as the relevant events occurred almost 15 years ago;

 

(v) further it seems a surprising proposition in law, that the sharing of information with third parties would, by reason of that fact alone, insulate such information from disclosure; if that was the case, such a simple expedient could have very far-reaching consequences for the administration of justice;

 

(vi) in any event it is quite likely that the Revenue may have at least some documents, generated otherwise than by the exchange of information with other agencies; it has not denied that this may be the case and has not specifically put in issue the 1998 encounter; and finally

 

(vii) it seems to be established law that the furnishing of documents in confidence does not of itself make them privileged: In re Kevin O’Kelly [1974] 108 I.L.T. 97 and Burke & Ors. v. Central Independent Television plc [1994] 2 I.R. 61.

 

49. In addition, no reason particular to its work or prejudicial to its activity is prayed in support of this submission – certainly nothing of significance which cannot be argued and fully ventilated at the inspection stage. It is therefore difficult to see what justification there is for circumventing the detailed rules and the well-established practices which have regulated the discovery process for many years.
50. In light of the above therefore and in the absence of knowing how the Revenue will formulate a privilege claim in respect of what documents they might have, I am far from satisfied at this stage of the procedure that any privilege so asserted will inevitably succeed. Or to put it differently, I cannot say that R.T.É. will ultimately exit this process empty-handed. Accordingly, this ground of appeal must also fail.

 

51. As is evident from what previously appears, the application before the High Court was for third party discovery and therefore O. 31, r. 29 RSC applies. It is unnecessary to recite that rule, it being sufficient to say that by reference to the issues raised in this appeal, it is necessary for the moving party to establish:

 

(i) that the Revenue has or is likely to have in its possession or power documents falling within the parameters of the type of documents sought;

(ii) that such are relevant to an issue or issues in the action;

 

(iii) that an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and

 

(iv) that any order made, by reference to its scope, is not oppressive.

 

See Allied Irish Banks plc.

In addition it should be noted that the making of such an order is at all times a discretionary matter.

 

52. As is clear from the above the Revenue Commissioners have not denied the existence of documents of the type sought to be discovered nor have they denied the occurrence of the June, 1998 interrogation or the creation of specific documents relating to that incident. Therefore, the requirement specified at para. 51(i) has been satisfied. Consequently, the next question is whether the test of “relevance” has been satisfied, followed closely by the issue of “necessity”.

Relevance and Necessity:

53. It is well established that documentation sought by discovery “[has] to be relevant to the matter in issue” (Stafford v. Revenue Commissioners (Unreported, Supreme Court, O’Flaherty J., 27th March, 1996). The question of what documentation so qualifies was considered by Brett L.J. in the well-known case of Compagnie Financière et Commerciale du Pacificque v. Peruvian Guano Company (1882) 11 Q.B.D. 55 at p. 63 where he stated that:

 

“[i]t seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have to put in the words ‘either directly or indirectly,’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these tw[o] consequences” (sic).

54. This statement was quoted with approval by Kenny J. in Sterling-Winthrop Group Ltd. v. Farbenfabriken Bayer A.G. [1967] I.R. 97, at p. 102 and subsequently was followed on multiple occasions in this jurisdiction. It was quoted with approval again, as recently as 2003, as remaining “the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought” (Fennelly J. in Ryanair plc v. Aer Rianta c.p.t. [2003] 4 IR 264 (“Aer Rianta”) at p. 275). In short therefore, relevance will be established not only where the documentation sought would be evidence of some issue, but also if what is sought can or may advance one’s own case or damage that of one’s adversary, including if it may lead to a line of inquiry which may result in either.
55. In accordance with this test and on any understanding of the issues as pleaded (paras. 4, 5, 8 and 10 supra) – such being the relevant issues and not those in the submissions – it is in my view an inescapable fact that the documents sought readily meet this criteria and therefore must be considered relevant.

 

56. On the question of “necessity” some observations of a general nature may firstly be made. As was pointed out by Fennelly J. in Aer Rianta, once documents are found to exist which are relevant, it seems unfair to deprive a party of their availability to either advance his case or to rebuff that which he is expected to meet. As a sense of individual justice, this seems undoubtedly correct, as it does also in serving the course of justice. Although relevance and necessity are separate concepts, there is a close relationship between the two. Hence, once the former criteria is established it will most usually follow that the documents in question can also be regarded as being necessary, i.e. necessary within the meaning of O. 31, r. 12(3) RSC which also applies to non-party discovery. Indeed, this point was made by Geoghegan J. in Taylor v. Clonmel Healthcare Ltd. [2004] 1 IR 169, and echoed in very much the same language by Murray J. in Framus Ltd. & Ors. v. CRH plc & Ors. [2004] 2 IR 20. An important indicator in this regard is whether the documents requested are required for the fair disposal of the issue to which they are addressed. If they are, it is most likely that they will be considered necessary.

 

57. This issue has also been argued under a number of specific headings, many of which can quickly be disposed of. It is clear from the accepted position of the plaintiff that he does not have in his possession, or have the power to acquire any documents of the type sought in the discovery motion. That possible alternative source is therefore not available. The position with An Garda Síochána, as it presently stands, is that the only document discovered over which privilege is not claimed is a custody record of the plaintiff’s detention in June, 1997, which is unlikely to be of much value. Whether that will be supplemented by any further documents will have to await the determination of the privilege issue. However and notwithstanding the outcome, whatever it might be, it is difficult to see why in principle discovery should not have been sought against the Revenue given its frontline involvement in drug enforcement and its cooperative engagement with An Garda Síochána in that regard. Whilst there is a possibility of some overlap in the documentation which both non-parties might have, nonetheless, even if this is the case, which is anything but clear, that factor in itself could not be a bar to seeking third party discovery against more than one non-party. In addition, I am satisfied as a matter of probability that whether ultimately obtainable or not, both non-parties are likely to have some documents independent of each other which are relevant to the justification plea. Consequently, I believe that the application against the Revenue is justified and that properly viewed it must be looked upon, free from the constraints of the Revenue’s position.

 

58. In this case therefore, there is no doubt in my mind but that at both a general and specific level, the requested documents comfortably satisfy the well-established approach to this necessity issue.

Purpose of Discovery:

59. In several of ways the Revenue has argued that this application is abusive, either as a fishing exercise or as a trawl search for any evidence to support the justification plea, in circumstances where R.T.É. has not disclosed what material it already possesses to stand over that plea.

 

60. Discovery has been described as “an instrument to advance the cause of justice” (O’Flaherty J. in Allied Irish Banks plc at p. 396). Its purpose is to aid a party in the progress of litigation: it is not designed to identify grounds capable of establishing a cause of action, i.e. it cannot be used to enable a person to plead a cause of action or a defence which he is not otherwise in a position to plead. Flaherty J., by reference to authority and principle, has stated so unequivocally in Galvin v. Graham-Twomey [1994] 2 I.L.R.M. 315 (“Galvin”). In that case the plaintiff, the vice-principal of a primary school, claimed damages inter alia for libel and for a breach of her constitutional right to her good name against another teacher at the same school. In the Civil Bill it was alleged that the defamatory allegations were contained in letters which had been sent by the defendant to third parties. The plaintiff did not have possession of and in fact had never seen the letters of which she sought discovery. In dismissing the plaintiff’s appeal he held that in suing for defamation a person must set forth in the pleadings the details of her complaint with some particularity. A plaintiff “cannot be permitted to launch his proceedings and then hope by discovery to be able to amend his pleadings and thereby make his case” (at p. 320). In such circumstances the attempted use of the discovery process was inappropriate and the defamation aspect of her claim was stuck out.

 

61. This is in keeping with the strong dicta of the courts that mere fishing expeditions are prohibited: Finlay C.J. stated in Bula Limited (In Receivership) & Ors. v. Crowley & Ors. [1991] 1 I.R. 220 that “before making any order for further discovery [a court] … should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation” (p. 223). Similar comments were made in the case of Aquatechnologie Ltd. v. National Standards Authority of Ireland & Ors. (Unreported, Supreme Court, Murray J., 10th July, 2000), who noted that:

 

“documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.”

62. From these cases and disregarding actions for discovery, in respect of which see Megaleasing U.K. Ltd. & Ors. v. Barrett & Ors. [1993] I.L.R.M. 497 and Doyle v. Garda Commissioner [1999] 1 IR 249, it seems clear, at least in principle, that a sharp distinction exists between situations where a party, be he plaintiff or defendant, seeks discovery to support or advance his particular viewpoint and where such is sought for the purposes of making or formulating a claim which otherwise does not exist. In other words, discovery is an aid to further a viable action or defence, or an issue in either, but not a means in itself to establish one. Whilst in practice such a distinction may not always be self-evident, nonetheless, as a matter of principle it clearly exists. Therefore, any attempt to use the process purely to create a cause of action will be regarded as abusive. Galvin, both conceptually and in practice, amply demonstrates this point.
63. This issue may arise at two distinct points in the litigation process, prior to the commencement of the trial itself. The first may relate to an allegation by the plaintiff that the defendant, in his defence, has failed to particularise the justification plea or to outline the material facts upon which it is based. That is not the situation in this case. The second, as in the instant case, is where discovery is sought to support such a plea. In order to avoid breaching the fishing prohibition, to use an old but apt phrase, it is necessary for the moving party to disclose some information upon which the plea is based. Whether such appears in the defence document or in the particulars matters not: nor does the means by which such information had been acquired. Provided the court is satisfied that some such evidence exists, that will be sufficient. The court does not and should not evaluate its strength as a defence plea. This is not its role on such an application. Nor is it necessary for a defendant to disclose the full extent of what information he may have. He does not have to compromise his defence in this regard. Once it is shown that the plea can be supported, the discovery application cannot be regarded as a fishing exercise or as one whose sole purpose is to establish a justification plea: rather, its proper characterisation in such circumstance, is one of aiding and supporting the material which already exists. This of course is the essence of what discovery is.

 

64. In this case, as appears from the documentation which is partly outlined elsewhere in this judgment, it is quite clear that the criminal activity to which the justification plea is addressed has been detailed and particularised. There can be no doubt but that all interested persons are fully aware of what this plea relates to. That in my view is quite sufficient to dispose of this argument. Therefore the application cannot be resisted on this basis. In addition, perhaps it is worth noting that this ground of objection is not that of the plaintiff but that of a non-party whose involvement is solely confined to the discovery application.

 

65. Finally, in my view, there is no substance in the argument that the order as drawn is oppressive. Firstly it is specific to a single individual; secondly it relates to particular conduct which has been clearly described; thirdly it is confined in time, by reference to the criminal activity as the start date and by reference to the express terms of the order as the end date; fourthly the interrogation issue could not be more specific. In addition, given the information supplied the Revenue will have no difficulty in identifying the issues. Lastly, a simple reference to the affidavit of the Commissioner of An Garda Síochána immediately demonstrates the lack of substance to this point.

 

66. For these reasons, I would dismiss this appeal and note that if an issue of privilege should arise it can be dealt with in the normal way.

 

 

Edward Keating v Radio Telefis Eireann (No.2)

[2013] IEHC 393 (29 July 2013)JUDGMENT of Kearns P. delivered on the 29th day of July, 2013

This is the defendant’s motion for inspection of discovery against the first named non-party, the Commissioner of An Garda Síochána, arising out of proceedings initiated against the defendant by the plaintiff seeking damages for defamation, negligence, breach of duty and breach of both Constitution and Convention rights on foot of a Prime Time programme broadcast on the 19th July, 2001, investigating the importation of drugs into this jurisdiction and their subsequent possession for sale and supply, in which the plaintiff asserts, inter alia, that he was clearly identifiable.

BACKGROUND FACTS

On the 19th July, 2001, the defendant broadcast an episode of the current affairs programme, “Prime Time”, investigating the importation of drugs into this jurisdiction in the years 1995 and 1996, their subsequent possession for sale and supply and the persons allegedly involved in such criminal activities.

 

As the plaintiff’s identity was clearly visible in the promotional “trailers” publicising the programme which were aired prior to the programme’s transmission, An Garda Síochána requested the defendant to remove images and references to the name of the plaintiff. Consequently, on the night the programme was broadcast, the following announcement was made immediately prior to its airing:

 

“[f]or reasons of security it has been deemed necessary to remove at late notice images and references to the name of one of the key individuals named in tonight’s programme”.

Arising from this broadcast, the plaintiff initiated proceedings against the defendant seeking damages for alleging that the programme had inferred that, not only was he a Garda informer and “criminal insider”, but also participated in unlawful criminal activities for his own benefit and, therefore, had “served two masters”. The plaintiff further alleged that the programme had identified him by name, with his image partially visible, notwithstanding the fact that the defendant had received a request from the first non-party to remove images of and references to the name of the plaintiff.

The defendant has admitted the broadcast in question, but has pleaded, inter alia, justification for the aforementioned allegations.

 

By notice of motion dated the 22nd October, 2007, the defendant sought non-party discovery pursuant to O. 31, r, 29, from both non-parties, but specifically from An Garda Síochána of the following documents:

 

“(i) All documents in the possession of An Garda Síochána concerning the plaintiff’s involvement in the unlawful importation of controlled drugs into the State, or his possession for sale, distribution or supply of such controlled drugs.”

On the 23rd July, 2008, the High Court (McCarthy J.) made an order for discovery (following an appeal against the refusal of the Master of the High Court, dated the 18th December, 2007, to grant discovery in the terms sought) against the Commissioner of An Garda Síochána in the above terms but limited its scope to documents created prior to but not after, the 19th July, 2001, the date the Prime Time programme was broadcast. The second named non-party appealed the order as it pertained to them to the Supreme Court, in which McKechnie J. gave judgment of the court on the 9th May, 2013. In Keating v. Radio Telefis Eireann [2013] IESC 22, the court held that the contention that disclosure would be detrimental to public policy and the public interest was a matter for the judiciary to evaluate, only they alone could weigh up the tension which may arise between the public interest in the administration of justice and any other competing public interests. The court ultimately dismissed the appeal, finding that the disclosure granted was not oppressive and rejected the argument for non-disclosure based futility as the motion for privilege was bound to succeed as the court was not convinced that such an argument would inevitably succeed and held that should an issue of privilege arise, it could be dealt with in the normal way.

The Assistant Commissioner of An Garda Síochána, Kevin Ludlow, swore an affidavit of discovery on the 22nd December, 2008, in which he listed six categories of documents over which privilege is asserted, two of which on the grounds of legal professional privilege and the remaining four categories of documents over which privilege is claimed as follows:

 

1) Letter from Deputy Commissioner Conroy to the Assistant Commissioner Eastern Region dated the 26th March, 1999 enclosing a 1 page report of Deputy Commissioner Conroy dated the 18th March, 1999 in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork and a 4-page Report of Assistant Commissioner T.A. Hickey dated the 4th January, 1999 to Deputy Commissioner, Operations also in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork.

2) 1 page printout from Cor_Reg (computerised correspondence register) from Private Secretary, Commissioners Office in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork.

 

3) 12 pages of diary entries from Detective Chief Superintendent T.A. Quilter.

 

4) 13 pages of notebook entries from Detective Chief Superintendent T.A. Quilter.

 

Public interest privilege is claimed in respect of each category of documents and is in the following identical terms:

“Public Interest Privilege is claimed in respect of this document on the basis that it concerns sensitive and confidential activities and practices of An Garda Síochána in the prevention and detection of crime and its disclosure would disclose key Garda intelligence and the sources of same potentially putting at risk the lives and wellbeing of the individuals referred to therein.”

The defendant served a notice to produce documents, pursuant to O. 31, r 18, dated the 28th April, 2009, to produce for inspection the four categories of documents referred to above. The first named non-party replied by letter dated the 1st May, 2009, stating that it was not prepared to waive its claim of privilege over the said documents. Consequently, by notice of motion, dated the 24th September, 2009, the defendant issued a motion for inspection of the above categories of documents.

In the affidavit grounding the above motion, Ms. Anne McManus, solicitor for the defendant, submitted that the following factors were relevant to the balancing exercise now facing the court. Firstly, that as the events, the subject of which the documents relate, occurred over a period of two years in 1995 and 1996, some thirteen years prior to the issuing of the motion for inspection, “both the confidentially and sensitivity of any given activities or practices of An Garda Síochána in the prevention and detection of crime must decrease as the conduct of those activities or practices recedes further into the past”.

 

Secondly, she contended that no person was ever charged or tried with any offence arising out of the investigation of those events and questioned whether any investigation of same remained open.

 

Thirdly, she submitted that, in the absence of any reprisal against the plaintiff in the intervening period, the possibility of disclosure of documents from 1995 and 1996 leading to such recourse must be regarded as non-existent.

 

Fourthly, she further contended that the only suggested source of Garda intelligence was the plaintiff himself who had already publicly identified himself as a Garda informant for the purpose of these proceedings, thereby no other Garda sources or other other individuals could be put at risk. Furthermore, by revealing his identity as a Garda informant, it was submitted, the plaintiff had waived the informer privilege that might have otherwise attached to any such document.

 

The solicitor for the plaintiff, Mr Tom Griffith, replied by affidavit, dated the 15th February, 2010, in which he averred that shortly after the Prime Time programme was broadcast, the plaintiff had been admitted to the State’s Witness Protection Programme and stating his belief that the threat to the plaintiff continued to be “very real, grave and ongoing” from a criminal gang in Cork about whose drug-importation and distribution operations he had informed on to An Garda Síochána.

 

On the 12th April, 2010, the solicitor for the defendant, Ms. McManus, replied, pointing out that since the events in question, in 1995 and 1996, and the transmission of the Prime Time programme in 2001, there had been no evidence of any threat being made to the plaintiff. She further maintained that an order for inspection of the documents sought could not disclose the plaintiff or his family’s whereabouts since they pre-dated the plaintiff’s admission to the Witness Protection Programme.

 

By affidavit dated the 6th May, 2010, Chief Superintendent Brendan Cloonan, on behalf of the first named non-party, expanded upon the first named non-party’s claim of public interest privilege, asserting that not only the trust and confidence of all participants in the Witness Protection Programme would be affected if the documents sought for inspection were disclosed, but inter-agency co-operation between the first non-party and second non-party could also be affected by such disclosure.

 

He further stated that the plaintiff and his family were in fact no longer participants in the Witness Protection Programme, but that the threat to his life was being addressed by “certain future commitments” from the Gardai, including the facilitation of his return to the State on two instances in 2004 and 2007.

 

There followed a number of lengthy and detailed affidavits between the solicitors for the plaintiff, defendant and first named non-party, including affidavits from the plaintiff and his wife, as to the precise status of the plaintiff under the Witness Protection Programme.

 

On the 17th July, 2012, in an affidavit in response to the above affidavits, Ms. Trish Whelan, a solicitor for the defendant, asserted that, irrespective of the exact status of the plaintiff under the Witness Protection Programme, there could be no viable threat to his life created by making the order of inspection sought by the defendants, as there was no evidence in the pleadings or affidavits to provide any basis for his assertion that any of the documents sought could reveal his location.

 

On the 16th November, 2012, Detective Superintendent Liam King swore an affidavit on behalf of the first named non-party in reply, averring that the plaintiff was, in fact, no longer a participant on the Witness Protection Programme, having signed what is described as an “exit document” on the 25th September, 2003 (which the plaintiff maintains was a receipt for the €20,000 loaned to him by An Garda Síochána). Despite this, the plaintiff remained the subject of ongoing security arrangements which were put in place for him on each of his return visits to the State, and therefore his exit from the Witness Protection Programme could not be taken to mean that his life was no longer at risk.

 

Detective Superintendent King further averred that notwithstanding the above, his primary objection to the disclosure sought was that it would undermine the confidentiality of the Witness Protection Programme in general.

DECISION

The issue which arises for determination on the facts of this case is whether the first named non-party’s claim for public interest privilege in respect of the said documents can be upheld. It is settled law that where a conflict between public interests arises, it is for the court to decide which public interest is to prevail.

 

In Ambiorix Ltd. v. Minster for the Environment (No. 1), [1992] 1 I.R. 277, Finlay C.J. reiterated the principles that had been laid down in Murphy v. Dublin Corporation [1972] I.R. 215 as follows, at p. 283:-

 

“1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in the courts set up under the Constitution.

2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.

 

3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.

 

4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the Government.

 

5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.”

 

This test was applied by Keane J. (as he then was) in Breathnach v. Ireland (No.3) [1993] 2 I.R. 458, a case in which a claim of public interest privilege was relied on by the Director of Public Prosecutions to avoid discovery of communications from An Garda Síochána pertaining to the plaintiff’s arrest and detention. These communications had been made in circumstances where the investigating Gardai had believed such communications would be confidential. It was argued that it was in the public interest not to discover these documents as it was imperative that the confidentiality of such communications be maintained in order to ensure full disclosure by An Garda Síochána. Therefore, it was in the public interest not to discover these documents. Keane J. (as he then was) described the process the court should engage in, at p. 469:-

“[T]he court, as I understand the law, is required to balance the public interest in the proper administration of justice against the public interest reflected in the grounds put forward for non-disclosure in the present case. The public interest in the prevention and prosecution of crime must be put in the scales on the one side. It is only where the first public interest outweighs the second public interest that an inspection should be undertaken or disclosure should be ordered. In considering the first public interest, it is necessary to determine to what extent, if any, the relevant documents may advance the plaintiff’s case or damage the defendants’ case or fairly lead to an enquiry which may have either of those consequences. In the case of the second public interest, the various factors set out by Mr. Liddy must be given due weight. Again, as has been pointed out in the earlier decisions, there may be documents the very nature of which is such that inspection is not necessary to determine on which side the scales come down. Thus, information supplied in confidence to the gardai should not in general be disclosed, or at least not in cases like the present where the innocence of an accused person is not in issue, and authorities to that effect, notably Marks v. Beyfus (1890) 25 Q.B.D. 494, remain unaffected by the more recent decisions, as was made clear by Costello J. in Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225. Again, there may be material the disclosure of which would be of assistance to criminals by revealing methods of detection or combatting crime, a consideration of particular importance today when criminal activity tends to be highly organised and professional …”

On the subject of free communication between An Garda Síochána and the DPP, Keane J. stated at p. 472 that this was an important factor. He continued that:

“The extent to which that freedom might be inhibited by the knowledge that the documents furnished to the Director of Public Prosecutions may subsequently be disclosed in court proceedings is clearly a matter which has to be taken into consideration in determining whether the public interest in the particular case requires its production.”

While he noted that executive privilege had been eroded to some extent Keane J. observed that the position was different in respect of communications passing between An Garda Síochána and the DPP in light of the due weight that had to be given to the public interest in the prevention and detection of crime. He concluded in this regard at p. 472 that:

“The circumstances of the particular case must determine, in the light of the constitutional principles to which I have referred, whether an inspection should be undertaken by the court and whether, as a result of that inspection, production of any of the documents should be ordered.”

Although Keane J. (as he then was) ultimately refused the claim of public interest privilege in Breathnach on the facts pertaining to that case, the principles he endorsed were followed by Murphy J. in Livingstone v. Minister for Justice (Unreported, High Court, 2nd April, 2004). Rather than accepting a blanket claim of privilege based on the prevention of crime, Murphy J. considered the relevance of each category of documents sought and balanced the above competing interests on the facts of the case before him. He ultimately ordered discovery of some of the documents sought, noting that there was no “blanket ban” on ordering disclosure of the garda files and that (at p. 14), “police communications are not, as a class, privileged.”

Another decision, that of Foley v. Bowden [2003] 2 IR 607, concerned a plaintiff who sought to examine a garda witness as to payments made to the defendant in the course of his participation on the Witness Protection Programme. However, the Commissoner of An Garda Síochána resisted the application asserting that it would undermine the operation of the programme. The High Court upheld the objection, but, Keane C.J. allowed the appeal, and, following a close examination of the reality of the fears that had been expressed by the Commissioner concluded at p. 612 that:

 

“if it were the case that requiring the notice party, or whoever the appropriate officer may be, to attend before the High Court for the purpose of being orally examined as to any sums which may be owing the judgment debtor under that scheme and producing any documents relevant thereto, of itself would imperil the successful implementation of the scheme in the future, I would agree with the conclusions of the High Court Judge that the order should not be granted. It is not clear, however, that that would necessarily be the case. It does not follow that, because the relevant documents will be available at the hearing in the High Court, they must, in every instance, be produced for the inspection of the plaintiff or his legal advisors. On the contrary, if the officer objects to the production of any document on the grounds that its disclosure would not be in the public interest, the judge before whom the examination is being held can rule on the validity of that objection and, if necessary, can inspect the document himself or herself without its being furnished for inspection to anyone else. It may be that such an inspection may not be necessary and the very nature of the document may be such that the judge will be able to rule that its production would not be in the public interest and that the public interest in question is not outweighed by any legitimate interest of the plaintiff. Similarly, there should be no essential difficulty in the examination being conducted in a manner that does not disclose either the new identity or the new location of the defendant.”

The Ambiorix principles were referred to more recently by McKechnie J. in the appeal in this case referred to earlier (Keating v. Radio Telefis Eireann [2013] IESC 22), in which, noting that the following practice has developed, he stated at para. 36 that:

“(i) In general, where competing interests conflict the court will examine the text of the disputed document and determine where the superior interest rests: it will carry out this enquiry on a case-by-case basis;

(ii) this exercise may not always be necessary. On rare occasions, it may be possible for the court to come to a decision solely by reference to the description of the document as set out in the affidavit; that is, without recourse to an examination of the particular text of the document itself (Breathnach p. 469);

 

(iii) in all cases however (and this is the crucial point) it will be for the examining court to both make the decision and to decide on what material is necessary for that purpose; and finally

 

(iv) in performing this exercise, no presumption of priority exists as between conflicting interests.”

 

As noted above, there is a public interest in the prevention and detection and prosecution of crime. In this regard, it is necessary to determine to what extent, if any, the relevant documents may advance a party’s claim/defence or fairly lead to an inquiry which may have either of these consequences, when considering the public interest in the administration of justice.

The onus is on the party claiming privilege, in this case being An Garda Síochána, to prove that such privilege exists, and this burden of proof is not discharged by claiming that privilege attaches to a document by virtue of it being disclosed in confidence. Nor is it discharged by simply asserting a general public interest in withholding the relevant document. Any such plea of public interest privilege, as held by O’Malley J. in Gibb v. Minister for Justice [2013] IEHC 238 “must be evaluated by reference to the circumstances actually presenting”. However, once proven, the onus of proof shifts to the party challenging that privilege, in this case being RTE. Consequently, in determining whether privilege attaches to a document, the court will closely scrutinise any such assertion and decide whether any such claim will be upheld.

 

Therefore, taking the facts of the present case into consideration to determine whether the public interest privilege asserted by the Commissioner of An Garda Síochána should be upheld, this Court is obliged to have regard to the fact that the Commissioner is a non-party to these proceedings, and inspection is sought of these documents by the defendant to aid its defence of justification of allegations that are not connected with any act or omission on the part of the Commissioner. Moreover, it was the Commissioner who, in fact, requested the defendant to remove images and references to the name of the plaintiff in the interest of his safety and security. Furthermore, the categories of documents which have already been discovered, only came into existence in the course of the exercise by An Garda Síochána of its function in the prevention and detection of crime, a crucial function in the public interest.

 

In determining where the balance between competing public interests should lie, I am satisfied that it is not in the public interest to grant the relief sought in the defendant’s motion herein as to do so would undermine the protection, preservation and integrity of the State’s Witness Protection Programme. This was attested to by Chief Superintendent Brendan Cloonan in his affidavit dated the 6th May, 2010, on behalf of the first named non-party, in which he averred that the concerns of the first named non-party pertaining to the proper and effective functioning of the Witness Protection Programme do not diminish with the passage of time and are

 

“as relevant now as they were in 1995 or in 2001, going to the very heart of the work and methods of An Garda Síochána in the prevention and prosecution of crime. If the integrity of the programme is to be maintained it is essential that details of investigations and information provided in the course of such investigations remain completely confidential and this must be so whether or not a prosecution ultimately follows.”

Whilst I accept that neither the plaintiff nor his family are still participating in the Witness Protection Programme, there remains a considerable risk to the plaintiff’s safety, as highlighted by the efforts to which An Garda Síochána have gone to safeguard the plaintiff when within this jurisdiction. This was attested to, firstly by Chief Superintendent Cloonan, in his affidavit dated the 6th May, 2010, on behalf of the first named non-party, in which he averred that the threat to the plaintiff’s life was being catered for by “certain future commitments” from the Gardai, which included the facilitation of his return to this jurisdiction on two instances in 2004 and 2007, and more recently in February 2012, when the plaintiff returned to this jurisdiction for consultations with his legal advisors, as averred to by Chief Superintendent Liam King in his affidavit dated the 16th November, 2012.

I am equally satisfied that all aspects of the operation of the Witness Protection Programme need to remain confidential due to its ongoing nature, and adverse consequences would undoubtedly arise following disclosure of any confidential information pertaining to the programme itself and/or current and future participants on it.

 

I am further satified that to grant inspection of the documents already discovered would not be in the public interest as it would result in the disclosure of information of a confidential, sensitive nature relating to the practices of An Garda Síochána in the prevention and detection and prosecution of crime and potentially put at risk the lives and wellbeing of the individuals referred to therein.

 

I therefore refuse the relief sought in the defendant’s notice of motion.

 

Burke v Central Independent Television plc

[1994] 2 ILRM 161 Finlay CJ
This is an appeal brought by the defendant against an order made in the High Court by Murphy J on 21 October 1993 rejecting the defendant’s claim by way of objection to an order for discovery that certain documents were privileged and consequently ordering the production of those documents.

The action in which that order was made is an action by the plaintiffs claiming damages against the defendant for libel alleged to have been published by it by way of a television broadcast called ‘The Cook Report — Blood-Money’ transmitted by the defendant.

The learned trial judge in the course of a comprehensive and closely reasoned judgment delivered ex tempore set out three propositions of law as applicable to the defendant’s claim for privilege as made before him in the following terms:

First, that the courts in this jurisdiction and I believe the courts in the United Kingdom do not accept the concept of privilege from the production of documents based solely on a promise of confidentiality.

Secondly, that in this jurisdiction, journalists do not enjoy any special rights or privileges to protect their informants from disclosure. Thirdly, that the alleged or claimed privilege from production based on the possibility or even the probability that human life may be in danger has never been recognised in any reported decision of our courts.

The learned trial judge then continued to deal with the first of these two propositions of law developing them and setting them out in a manner which I am satisfied was correct. On those two issues he rejected the claim for privilege made pursuant to an asserted ground of promise of confidentiality or a journalist’s special privilege. The learned trial judge then dealt with the third proposition as follows at p. 11 of his judgment:

However serious the risk to life may be as a result of the production of the documents in question and however desirable it may be that such production should be avoided I think it must be recognised that the recognition of such a ground of privilege from production would be in no sense an extension or extrapolation of any existing known ground of privilege but the creation of an entirely new ground. Desirable though it may be, I do not think that this Court has the right or duty to create such a new category. In these circumstances, I would reject the defendant’s claim based upon a ground of privilege consisting of the possible danger to life due to the production of the discovered documents.

No submission was made to this Court seeking to overturn the learned trial judge’s view concerning the claim for the privilege of confidentiality or for a journalist’s privilege which had been asserted in the court below.

The submissions on this appeal were confined to the issue as to whether there was a right of privilege attached to documents the discovery of which might endanger human life and to the subsidiary question as to whether it was proper to seek to avoid that danger by discovering the documents on terms that they be made available to the lawyers representing the plaintiffs and not to the plaintiffs.

I have had the benefit of reading the judgment which is about to be delivered by O’Flaherty J in this case and I am satisfied that he has with accuracy and completeness set out the main features and contents of the television programme of which complaint is made by the plaintiffs and accurately delineated what would appear to be the main issues likely to arise in the action. He has also set out in considerable accurate detail the nature and general type of the documents in respect of which privilege has been claimed and the specific grounds on which that claim is made. I adopt all those matters and it is unnecessary for me to repeat them in this judgment.

Having considered these facts and documents and the submissions made to this Court on this appeal I have come to the following conclusions.

Having regard to the principles laid down by this Court in Murphy v. Dublin Corporation [1972] IR 215 and Ambiorix Ltd v. Minister for the Environment [1992] ILRM 209 the function of this Court in deciding the issues that have been raised on the facts and submissions put before it on this appeal is to resolve a conflict between two aspects of the public interest so as to perform the judicial function of deciding upon what evidence in the interests of justice the court should act in this case for the purpose of reaching a decision.

The two conflicting public interests are identified as follows:

(1) That asserted by the defendant is stated to be a public interest in protecting citizens of Ireland from the risk of death or bodily injury at the hands of terrorists.

(2) The public interest asserted on behalf of the plaintiffs on the other hand is the public interest in the administration of justice which requires that the plaintiffs should be entitled to the discovery they are seeking if this is necessary for the protection and vindication of their good names which is one of the constitutional rights owed to them by the State through its organs including the judiciary.

The risk of death and bodily injury to individuals as the result of the activities of terrorists is based on the affidavit and submissions of the defendant upon an assertion that the plaintiffs or some of them are members of the provisional IRA or are closely associated with members of the provisional IRA and would be likely to transmit to the members of that body information contained in the documents which could lead to attacks upon the persons identified in them. The risk to those persons depends of course on the truth or validity of not only the assertion that they can be identified from the documents but in addition the assertion that the plaintiffs are members of or associated with members of the provisional IRA.

On the other hand the plaintiffs’ constitutional right to the protection and vindication of their good name in effect depends upon their being in a position to establish that the television programme was defamatory of them but also to rebut any defence which may be advanced by the defendant.

It is neither permissible nor possible for the court at this stage and upon the hearing of this application to reach any conclusion as to the truth of these two necessary assertions in regard to the issues which arise.

I am satisfied that the decision of the court must be based upon an assumption that there may be a risk to the citizens who are identified in these documents arising from the communication of the documents to the plaintiffs. The decision must also be based upon an assumption that the plaintiffs are in a position to establish that some or all of the accusations against them are false and that their capacity so to do and thus to protect and vindicate their good name in these proceedings may be imperilled by the exclusion from discovery and where appropriate from proof in evidence of the documents in respect of which the defendant claims immunity.

Proceeding on these two assumptions I am firstly satisfied that the issue before the court cannot be decided by seeking to fit the documents in respect of which this immunity is being claimed into some particular category of privileged document such as documents the subject matter of an executive privilege which has been classified and identified by the courts.

I would accept the view expressed by Murphy J on the hearing in the High Court in this case that the particular form of immunity and the reason upon which it is based arising in this case is new to the decisions of the courts in this country and possibly to the courts in other common law countries as well.

I am also satisfied that what is necessarily at issue here is not merely an immunity of documents from discovery by one party to another but an immunity which must go further than that and which must affect what the court could permit as admissible evidence upon the hearing of an action.

The reason I have reached this conclusion is that it seems to me that if there is a real risk as is asserted by the defendant that the communication of these documents to persons who are members of or associated with the provisional IRA either at first or second hand is likely to lead to danger to the bodily integrity and life of certain citizens who can be identified from them then that risk exists even to a greater extent were such documents to be produced in evidence at a public trial than it could by any discovery presently being made.

With regard to the two contesting constitutional rights which the court finds in conflict on the assumptions which I feel must be made on the hearing of this application there can be no doubt but that the constitutional right of individual citizens to the protection of their life and of their bodily integrity must of necessity take significant precedence over even so important a right as the right of citizens to the protection and vindication of their good name. That does not mean of course that it excludes or extinguishes in any way consideration for and the importance of the right to a good name.

Upon the hearing in the High Court and again upon the hearing of this appeal in this Court, an offer was made on behalf of the plaintiffs that if discovery were to be made of these documents that the lawyers engaged in the case on behalf of the plaintiffs with their authority would undertake not to reveal the contents of any document to the plaintiffs unless in pursuance of an application subsequently to be made in respect of a particular document on particular grounds to the court.

It is clear that such a provision has an attractiveness in that it appears to go some distance towards protecting the persons who are said to be at risk with regard to life and health and would go some distance though not possibly a complete distance towards assisting to protect the good name of the plaintiffs.

I am satisfied, however, it is not a procedure which could or should properly be adopted by the court.

If these documents are not only to be protected from communication to the plaintiffs in the interests of a possible risk to citizens from that communication, but also from admission in evidence in a public court the following situation would arise. Lawyers acting on behalf of the plaintiffs would have access to a number of documents some of which might well be significant and weighty tools to be used in cross examination of witnesses adduced on behalf of the defendant and be unable to use such documents or to explain their failure to their own client to use them. This would constitute an unprecedented and wholly undesirable breach in the duty which counsel would owe to their client and in the proper trust which should exist between a client and his/her lawyers. I therefore am satisfied that this compromise arrangement must be rejected.

Having reached that conclusion I am satisfied that there must be an order protecting these documents from being delivered or discovered or from being produced in evidence. I reached that conclusion upon the basis that in respect of the protection of a life where the contesting constitutional right involved is not another life the court must act if it is satisfied that there is a plausible risk to that life.

I am not, however, satisfied that it would be consistent with the doing of justice between the parties to make a simple order merely providing for immu nity against the discovery or proof in evidence of these documents in this action.

The defence to the action filed on behalf of the defendant apart from a series of denials is contained at paragraph 6 in the following terms.

The said words without the special meanings referred to at paragraph 3 of the statement of claim are insofar as the said words consist of allegations of fact true in substance and in fact and insofar as they consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are matters of public interest. Insofar as may be necessary the defendant will rely upon the provisions of s. 23 of the Defamation Act 1961.

A consideration of the words complained of and scheduled to the statement of claim being the script of the television broadcast involved, makes it clear that if the plaintiffs other than the corporate body can establish by affirmative proof an association in the minds of people between them and that body that the defamation of which they complain is in substance and as far as significant importance is concerned an accusation of membership of or association with membership of and support and assistance to the provisional IRA. That is the accusation which is the real gravamen of this case rather than any comment made in the course of the broadcast.

In a recent judgment of this Court in the case of McDonagh v. News Group Newspapers Ltd, Supreme Court 1991 No. 201, 23 November 1993 it was pointed out that to say of any person within this State that they were active supporters or sympathisers of the terrorist campaign of the provisional IRA was to defame them in a very serious and important manner.

I am satisfied that the relevance, if any, of the documents in respect of which immunity has been sought and which are described in the affidavits filed on behalf of the defendant would be largely limited to the question of fair comment. Obviously if such an issue became of importance in the case then the existence of fair comment can be disproved by a plaintiff by establishing malice and malice in turn can be established by proving that the information or sources of information upon which the defendant based a comment of a defamatory nature were incredible and insufficient to support the comment. It appears to me that it would only be in this context and in the event of the question of the fairness of the comment becoming important in the case that these documents might be of major advantage to the plaintiffs and their lawyers if they established that the grounds on which the comment was made were insubstantial.

The very unusual situation with which the court is faced in this case of choosing between a plausible risk to the lives of persons asserted on the basis that the plaintiffs if given a sight of documents might inform terrorists who would injure the parties identified in the documents on the one hand and the diminution of the capacity of the plaintiffs to protect and vindicate their good names on the other seems to arise from a sequence of events which are relevant to the form of order which in my view the court should make.

Those events are stated to be that a servant or agent of the defendant decided to interview a number of members of various branches of the security forces in Northern Ireland in regard to the activities inter alia of the corporate plaintiff and to that extent possibly also of some of the individual plaintiffs as well. On his affidavit if it be correct he succeeded in obtaining from these various sources highly secret confidential and in a sense lethal information concerning persons who might be informers from the provisional IRA or who might be particular forms of intelligence agents in the employment of or carrying out work for the security forces.

He then recorded apparently in detail and in a manner which is capable of identifying the people concerned all this information and retained a series of documents which contained it for the purpose presumably of assisting him in making a television broadcast. Those documents on what he now states in an affidavit are documents which if they became known to members of the provisional IRA or persons actively assisting them cause a danger to the life and bodily integrity of various citizens of this State.

Upon that information, the defendant decided to publish a television broadcast which quite clearly was potentially going to become the subject matter of an action for defamation if the persons whom it identified directly or indirectly felt in a position to deny the accusations of fact made in it. In those circumstances it would have been a predictable situation for experienced journalists to be aware that the documents which had been obtained in the manner which I have outlined and which were still retained by them might become discoverable were it not for a claim of privilege.

Having regard to that recital as I see it of the sequence of events which have led to the situation now arising I am satisfied that the proper and just order which can and should be made in this case is to grant immunity both from discovery and from production in evidence during the trial of this action for the documents which are referred to in these affidavits. In addition, however, exercising the inherent jurisdiction of this Court to do justice between the parties I would strike out of the defendant’s defence the entire of paragraph 6 but would direct that the defendant may be at liberty within a period of six weeks from this date to amend its defence from which paragraph 6 has been struck out by adding to it a plea of justification.

O’Flaherty J
This is an appeal from the judgment and order of the High Court (Murphy J) of 21 October 1993 rejecting the claim of the defendant company that certain documents were privileged from disclosure and inspection.

In the main proceedings, the plaintiffs claim damages for libel in respect of the television broadcast by the defendants, on 12 June 1989, of a programme entitled ‘The Cook Report — Blood-Money’. In the statement of claim delivered on behalf of the plaintiffs on 16 January 1990, it is pleaded in respect of the fourth named plaintiff, Conway Street Community Enterprises Project Ltd, that it is a charitable company whose object is to provide employment for unemployed people in the area of West Belfast where unemployment figures are unacceptably high and that the company has conducted itself entirely in accordance with its charitable objects and has no connection with any political party or paramilitary group. The other plaintiffs are all residents of Belfast, some of whom are retired, and the eighth named plaintiff is a catholic priest.

It is pleaded that in the said programme the defendants falsely and maliciously stated that the financial nerve centre for the IRA lay inside Conway Street Mill and purported to give details of criminal activities carried on by the company. The entire programme was devoted to, and purported to be an exposé of the brutal, criminal, and murderous activities of the IRA, which it was falsely suggested were financed from within the Conway Mills. It further suggested that the third named plaintiff, Thomas Cahill, was one of the IRA’s quartet of financial controllers and that he was their financial link between North and South.

There are also pleaded certain innuendos which, I believe, do not advance the gist of the allegations already encapsulated very much but whether it will be necessary to leave any or all of the innuendos pleaded to a jury for their consideration in due course must be a matter for the trial judge.

It was further pleaded that the non-corporate plaintiffs are all widely known to be directors, managers and organisers of the Conway Mill and that the publication of this false and malicious libel in the political circumstances prevailing in Belfast at the material time has not merely damaged the plaintiffs very seriously in their reputations but has also placed their very lives at risk.

The transmission script of the programme was appended to the statement of claim and I believe that to characterise it as ‘an exposé of the brutal, criminal and murderous activities of the IRA’ is a precise and correct summary of the programme.

It is right, however, to say that the references to the matter in debate in this litigation comprise only a very small portion of the total programme. Nonetheless, the overall intent of the programme was to show the various illegal means by which the IRA raised funds, the programme being amply illustrated with pictures of their various bombing atrocities.

The references to the plaintiffs, either direct or oblique, are slight. There is an interview with a gentleman called ‘Feeney’ and in the following sequence this dialogue occurs:

Feeney: The Conway Street Mill has in it a number of legitimate businesses and activities but nevertheless it’s used as a major front by Sinn Féin as a cover for their financial base in the North of Ireland.

Q. I suppose being mixed in with legitimate businesses actually makes the cover more effective.

Feeney: That’s the idea. It tends to legitimise the Conway Mill and to outsiders it looks as a place of culture, business education, and er publishing in fact. [sic]

The reference to Mr Cahill occurs as follows (after referring to methods of illegal fundraising) there is the following commentary:

Serious people who are part of a complex international fund raising machine. One which is run directly by the IRA’s quartet of financial controllers.

Seemingly, there is then shown a picture of Mr Cahill and the commentary accompanying it is as follows:

Tommy Cahill, ex internee — brother of IRA godfather Joe, and financial link between North and South.

The defence delivered on behalf of the defendants on 18 May 1990 traversed all the averments in the statement of claim, including, surprisingly enough, that the defendants broadcast the programme at all. Since there is no express plea of justification I think the only plea that deserves special mention, therefore, is that contained in paragraph 6. It is as follows:

The said words without the special meanings referred to at paragraph 3 [these are the innuendos already referred to] of the statement of claim are insofar as the said words consist of allegations of fact true in substance and in fact and insofar as they consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are matters of public interest. Insofar as may be necessary the defendant will rely upon the provisions of s. 23 of the Defamation Act 1961.

This is a form of ‘rolled up plea’. It has not ever been regarded as a plea of both justification and fair comment since the decision of the House of Lords in Sutherland v. Stopes [1925] AC 47. In the course of his speech in that case Viscount Finlay set forth the distinction between a plea of justification and that of fair comment and also dealt with the ‘rolled up plea’. At pp. 62–63 of the report he said:

It is clear that the truth of a libel affords a complete answer to civil proceedings. This defence is raised by plea of justification on the ground that the words are true in substance and in fact. Such a plea in justification means that the libel is true not only in its allegations of fact but also in any comments made therein.

The defence of fair comment on matters of public interest is totally different. The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made.

For a good many years past a practice has prevailed of raising this defence by what has been called the ‘rolled up plea’, but it will be found that this term is a misnomer based on a misconception of the nature of the plea. Such a plea states that the allegations of fact in the libel are true, that they are of public interest, and that the comments upon them contained in the libel were fair. The allegation of truth is confined to the facts averred, and the averment as to the comments is not that they are true but only that they were made in good faith, and that they are fair and do not exceed the proper standard of comment upon such matters.

There has been a good deal of misconception as to the nature of this plea. It has been sometimes treated as containing two separate defences rolled into one, but it in fact raises only one defence, that being the defence of fair comment on matters of public interest. The averment that the facts were truly stated is merely to lay the necessary basis for the defence on the ground of fair comment. This averment is quite different from a plea of justification of a libel on the ground of truth, under which the defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct.

I believe that this represents the law in this jurisdiction as well: see Campbell v. Irish Press Ltd (1955) 90 ILTR 105 and, in particular, the judgment of Maguire CJ at p. 109 and Kingsmill Moore J at p. 109–110.

I have pondered carefully the extracts from the programme already quoted and have failed to find anything in them in the context of libel except statements of fact; I cannot see how there is room for the defence of fair comment since there are no ‘comments’ in the extracts germane to the plaintiffs’ case. The situation of Mr Cahill has simplified itself further in the light of affidavits sworn on behalf of the defendants by Mr Paul Calverly in which he states quite categorically that the defendants assert that Mr Cahill is a member of the provisional IRA and that is their case; Mr Cahill, for his part, has sworn in these interlocutory proceedings that he is not now an important and active member of the Provisional Irish Republican Army nor was he at any time.

The respective position of the parties, therefore, appears to be as follows.

The plaintiffs assert that they are deeply involved with this Conway Street Mill project and that the defendants say of it that it is a centre for unlawful fundraising by the IRA. If the plaintiffs succeed in identifying closely with Conway Mill; if they prove that they are actively involved therein and that it is to be taken to be the financial nerve centre of the IRA (as pleaded — I do not lose sight of the fact that it is ‘Sinn Féin’ that is actually mentioned in this part of the programme) the plaintiffs would have to have known about it. To that extent this case bears some resemblance to the case that came before this Court on two separate occasions in the recent past: Duffy v. News Group Newspapers Ltd [1992] 2 IR 369 and [1994] 1 ILRM 364. To say of anyone that he is an active supporter of a terrorist organisation is clearly defamatory: McDonagh v. News Group Newspapers Ltd, Supreme Court 1991 No. 201. So if the plaintiffs adduce these proofs of involvement with a centre which is identified by the defendants with an unlawful organisation, then it is for the defendants to prove the truth of their allegations of unlawful activity. That would require that they should call evidence in support of their contentions unless the plaintiffs are discredited in cross-examination; hearsay evidence of what any witness was told by someone else would not, of course, be admissible. However, the defence will have to be amended so that it contains a plea of justification before this course of action can be taken.

With that background, I now deal with the matter which was agitated before the High Court and before us. On 14 June 1990 by consent the Master ordered that the plaintiffs and defendants respectively make discovery. In his first affidavit in relation to discovery sworn by Mr Calverly on 29 October 1991 he objected to the production of certain documents referred to in the second part of the first schedule of the affidavit claiming that they were privileged documents.

The grounds on which privilege was claimed were as follows:

(i) The programme was made and could only have been made with the assistance of many people in the North of Ireland. If the information supplied, the names of the people who supplied the information, the names of people or enterprises referred to in the documents are revealed or if the documents of the defendants are made available through discovery — then the safety of either the persons who provided the information or the persons who are referred to in the papers may be put at risk.

(ii) The information contained in the document and the documents themselves were supplied to researchers engaged by the defendants in confidence on the understanding that they would not be available to any third party — particularly any party which might be associated with the provisional republican movement. [He referred to the Contempt of Court Act 1981 in relation to the law in the United Kingdom].

[The third paragraph dealt with Thomas Cahill and also went on to assert that all the plaintiffs are known to be associated with or sympathetic to the republican movement].

(iv) The content of current affairs programmes provides valuable information to the public. Reporting of events through television news bulletins or through the daily or weekly newspapers provides information on isolated incidents which occur. Presentation of ‘current affairs’ television programmes or newspaper articles provide an overview of those isolated events which assist the public and contribute to the free flow of information. Such current affairs reports will not occur if the safety of contributors is thereby put at risk.

In the course of a second affidavit sworn on 4 March 1992, Mr Calverly deposed as follows.

8. In researching for this programme I met with people in the United Kingdom. They agreed to provide to me information in confidence regarding the Provisional Irish Republican Army on the basis that they would not be identified to any third parties. Being familiar with the law of contempt in the United Kingdom I reassured the people to whom I talked that their identity would not be revealed nor would information be revealed which they supplied to me which revelation might serve to identify them.

I was in a position to give such an undertaking to those persons. It was only on that basis that they did agree to talk to me. I knew that the programme being made by the defendants was to be broadcast in the United Kingdom. I was aware that the identity of these persons with whom I was meeting could be protected — even if there were to be defamation proceedings initiated by third parties against Central Independent Television plc and even if discovery orders were to be made in those defamation proceedings. The confidentiality which they sought could be maintained in the United Kingdom where by legislation a journalist is not obliged to name sources save in the qualifications provided for in the legislation — none of which qualifications I am advised apply to the facts of this case.

9. The notes which I have and over which privilege is claimed contain sensitive information provided to me by these persons. An informed party reading those notes may identify the persons who have provided information to me. The vulnerability of these persons to acts of terrorism which may be undertaken against them by members of the Provisional Irish Republican Army is considerable. These persons legitimately would be extremely concerned and fearful that if any of the information which they have provided to me in confidence (and which may be contained in my notebooks) were to be revealed, such revelation may enable them to be identified to terrorist organisations and in particular to be identified to members of the Provisional Irish Republican Army. [He also asserted that Mr Cahill was a prominent member of the provisional IRA].

He also deposed (at paragraph 15) that he believed that his notes (being the papers over which privilege has been claimed) are unlikely to assist the plaintiffs in their case against the defendants. He averred that the papers are relevant to establishing a state of knowledge of the defendants at the time of the making of the programme regarding the content of what was broadcast by the defendants in relation to the third named plaintiff, Mr Cahill. He said: ‘It is in that context that the papers may be relevant to the litigation and may be caught by the provisions of the order for discovery made in these proceedings’.

I believe that this reveals a considerable confusion of thought as to the relevance of the documents about which a claim of privilege is raised. If it is sought to prove that the third named plaintiff, Mr Cahill, or, indeed, any of the plaintiffs are in league — using a reasonably neutral term — with the IRA then it is for the defendants to produce their evidence to justify this course. The belief of the programme makers, based on whatever information they received, might be of some relevance if this was a case for the defence of fair comment which, in turn, would fall to be defeated by proof of malice but, to repeat what I said before, this case is a reasonably straightforward one and has nothing to do with comment of any description, fair or otherwise, and, therefore, the matter of malice does not arise. What has to be proved — and proved by evidence — is the truth of an allegation of criminality on the part of any plaintiff.

If, of course, the plea of justification fails then the case becomes one which may call for the award of aggravated damages. The defeat of such a plea, after persistence in it at a trial, would call for aggravated damages in the ordinary way. The weakness or otherwise of the sources of information on which allegations were based would not add any additional dimension to this head of damages in my view.

Mr Calverly in a third affidavit dated 24 June 1992 details the nature of the documents to the discovery of which objection is taken. This is a very lengthy affidavit running to some 35 pages and provides information as regards the nature of the documents and the reasons why their discovery is being resisted. The import of this affidavit may be summarised thus. It is claimed that discovery of these documents will expose those persons named therein as actual or potential collaborators with the programme makers to very serious risk of personal injury; threats of violence; intimidation or even death. Furthermore, it is submitted that certain persons, although not directly named in the documents, can be identified from the documents. It is said that certain of the documents can only have originated from a particular source; other documents are identifiable as having originated from a particular office or from a particular area and thus could only have been supplied by certain individuals whose identities can accordingly be deduced; and annotations or markings on further documents can be used to identify their source. For example, it is said that documents identify, directly or indirectly, sources of information within the provisional IRA; RUC officers having special intelligence on the provisional IRA including plainclothes officers engaged in undercover work; civil servants with detailed information on the Provisional IRA who would not normally be suspected to possess such information; and an individual living under police protection in the UK. It is said that since the plaintiffs have a very close connection with the IRA and that certain of the plaintiffs are members of the provisional IRA, the disclosure of the identity of various individuals, by virtue of the discovery of the aforementioned documents, will lead to these individuals being exposed to some form of retribution. The defendants also argue that the success of previous television documentaries in undermining terrorism provides a strong motivation for the Provisional IRA to punish those persons assisting in the preparation of such television programmes as a deterrent to others.

I pass no comment on whether the police gave information to the defendants’ representatives as suggested in Mr Calverly’s affidavit — because we have not heard the police version of whether this happened or not — nevertheless, I glean enough from Mr Calverly’s averments to think that a case for fearing for the lives and safety of people who helped in any way in the making of this programme has been made out.

The learned High Court judge, having considered all the possibilities by which the documents might have been protected from disclosure, concluded that no form of privilege attached to the documents and he ordered their production giving time, however, for an appeal to be brought to this Court.

Even if I were to confine myself to the matter of ‘privilege’, either real or so-called, in the sequence dealt with by the learned High Court judge, I would allow the appeal on the basis that it is more important to preserve life than to have discovery made in the circumstances of the risks outlined in the affidavits of Mr Calverly. While I would, in general, have no difficulty in concurring with the proposition set forth in the judgment of the Court of Criminal Appeal in In re Kevin O’Kelly (1974) 108 ILTR 97 at p. 101 that ‘so far as the administration of justice is concerned the public has a right to every man’s evidence except for those persons protected by a constitutional or other established and recognised privilege’, nonetheless, if the right to life is under threat that is a more sacred right than the right of full and untramelled resort to the courts.

Griffin J put well this dichotomy when he said in People (DPP) v. Shaw [1982] IR 1 at p. 56:

The existence in a Constitution of certain guaranteed civil, as distinct from natural, fundamental human rights does not mean that a person is entitled to insist on a particular guaranteed right to the exclusion or disregard of another person’s guaranteed right or of the common good. Indeed many of the guaranteed personal rights under our Constitution are expressly limited in their application.

The balancing of constitutional rights, which we are required to engage in on occasion, would not necessitate in this case — to recall the vivid phrase of McCarthy J in People (DPP) v. Ryan [1989] ILRM 333 — ‘a recalibration of the scales of justice’.

However, I believe that the central matter for resolution concerning these documents is whether they are of any relevance. To date the question of their relevance seems not to have loomed large with anyone in the case. In the way that I have demonstrated they appear to me to be of no relevance and, therefore, might properly not have been discovered at all. This may be a mundane solution to the problem. Because the matter was fully argued, aside from the question of relevance, I hold that the documents referred to should not be discovered because of the possible risk to life or limb and as a quid pro quo the defendants should not be allowed rely on a plea of fair comment — I repeat that I do not think it an appropriate plea in any event — in these proceedings.

In the circumstances, I would hold that the appeal should be allowed and as a consequence paragraph 6 of the defence should be struck out with liberty to the defendants to deliver an amended defence in which they may wish to raise the plea of justification and, indeed, avail of the opportunity to deliver a pleading that knits the issues as adroitly as possible for the proper consideration of the court of trial.

 

Bula Ltd and Ors v Crowley and Ors

[1990] ILRM 756

Finlay CJ

These are three appeals against orders made in the High Court with regard to discovery in these proceedings. Although the appeals relate to different defendants the questions raised by them are interrelated. Although they arise on motions nominally seeking the striking out of a defence as the primary relief the relief really sought in each case is further and better discovery.

They are as follows:

1. An appeal against the order made in the motion brought against the defendant Laurence Crowley seeking:

(a) a listing by him by way of further discovery of the individual documents in regard to which he claims legal professional privilege;

(b) further and better discovery of communications between him and the defendant McKay and Schnellmann Ltd after the date of the institution of these proceedings against the first defendant, namely, 2 July 1986.

2. An appeal against the order made on the motion against the defendants McKay and Schnellmann Ltd seeking that they should list the individual documents in respect of which they claim privilege.

3. An appeal against the order made on the motion against NBFC seeking further discovery of ten groups of documents contained in ten separate files which were included in the original affidavit sworn by Mr Condell on their behalf and which were by a subsequent affidavit excluded as not being relevant to any of the issues in the action and as having been included in the original affidavit of discovery by a computer error.

With regard to these several appeals I have come to the following conclusions.

The two issues arising on these appeals with regard to the proper manner of identifying documents in respect of which a legal professional privilege is claimed in an affidavit of discovery, that is to say, the appeal in the motion against the defendant Laurence Crowley and the appeal in the motion against the defendants McKay and Schnellmann Ltd raises an issue which, in my view, is clearly covered by a decision of this Court which is unreported but which was delivered on 5 February 1990 in Bula Ltd v Tara Mines Ltd (see Irish Times Law Reports, 20 August 1990).

In an ex tempore judgment delivered as the agreed judgment on that occasion by Walsh J (5 February 1990), a transcribed copy of which has been approved by him, he dealt shortly but extremely comprehensively with the format required in respect of documents in which such a claim of privilege is being made in an affidavit of discovery. He stated as follows:

The format suggested by the plaintiff in his claim here appears to me to be at least in effect what the rules of court require, because unless documents are identified and properly indicated no particular claim of privilege should be made about anything. One must know what the claim is. The court directs that the rules of court should be followed in the format envisaged by the rules and so far as I am concerned the format indicated or sought in the motion to-day by the plaintiffs is in effect what the rules require. Therefore the schedule of documents should follow that format.

A consideration of the motion in that case and the appeal from the order of the High Court clearly indicate that what was required by this judgment and what the plaintiff was seeking in that case was an individual listing of the documents with the general classification of privilege claimed in respect of each document indicated in such fashion by enumeration as would convey to a reader of the affidavit the general nature of the document concerned in each individual case together with the broad heading of privilege being claimed for it. Such a requirement, irrespective of what may have been a habitual form of affidavit of discovery in the past, seems necessary to comply with the principles laid down by this Court in the recent case of Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] ILRM 588.

I am therefore satisfied that in this case, each of these two defendants, that is to say, the defendant Laurence Crowley and the defendant McKay and Schnellmann Ltd should be directed to make a further affidavit of discovery identifying and listing the documents in respect of which legal privilege is claimed in the manner indicated in this ruling.

With regard to the second ground of appeal in the motion against the defendant Laurence Crowley, dealing with the communications between him and the defendant McKay and Schnellmann Ltd subsequent to 2 July 1986, the position in my view is as follows. In the course of an ex tempore judgment delivered on 19 December 1989 Murphy J, on the hearing of this motion in the High Court, stated as follows:

Discovery is a procedure which is left to the integrity of the parties themselves. The party who fails to make an adequate discovery is precluded from relying upon that document. The deponent who swears the affidavit has the final word on what is relevant and it is difficult, if not impossible, for the court to go behind that.

I am not satisfied that such an absolute protection of the decision by a deponent with regard to the question of discovery is warranted on principle. I accept that a court should be satisfied, as a matter of probability, that an error has occurred in an omission from an affidavit of discovery of documents on the basis of irrelevancy before making any order for further discovery and that it should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation.

Applying this principle to the questions and issues in this case, I am satisfied that in broad terms the statement of claim in this case and the particulars by which it was subsequently expanded and clarified make it probable that communications made between the defendants Laurence Crowley and McKay and Schnellmann Ltd after 2 July 1986 are relevant to the issues arising in this case, both as to claims made against the first defendant of continuing negligence and breach of duty and also, potentially, in regard to the quantification of loss if the plaintiffs should succeed in their claims against the defendant. A submission was made on behalf of the defendant Laurence Crowley that these documents had in substance been discovered by McKay and Schnellmann Ltd against whom the proceedings were not commenced until 1988. This does not, as a matter of principle, in my view, absolve the first defendant from discovering the documents if they are relevant, and the plaintiffs are entitled to discovery from both the defendants concerned. I would, therefore, order the further discovery of these documents.

With regard to the claim in the appeal against the motion brought against NBFC, the position is as follows. In respect of one of the ten files originally discovered and subsequently withdrawn from discovery, it is now conceded that it should be discovered. The defendants state that they do so for the purpose of expediting discovery and had already agreed to discover these documents in a related action in which Mr Wood is a party.

Applying the principles which I have shortly outlined above concerning the issue of relevancy to these documents, I have come to the following conclusions. The plaintiffs’ case, both the individual plaintiffs and the corporate plaintiffs, is a broadly based attack on the validity of the lending transactions between these defendants and the plaintiffs, including, of course, but not confined to the plaintiff Bula Ltd. The relevance of that issue with regard to Bula Ltd has been clearly acknowledged in the affidavit of discovery already filed on behalf of the defendants NBFC which discovers a vast number of documents concerning loan transactions prior to 1974 in regard to Bula Ltd. In a limited number of instances loan transaction documents dealing with some of the individual plaintiffs are also discovered prior to that date. The contention of these defendants that loan transaction documents prior to the date in 1974 in relation to the other plaintiffs are irrelevant, in my view, is not sustainable and is inconsistent with the interrelated nature of the claim being made by all the plaintiffs with regard to loan transactions and with the breadth of the sweep of their challenge to the transactions entered into by these defendants with all of them. In those circumstances, I would direct the replacing of the nine files originally discovered and subsequently purported to have been withdrawn from discovery in the affidavit of discovery by a further correcting affidavit.

Incorporated Law Society of Ireland, William Anthony Osborne, Ernest Margetson and Adrian P. Bourke v The Minister for Justice

, The Minister for Industry Commerce and Tourism and The Attorney General
1981 No. 2919P

High Court

13 December 1985

[1987] I.L.R.M. 42
(Murphy J)

MURPHY J

delivered his judgment on 13 December 1985 saying: This is an application by the plaintiffs for an order directing the defendants to permit the plaintiffs to inspect the documents set out in the third part of the First Schedule to an affidavit of discovery sworn by Barry Harte and filed herein on 10 January 1984 and in particular to permit inspection of two letters comprised in that part of the Schedule dated 8 January 1979 and 16 January 1979.

It was agreed between the parties that it was appropriate that I should peruse the documents comprised in Part III of the Schedule aforesaid in the light of the issues raised in the pleadings herein and determine, in accordance with the principles of law established in that behalf, which (if any) of the documents comprised thereein should be made available for inspection by the plaintiffs.

The general principles to be applied in a case of this nature were established in Murphy v Dublin Corporation [1972] IR 215 and Geraghty v the Minister for Local Government [1975] IR 300 and applied by Costello J in Folens v The Minister for Education [1981] ILRM 21. As Costello J pointed out in the latter case the relevant principle is summarised by Walsh J in Murphy’s case in the following terms:

Where documents come into existence in the course of carrying out of the executive powers of the State, their production may be adverse to the public interest in one sphere of Government in particular circumstances. On the other hand, their non-production may be adverse to the public interest in the administration of justice. As such documents may be anywhere in the range from the trivial to the vitally important, somebody or some authority must decide which course is calculated to do the least injury to the public interest, namely, the production of the document or the possibility of the denial of right in the administration of justice. It is self evident that this is a matter which falls into the sphere of the judicial power for determination (at pp. 234–235).

It appears from the statement of claim delivered in this matter on the 20 November 1981, that the plaintiffs are alleging that the failure of the first named defendant to concur in certain rules prepared in or about the months of October and November 1977 was unlawful, ultra vires and void for a variety of grounds including the grounds that it was alleged that that defendant had acted arbitrarily and capriciously in reaching his decision and on the further ground that the first named defendant had acted in the belief, alleged to be wrongful, that the first named defendant could only concur in the making of such rules with the consent of the secondly named defendant.

There is of course a considerable body of documentation consisting of internal memoranda, correspondence, minutes and reports relating to the decisions made by the Ministers and more particularly the advices given to them in relation thereto. It is these documents which are described in paragraph 4 of the affidavit sworn by Barry Harte in the following terms:

I object to producing the documents set forth in the third part of the first schedule on the grounds that the documents, minutes and correspondence set forth therein are privileged being documents containing only internal expressions of opinions, submissions of arguments, recommendations for decision as between Civil Servants in the Department of Trade Commerce and Tourism (formerly known as the Department of Industry and Commerce) between Civil Servants in that Department and the Parliamentary Secretary to the Minister and documents being internal records of related Ministerial decisions between Civil Servants in that Department and Civil Servants in the Revenue Commissioners. I object to producing those documents on the grounds that confidential communications of this nature made between Public Servants should be protected from disclosure in the interests of the efficient and proper running of the Public Service. I submit that the disclosure of documents of this nature is not in the public interest as disclosure of such documents would tend to hinder the free communication necessary for the proper running of the Public Service. I submit that to refuse privilege to documents of this nature would be contrary to the public interest as the proper working of State Departments would be affected, as officials might tend where possible to make their comments or suggestions or recommendations orally rather than in written memoranda and such a tendency would not be either in the interests of the public or in the interests of the efficiency of the Public Service.

As appears from the decision of Walsh J in Murphy’s case quoted above it is the function of this Court to determine first whether the production of the documents referred to would be detrimental to the efficiency of the public service and, secondly, whether such prejudice outweighs the interest of the plaintiffs in their claim to have justice administered by the court.

In accordance with the precedent established in the earlier cases and with the consent of both parties I have read the copy documentation in question and in particular the two letters dated 8 January and 16 January 1979, passing between the then Minister for Justice and the then Minister for Industry Commerce and Energy.

Whilst it is no doubt true that all internal documentaiton and communication with the public service is confidential in the broad sense that no junior official would be entitled to disclose details thereof to members of the public, likewise I believe that it would be readily accepted that the possibility that documentation may be open to inspection at a later date in pursuance of an order for discovery of documents could tend to have an inhibiting effect on the manner in which advices would be transmitted and recorded within the public service. Those factors would arise in this as in every other case of the same nature. The present case has, however, the additional factor that the documentation for which privilege is claimed includes correspondence passing between individual Ministers of Government. It seems to me to be right to pay particular attention to these letters to see whether their production might involve any particular risk of damage to the public service as clearly Ministers will necessarily have responsibility for the access to information of a most sensitive and important nature. However, even bearing that consideration in mind I am satisfied that there is nothing in the documentation for which this particular claim of privilege is made which has any special potenital for damage in the proper administration of the public service. Indeed it would appear to me that the documents, including the two letters aforesaid, whether or not they advance the interests of the plaintiffs herein, show a degree of expertise and involvement by the Ministers concerned over and above that provided by their respective officials which is more likely to advance the interests of the public service than to damage it.

I believe that in many applications of this nature it would be difficult to evaluate the benefits which could flow to a plaintiff from the disclosure of a particular document or series of documents. Indeed it might be difficult to foresee how documents disclosed could be put in evidence or used in cross-examination until the case was at hearing. However, in the present case it does seem to me that to deny the plaintiffs access to the documentation for which this privilege is claimed would be to impose some measure of injustice on them and in my view that injustice is almost necessarily greater than the potential damage to the public service which I regard as minimal in the present case. Accordingly, it seems to me that all of the documents included in Part III of Schedule I to Mr Harte’s affidavit should be produced for inspection.

Tír na nÓg Projects Ireland Ltd v Kerry County Council

[2008] I.E.H.C. 48
JUDGMENT of Mr. Justice Clarke delivered on the 28th day of February, 2008

1.
Introduction

1.1 In these proceedings the plaintiffs (“Tír na nÓg”) seek a declaration that the defendant (“Kerry Council”) has been deemed to grant a planning permission for a development of thirty three holiday homes and a leisure centre at Cappanacush, Blackwater, Killarney. Tír na nÓg made a planning application in respect of that development which was given record No. 288/02. It is said that no decision was made by Kerry Council within the time specified in the Planning and Development Act, 2000 (“the 2000 Act”). What is sought is, therefore, a so called default planning permission which arises in circumstances where the planning authority concerned does not make a decision within the time limits specified.

1.2 It is also important to note that the jurisprudence of the courts in relation to default permissions establishes that a default permission is not available in circumstances where the application which was not determined on time, involved a material contravention of the development plan then in force. Thus it is open to a defendant local authority to seek to persuade the court that an application, in respect of which a default permission is alleged to arise, was in material contravention of the relevant development plan, and if that be established, any claim for a declaration that a permission has been deemed to have been granted will fail.

1.3 It is also important to note that Kerry Council has, in its defence in these proceedings, raised an objection in which Kerry Council maintains that the case as brought by Tír na nÓg is procedurally flawed, to a fatal extent, by reason of a number of matters. The relevant objections include a contention that, by reason of the fact that Tír na nÓg has brought these proceedings as plenary proceedings, it has sought to circumvent the time limits for the bringing of judicial review proceedings to challenge a decision of a local authority in a planning matter, as imposed by the Rules of the Superior Courts, and the provisions of the 2000 Act. In particular Kerry Council relies, in that context, on a decision of the 30th of October, 2002 whereby Kerry Council refused planning permission for the development now sought to be the subject of a default permission. That decision would appear to have been made well after the expiry of the period within which a decision on the planning application should have been made by virtue of the time limits specified in the 2000 Act. It is said that the attempt to seek a declaration as to the existence of a default permission amounts to a challenge to that refusal decision which, it is argued, brings the case within the ambit of s. 50 of the 2000 Act, which in turn would require that any such challenge must be brought within a two month timescale, and only by means of judicial review.

1.4 I note these matters because they are of relevance to the limited issue which I now have to decide which concerns an application for discovery in respect of a single document. In the context of discovery the issues which may be likely to arise in the proceedings are, of course, always of central importance. For that reason it is important to note that, by reason of the pleadings to which I have referred, the issues which are likely to arise at trial would seem to be the following:-

A. Whether Kerry Council was in default in making a decision within the timescale required under the 2000 Act. On the basis of the evidence currently available there does not seem to be any dispute but that Kerry Council was so in default;

B. Whether the application for planning permission which is the subject matter of these proceedings involved a material contravention of the relevant development plan; and

C. Whether the proceedings are procedurally flawed to a fatal extent. In that context the question of the belated decision by Kerry Council to refuse planning permission is potentially relevant.

1.5 Against the background of that general analysis of the litigation as a whole, it is now necessary to turn to the specific discovery issue which arises between the parties.

2.
The Discovery Issue

2.1 The issue which arises is somewhat unusual. Firstly, discovery is sought only of one document. That document undoubtedly exists and involves the giving of legal advice. There clearly are significant issues as to whether the document concerned may be privileged. It will be necessary to turn to the question of privilege in due course.

2.2 In addition, it is clear that a professional advisor of Tír na nÓg has seen the document in question in circumstances where it was openly available on the public planning file maintained by Kerry Council. While the professional advisor concerned has not made a copy, in the photostat sense, of the document, he did, it is said, record in handwriting the text of the document. Tír na nÓg is, therefore, aware of the contents of the document concerned.

2.3 However, it is now said on behalf of Kerry Council that the document was placed in error on the public file, has now been withdrawn, and cannot now be the subject of an order for discovery by virtue of legal professional privilege and/or litigation privilege.

2.4 While it is, of course, ordinarily the case that, in the context of discovery, the proper way to deal with questions of privilege is to require an affidavit of discovery to be sworn, in which such privilege as may be claimed can be asserted, leaving over any issue as to the validity or otherwise of any privilege so claimed to a further application challenging the privilege, there are some circumstances where it is appropriate for the court to consider privilege at the stage of deciding whether to make an order for discovery in the first place. This will likely to be so, in particular, where it is clear that all documents (or, in an appropriate case, all documents within a relevant class sought) would be privileged. In those circumstances there will often be little point in directing discovery (or further and better discovery) where the only consequence of so directing would be that privilege would be properly be claimed in respect of all of the documents concerned. I should emphasise that such an approach is only appropriate where it is
clear
that any privilege which is asserted would undoubtedly be sustained. Where there may be doubts as to that question, it may well be more appropriate to require an affidavit of discovery to be sworn, which maintains the claim of privilege and thus requires the listing of all of the relevant documents, but leave over a determination of the validity of any privilege claimed to a later date. For example, the dates and nature of documents in respect of which litigation privilege is claimed may well be relevant to a consideration of whether those documents are, in fact, privileged. In those circumstances it will normally be the case that the better course of action is to direct discovery, thus requiring a listing of all of the relevant documents, which in turn will allow the merits or otherwise of the privilege claimed to be considered in a more comprehensive way.

2.5 However, it seems to me that this case is clearly one where it is appropriate to deal with privilege at this stage. There is only one document involved. Both sides know its timing and contents. Nothing would be gained by directing that an affidavit be sworn which listed that single document, and claimed privilege in respect of it, other than to duplicate the court process. On that basis it is entirely appropriate that the validity of the privilege asserted be assessed at this stage, for if the document be truly privileged then there is nothing, on the facts of this case, to be gained by directing that it be discovered.

2.6 However, the starting point for any question of discovery has to be a determination as to whether the document is relevant to the proceedings. Kerry Council argues that the document is not relevant. I now turn to that issue.

3.
Relevance

3.1 It is clear from the evidence before me that the document concerned involves the giving of advice by Kerry Council’s solicitor (and the recording of advice tendered to that solicitor by senior counsel) concerning the question of the course of action to be taken in the light of what appeared to be a failure on the part of Kerry Council to make a decision within the statutory timescale. It is clear that that advice favoured the making of a decision refusing permission. It is also clear that the question of whether the application, which was the subject of the failure to make a decision, might to be said to be in material breach of the development plan was addressed together with a consideration of the extent to which such a situation might afford a defence to proceedings designed to establish a default permission.

3.2 For the reasons which I have sought to analyse earlier, there is an issue in this case as to whether these proceedings are fatally flawed from a procedural prospective. One of the issues that arises under that heading concerns the extent to which the existence of the decision to refuse may be said to preclude any assertion of an entitlement to a default permission other than by way of a challenge to that decision to refuse which would, of course, by virtue of s. 50 of the 2000 Act, require to be brought within two months and by judicial review only. There will, doubtless, be a number of legal issues that will arise under that heading. As I understand it, Tír na nÓg will seek to argue that a default permission arises by operation of law, and that it is entitled to seek a declaration to that effect for the purposes of insuring that there can be no dispute but that it has the benefit of such a default permission. On that basis it is argued on behalf of Tír na nÓg that the refusal is legally immaterial. However, it is possible that the court may be persuaded by Kerry Council that some regard will have to be had to the refusal, and in that context it is possible that the circumstances in which the refusal came to be made may become an issue, of itself, of relevance in the proceedings.

3.3 In addition, although this is less clear, it may be that the advice given may touch upon the general question which will undoubtedly arise in the proceedings as to whether the planning application involved a material contravention of the development plan.

3.4 However, on the basis of the clear possibility that the circumstances in which the decision to refuse was made (being some considerable time after the time period for making such a decision had elapsed) may become an issue in the proceedings, I am satisfied that the document in question is potentially relevant to the issues which might arise on the pleadings. In that context it is necessary to turn to the question of privilege.

4.
Privilege

4.1 I am satisfied that the document in question involves the giving of legal advice. It is, therefore, in my view,
prima facie
entitled to the benefit of legal professional privilege. In those circumstances it is unnecessary to consider whether it would also have the benefit of litigation privilege.

4.2 However, it is also clear that the document was on the public planning file for a considerable period of time, such that a person acting on behalf of Tír na nÓg had ready access to it. In those circumstances the real question which arises concerns whether any privilege which attached to the document has been waived.

4.3 I had occasion to consider the law in this area in
Byrne & Anor v. Shannon

Foynes Port Co. & Anor
[2007] IEHC 315. That case involved potentially privileged documents which were included in an affidavit of discovery but where, it was said, due to inadvertence, privilege was not claimed. Having reviewed recent authority (including the judgment of Smyth J. in
Shell E & P Ltd v. McGrath and Others
[2006] IEHC 409), I concluded that the test to be applied was a two stage test in the following terms, (at para. 5.1of the judgment):-

“First the court must consider whether the solicitor seeing the document or documents concerned, realised that a mistake had been made. Secondly, and perhaps more importantly on the basis of the authorities, the court must put itself in the position of a reasonable solicitor and consider whether, on the balance of probabilities, such solicitor would have taken the disclosure to have been as a result of a mistake.”

4.4 While it is true that the disclosure in this case did not occur in the context of the exchange of documents as part of court proceedings, it does not seem to me that the underlying principle is affected by that fact. Where a document which might be the subject of a proper claim of privilege comes to the attention of the other side in litigation, whether as a result of its formal disclosure in the discovery process, by it being inadvertently handed over, as would appear to have happened in
Shell E & P
, or by virtue of it being placed on a public file or otherwise made publicly available, as in the circumstances of this case, does not affect the principle. The underlying test which the court must apply is as to whether a reasonable person would objectively view any privilege that might have attached to the document as having being waived in the light of the circumstances in which the document had come to the other sides attention. Those circumstances are, therefore, material in that they may affect the proper judgment as to whether, objectively speaking, a party might legitimately take the privilege to have been waived. The circumstances do not, however, affect the test.

4.5 I am satisfied, therefore, that the question of whether privilege can be said to have been waived in relation to the document in dispute in this application turns on whether, objectively speaking, Tír na nÓg and its advisors should have realised that the disclosure of the document concerned was by mistake.

4.6 I am not satisfied that that test is met. The document was available on a public file. While it is stated in affidavit evidence on behalf of Kerry Council that its being placed on that file was due to inadvertence, no real explanation is given as to how any mistake might have occurred. There are many reasons why a public body charged with statutory duties may choose to disclose legal advice which it has obtained. It may wish to make clear that the actions which it proposes taking are in accordance with legal advice. There is no reason in principle, or in practice, why a local authority might not wish to place upon the public planning record, an account of advice which it received, and which might colour the view of any interested member of the public as to its actions.

4.7 In those circumstances I am not satisfied that it would have been clear to Tír na nÓg and its professional advisors that the placing of the document in question on the public planning file was due to an error on the part of Kerry Council. In those circumstances it seems to me that Kerry Council must be taken to have waived any privilege in respect of the document, and in those circumstances it seems to me that it is appropriate to direct discovery of it at this stage.

4.8 In those circumstances it does not seem to me to be necessary to deal with a potentially alternative line of argument which derives from the jurisprudence of the courts concerning documents which have become public knowledge. I base this decision on the failure of Kerry Council to satisfy me that the objective test, which I analysed in
Byrne v. Shannon Foynes,
has been met.

5.
Conclusion

5.1 For those reasons I propose directing that Kerry Council discover the document in question and further rule that any privilege attaching to that document has been waived by Kerry Council so that privilege can no longer be asserted in respect of it.

 

Murrays Europcar Ltd & Anor

[2009] IEHC 306 (18 May 2009)

 

BETWEEN/

RYANAIR LIMITED AND RYANAIR DIRECT LIMITED
PLAINTIFFS
AND
MURRAYS EUROPCAR LIMITED AND EUROPCAR (UK) LIMITED

DEFENDANTS
JUDGMENT of Mr. Justice Cooke delivered on 18th day of May, 2009
1. The recent history of this long-running action is that in May, 2006, the first-named defendant brought an application for discovery of documents and by consent an order to that effect was made on 18th July, 2006. The Plaintiff was to make discovery by 10th October, 2006 but failed to do so. An application to strike out the claim for failure to make discovery was brought on 2nd February, 2007 and the affidavit was eventually produced on 15th February, 2007.

2. Inspection of the discovered documents was then sought and refused and an order for inspection was then obtained from the Master of the High Court on 28th June, 2007. Inspection was not permitted by the plaintiff within the 30 days stipulated in the order with the result that an order was sought from and granted by the Master on 13th November, 2007, as amended by an order of 8th April, 2008 dismissing the plaintiff’s claim as against the first-named defendant for failure to comply with the order of 28th June, 2007. The plaintiff then applied to have that claim reinstated and the matter was determined before MacMenamin J. on 12th February, 2009.

3. Subject to the terms laid down in that order, including lodgement of a sum of €485,622, the permitting of inspection and the payment of 50% of the costs to date in the action, the reinstatement of the claim was permitted.

4. On that motion, a very great emphasis was placed obviously on the delay on the part of the plaintiff in prosecuting its claim and on its failures to comply with previous orders. For the purpose of answering the allegation that this delay and these failures indicated that the plaintiff had no serious intention of pursuing the alleged claim but was in reality seeking to obstruct the defendant’s claim, an affidavit was sworn by Mr. Cawley on behalf of the plaintiff and in para. 4 of that affidavit Mr. Cawley swore:

“In particular I deny absolutely the suggestion that Ryanair seeks to hinder the efforts of the first-named defendant in litigating the dispute or that this is intended. In fact the case is that Ryanair has obtained a report from Patrick Massey, consultant and former member of the Competition Authority, which is strongly supportive of the case that the first-named defendant failed in its obligation to provide a competitive pricing policy. Ryanair is in fact most anxious to litigate this matter, which could proceed to trial rapidly.”

5. The first-named defendant now applies for an order permitting inspection of that report on the basis that any privilege that might have been claimed in it has been waived by its being thus deployed in that affidavit in support of the claim to reinstate the action. The law on the issue is clear from the authorities opened to the court and especially the decision of the High Court in Byrne v. Shannon Foynes Port Company [2008] 1 IR 814, and the Supreme Court in Hannigan v. Director of Public Prosecutions [2001] 1 IR 378. The authorities cite the well-known statement:

“The general rule is that where privilege material is deployed in court in an interlocutory application, privilege in that and any associated material is waived…”

6. It is also clear, however, that a mere reference to a document is not sufficient to treat it as deployed in that sense. This is so even if some reliance is placed on it. Reliance is not the test as Clarke J. put the matter very aptly in the Byrne v. Shannon Foynes Port Company [2008] 1 IR 814, case:

“It is important to note that the test is to the effect that the document concerned was ‘deployed’. It is clear from Marubeni Corporation v. Alafouzof [1988] C.L.Y. 2841 that a mere reference to a privileged document in an affidavit does not in itself amount to a waiver of privilege and that this is so even if the document referred to is being relied on for some purpose, for reliance in itself is not the test. Properly speaking, the test is whether the contents of the document are being relied on rather than its effect.”

7. As thus put, the test is as to whether the party concerned has placed reliance on the content of the document concerned. It does not seem to me that the mere disclosure of the existence of the document without claiming any privilege in respect of it in an affidavit of discovery can be said to amount to the placing of reliance on the document in the proceedings so as to, properly speaking, suggest that the document has been deployed.
8. In the present case the court is satisfied that privilege has not been waived. In effect all that has been done is to refer to the existence of a strong supportive report from an expert in order to rebut the accusation that the plaintiffs’ claim is obstructive or vexatious. The content or basis of the report was not mentioned. No use is made of any particular advice or expertise contained in it. It is merely referred to in corroboration of the plaintiffs’ intention to prosecute the claim.

9. For these reasons the court considers that privilege has not been waived in this case and that the order for inspection of the report need not be granted.

Private Motorists’ Provident Society Limited (In Liquidation) v. P.M.P.A. Insurance plc (Under Administration)

[1990] IR 285

 

Blayney J.
31st October 1989

The issue to be decided on this motion is whether the Registrar of Friendly Societies is entitled to claim privilege for certain documents he has been required to discover under an order obtained by the plaintiff under O. 31, r. 29 of the Rules of the Superior Courts.
The documents in question are:
1. A memorandum prepared by the Registrar, dated 5th April, 1982, entitled “Suggested overall approach to the supervision of the P.M.P.A. group” and
2. All correspondence between the Registrar and the Department of Industry and Commerce and all memoranda of communications between the Registrar and the Department of Industry and Commerce concerning the relationship between the plaintiff and the defendant.
In regard to the memorandum dated the 5th April, 1982, the Registrar stated his objection to discovering it in paragraph (iii) of his affidavit sworn on the 19th May, 1989:
“The memorandum referred to at paragraph 3 of the notice of motion was prepared by the then Registrar following receipt of a report from Mr. Patrick Shortall of Coopers and Lybrand and following meetings with department officials. The said memorandum came into existence as a result of a statutory inquiry and I say and believe that to release same would be contrary to the public interest in that it would greatly undermine and impair my statutory functions in carrying out investigations. I say and firmly believe that if such a memorandum was made public that department officials and members of the public would be less likely to speak freely with me in carrying out my functions. The efficiency of my office would inevitably be hampered if those with whom I spoke knew that in future they might have to answer for statements or opinions proffered. I say that it is necessary for the proper function of my office that memoranda such as the one referred to at paragraph 3 of the notice of motion should be withheld.”
It is clear from this that the Registrar’s case is that the disclosure of the memorandum would be contrary to the public interest on the following grounds:
1. It would greatly undermine and impair his statutory functions in carrying out investigations.
2. It would result in department officials and members of the public being less likely to speak freely with him when he is carrying out his functions.
3. The efficiency of his office would be hampered if those with whom he spoke knew that they might have to answer for statements or opinions proffered.
I will consider each of these grounds in the order in which they are set out.
Before expressing any view on the first ground it is necessary to ascertain what are the Registrar’s statutory functions in carrying out investigations. They are contained in ss. 13 and 14 of the Industrial and Provident Societies (Amendment) Act, 1978, and might be summarised as follows:
(a) Where it appears to the Registrar to be expedient to do so, he may appoint an inspector to investigate and report to him on the affairs of a society (s. 13, sub-section 1).
(b) The inspector may require the production of all the accounts, deeds, books, records and other documents of the society and may examine on oath its officers, members, agents, and servants in relation to its business (s. 13, sub-section 1).
(c) Any officer, member, agent or servant of a society who refuses to answer any question put to him by the inspector with respect to the affairs of the society shall be guilty of an offence and liable on summary conviction to a fine not exceeding £500, or to imprisonment for a term not exceeding six months, or to both (s. 14, sub-s. 2 and s. 28, sub-section 2).
(d) The inspector may apply to the court for an order that a person, whom he has no power to examine on oath, shall attend court and be examined on oath (s. 14, sub-section 3).
(e) The Registrar may, if he thinks fit, cause the report of the inspector to be printed and published (s. 14, sub-section 6).
(f) A copy of the inspector’s report shall be admissible in any legal proceedings as evidence of the opinion of the inspector in relation to any matter contained in the report (s. 14, sub-section 9).
It is clear from this summary of the relevant provisions relating to the investigation of a society that the Registrar does not carry out the investigation himself. He appoints an inspector to do so. That is his sole statutory function apart from exercising his discretion as to whether to publish the report of the inspector. That function could not be undermined or impaired in any way by the disclosure of the memorandum in question. Such disclosure will not in any way interfere in the future with the Registrar’s statutory power to appoint an inspector. Furthermore it will not in any way hamper the inspector in carrying out the investigation since he has wide statutory power for doing so. Finally, since the Registrar has power to publish the inspector’s report and since that report is admissible in legal proceedings as evidence of the opinion of the inspector, nobody interrogated by the inspector could be under any illusion that information obtained by the inspector would be confidential, and so the fact that the report, or documents referring to the report or its contents, might be discovered in proceedings such as this could not in any way affect their readiness to disclose information to the inspector. I think it is relevant also to note that a claim by the Registrar to privilege in respect of the inspector’s report has already been rejected by an earlier order in these proceedings.
The memorandum for which privilege is claimed, as its title indicates, sets out the Registrar’s proposals for a unified approach by him and the Department of Industry and Commerce to the supervision of the P.M.P.A. group. Its only connection with the Registrar’s statutory function of investigation is that it was prompted by the report of the inspector appointed by the Registrar. The Registrar is not making the case that the contents of the memorandum are such that their disclosure would be contrary to the public interest. His objection is based on how he believes his statutory function would be affected. For the reasons I have given earlier, I am satisfied that they would not be in any way adversely affected and so I reject the first ground on which he relies.
I reject the other two grounds also. I am not prepared to accept that responsible civil servants would be any less likely to speak freely with the Registrar if this memorandum were disclosed to the plaintiff. The memorandum was composed entirely by the Registrar. The only connection that it has with any other civil servant is that it was addressed to the Department of Industry and Commerce, but they had no input into it. Therefore its disclosure could not in my opinion affect in any way their attitude to the Registrar in the future.
I now move on to consider the correspondence and memoranda of communications between the Registrar and the Department of Industry and Commerce. The Registrar’s grounds for objecting to disclose these are similar to the grounds I have just dealt with. In his affidavit of the 18th July, 1989, he says that to produce the documents:
“would be contrary to the public interest in that, inter alia, it would greatly undermine and impair my statutory functions in carrying out investigations as department officials and members of the public would be less likely to speak freely with me if they knew that in future they might have to answer for statements made or opinions proferred.”
The documents consist of reports, notes and minutes of meetings at which were present all or some of the following: the Registrar and officials from his office, officials of the Department of Industry and Commerce, directors of the plaintiff and directors of the defendant. It is to be noted that once again it is not because of their contents that the Registrar objects to the disclosure of the documents. The ground of his objection is the effect that the disclosure would have on his ability to carry out his functions adequately in the future.
I have already considered this ground fully when dealing with the memorandum of the 5th April, 1982, and for the reasons I outlined I am satisfied that there is no substance in it. In my opinion the disclosure of the documents in question will not in any way undermine the Registrar’s statutory functions in carrying out investigations. Furthermore, even though the Registrar did not claim that the contents of the documents were such that their disclosure would be contrary to the public interest, I have nonetheless read them and I am satisfied that the Registrar was correct in not making such a claim. There is nothing in the documents which it would be contrary to the public interest to disclose.
I will accordingly make an order rejecting the Registrar’s claim to privilege.

Silver Hill Duckling Ltd v Minister for Agriculture

[1987] ILRM 516 O’Hanlon J.
An order for discovery of documents was made in these proceedings by the Master of the High Court on 11 October 1985, and an affidavit of discovery was sworn on behalf of the defendants on 3 March 1986, by Michael Cronin, a civil servant employed in the Department of Agriculture.

In paragraph 3 of that affidavit Mr Cronin claims privilege in respect of certain documents on the following basis:

I object to producing the documents set forth in the Second Part of the First Schedule hereto on the grounds that the said documents are privileged being documents made in contemplation of and for the purposes of advising the Minister and his officers in relation to the plaintiff’s claim herein and of being documents of a confidential nature relating to the European Community.

The plaintiffs are not satisfied that the defendants have made full and proper discovery of documents as required by law, in compliance with the order already made, and now apply for an order directing and compelling the defendants to make further and better discovery for the purpose of making good certain omissions.

The application is grounded upon an affidavit of the second named plaintiff, sworn on 7 July 1986, in which it is claimed in the first place that the claim of privilege referred to in paragraph 3 of the original affidavit of discovery is not well-founded, and in the second place reference is made in paragraphs 4 to 14 (inclusive) of Mr Steele’s affidavit to other relevant documents which he believes came into existence and which are or have been within the defendants’ power or procurement and which have not been discovered.

Dealing first with the claim of privilege, I agree with the contention of the plaintiffs that privilege is claimed on too wide a basis in paragraph 3 of Mr Cronin’s affidavit. It appears to represent an effort to claim privilege on two separate grounds known to the law, neither of which is clearly identified by the deponent—one ground being what is commonly referred to as legal professional privilege, and the other being the ground that it would be contrary to the public interest to disclose the documents in respect of which privilege is claimed.

I have considered the defendant’s claim of privilege under both of the said headings and I have inspected the file of documents which has been made available to the court by the defendants which, apparently, contains all documents in respect of which privilege is claimed under these headings.

Dealing first with the claim to legal professional privilege, I am satisfied that a sustainable claim under this heading may be made in respect of a wider category of documents than the conventional communications passing between a client and his legal adviser in contemplation of litigation.

The legal principles applicable to such claim of privilege have been discussed at some length in fairly recent times in two leading cases in the House of Lords—Crompton v Customs and Excise Commissioners [1973] 2 All ER 1169, the Waugh v British Railways Board [1980] AC 521. The claim of privilege based on public interest was considered by the Supreme Court in Murphy v Corporation of Dublin [1972] IR 215, and again in Geraghty v The Minister for Local Government [1975] IR 300; it was also considered by the House of Lords in Crompton’s case.

The circumstances in the present case are not unlike those which applied in Crompton. In that case the Customs and Excise Commissioners were seeking to enforce a claim to purchase tax on amusement machines and the dispute between the parties concerned the valuation which should be placed on the machines for the purpose of the tax. The relevant statute provided that a dispute between the tax-payer and the Commissioners as to the wholesale value of the goods was to be referred to arbitration. The ultimate decision on the issue of discovery was to the effect that the Commissioners were not allowed to claim legal professional privilege in respect of materials accumulated by them for the purpose of measuring their claim against the tax-payer before litigation was apprehended or threatened, but that they were entitled to claim privilege based on grounds of public interest. In the present case the plaintiffs are litigating their claim to compensation under the provisions of the Diseases of Animals Act 1966, arising out of the slaughter of the plaintiff’s flocks of ducks in obedience to directives given by the Minister for Agriculture in exercise of his powers under that Act. The Minister contends inter alia that he should not be required to disclose to the plaintiffs expert opinions and other materials accumulated on his behalf for the purpose of resisting the assessment which the plaintiffs put forward as the basis of their claim.

Having considered the relevant authorities, I am of opinion that once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege. This seems to have been the view taken by the House of Lords in Crompton, while their Lordships also took the view that litigation in that case should not be regarded as apprehended or threatened until the Commissioners had made their assessment and put it formally to the tax-payer for the purpose of having it rejected by the tax-payer as a preliminary step on the road to arbitration. On that aspect of the case I would have been more inclined to favour the view taken in the Court of Appeal that once it was apparent to both sides that they were not going to reach agreement and that the ultimate recourse to arbitration was well-nigh inevitable, then a situation had arisen where litigation between the parties could fairly be regarded as apprehended or threatened.

In the present case the outbreak of poultry disease which gave rise to the slaughter of the plaintiffs’ flocks of ducks occurred towards the end of 1983 and the actual slaughter of poultry and destruction of eggs took place between 21 December 1983, and 13 February 1984. It was clearly a case where a claim for compensation would be presented under the provisions of the Disease of Animals Act 1966, (although the pleadings in the case also include a claim for damages under a number of different headings), and the Department of Agriculture had to consider from a very early stage what amounts might become payable on the conventional statutory basis. The subject is referred to in a minute from that Department to the Department of Finance, dated 21 February 1984, and a letter of reply dated 6 March 1984, neither of which said documents has hitherto been made available to the plaintiffs. At that stage the Department of Agriculture, with the sanction of the Department of Finance, had reached a conclusion as to the amount which should be offered in settlement of the plaintiffs’ claim under the Act. There followed a letter of 23 March 1984, from the plaintiffs’ solicitors to the Department of Agriculture, and a further letter of 2 April 1984, also from the plaintiffs solicitors, which have not been opened to me but the contents of which I can glean to some extent from the other documents in the Departmental file.

Without referring to the figures contained in the various documents, it seems clear that the plaintiffs, through their solicitors, were advancing a claim so far in excess of the amount the Department of Agriculture with the concurrence of the Department of Finance, was prepared to pay, that from that time forward it must have been apparent to both parties that the claim would ultimately have to be resolved by means of litigation. On receipt of the first letter from the plaintiffs’ solicitors the Minister for Agriculture referred the matter to the Chief State Solicitor for advice and when the Chief State Solicitor’s office replied on 18 April 1984, it was to confirm that, ‘There is such an enormous discrepancy between the amount being claimed and the amount at which you value the loss suffered by the claimants, that (it) seems impossible that this matter can be resolved by negotiation.’

In this situation I am satisfied that litigation between the parties may fairly be regarded as having been apprehended or threatened from 26 March 1984, by which date the letter from the plaintiffs’ solicitors would have been received by the Minister for Agriculture in ordinary course of post, and that the defendants are entitled to claim privilege from that time forward in respect of communications passing between the Minister for Agriculture and his legal advisers relating to the claim, and also in respect of documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs.

In this connection, I would respectfully adopt (with slight modifications) a passage from the judgment of Denning, MR, in the Court of Appeal’s decision in Crompton, (reported [1971] 2 All ER 353 at p. 378):

On inspecting these documents in 2 (b) (ii) it appears that they are all internal memoranda within the department itself made in the course of their investigations. There are instructions issued by senior officers to the staff about the methods to be employed. There are many schedules prepared by the staff showing the prices charged for the machines. There are many minutes of meetings which were had by the staff of the commissioners with the staff of the company, or its accountant and solicitors. There are memoranda containing comments on the attitude and conduct of the company and its advisers. The primary purpose of those investigations was, no doubt, to see if the company’s claim for deductions was justified, or not, and to fix the wholesale value accordingly; but, at the same time, for the commissioners to be in a position to contest the company’s claim, if it came to a fight, in which case the documents would contain ammunition to put before the solicitor.

I ask myself: can the commissioners properly claim legal professional privilege for these internal documents? I think they can … They were obtained as material to place before the solicitor if it came to a fight, as the commissioners anticipated that it might.

I would qualify that statement of principle, by further adopting the view expressed by the House of Lords in Waugh, that the dominant purpose for the document coming into existence in the first place should have been the purpose of preparing for litigation then apprehended or threatened.

I am satisfied, from a perusal of the Departmental file in this case that no question of privilege based on public interest arises in this case. Some of the documents contain minutes of meetings of the Standing Veterinary Committee of the European Economic Community held in Brussels, at which the outbreaks of avian influenza in Ireland were discussed. It seems to me that the relevant extracts from those minutes are discoverable.

A supplemental affidavit of discovery should not be filed on behalf of the defendants, in which the claim of legal professional privilege should be confined to documents coming into existence on and from 26 March 1984, for the purpose of obtaining legal advice from their solicitors with reference to litigation contemplated between them and the plaintiffs, and for the purpose of preparing the case for the defence in such contemplated litigation.

With regard to documents coming into existence prior to that date, or with regard to documents coming into existence at any time where it cannot be maintained that the primary purpose for the document coming into existence was the preparation for litigation pending or threatened between the parties, such documents, if relevant, should be discovered without a claim of privilege.

Finally, the supplemental affidavit of discovery should also deal specifically with the matters referred to in paragraphs 5 to 14 (inclusive) or Mr Steele’s affidavit of 7 June 1986, and should contain discovery of the documents therein mentioned or account for the defendants’ failure or refusal or inability to make discovery of such documents.

Director of Consumer Affairs v Sugar Distributors Ltd

[1991] ILRM 395
Costello J.
The plaintiff is the Director of Consumer Affairs and Fair Trade. In May 1988 he received a complaint from a firm called ASI International Foods Ltd. It was a serious one. It was that the defendant herein, Sugar Distributors Ltd, which is a subsidiary of the Irish Sugar Company, had breached the provisions of the Restrictive Practices Acts 1972 to 1987 and, in particular the Restrictive Practices (Groceries) Order 1987. He caused one of his inspectors to investigate it and these proceedings followed.

What is alleged against the defendant is this. ASI International Foods Ltd imported sugar into the State for sale to the Irish public under the name Eurolux. It then sold a large quantity of its Eurolux sugar to a wholesale firm called Allied Distributive Merchants Ltd, which has been described as the wholesale arm of a large group of independent retail grocers in the well known Londis group. The defendants are the distributors of Irish sugar manufactured by the Irish Sugar Company. It is claimed that contrary to the relevant statutory provisions the defendants (a) purchased for 10,000 21.01 metric tonnes of Eurolux sugar from Allied Distributive Merchants with a view to eliminating or restricting competition in the sugar market, and (b) that for the same purpose it entered into an arrangement with the owner of a retail grocers in Boyle, Co. Roscommon by which it replaced his stock of Eurolux sugar by Irish sugar supplied by it.

An order for discovery was made. This motion followed because the director claimed that he was not, as a matter of law, required to permit inspection of certain relevant documents in his possession. These (listed in paragraph A in a schedule to a letter of 24 January 1990 to the defendants solicitors) comprise ten letters passing between the managing director of ASI International Foods and the managing director of Allied Distributive Merchants, an invoice relating to a consignment of sugar to Allied Distributive Foods, and a letter from the managing director of ASI International Foods to the Irish Sugar Company. (In addition there are three letters listed in paragraph C of the schedule to the same letter which are copies of three of the letters referred to at A and no separate issue in relation to these arises). The director obtained all these documents as part of a complaint made to him by ASI International Foods that the defendant had breached the restrictive practices legislation and he submits that he is not required to permit inspection of documents which have come into his possession as part of a complaint made to him by a member of the public.

I think his submission is well founded, for the following reasons.

The law of evidence has long recognised that the public interest may require that relevant documents be excluded from inspection or even disclosure in both civil and criminal proceedings in two distinct situations. The first situation relates to affairs of state. Because the public has an interest in the proper functioning of the public service and because the proper functioning of the public service may in certain circumstances require that relevant documents be withheld from disclosure and inspection in legal proceedings the law will protect this public interest by refusing disclosure or inspection. But the law also recognises that the public has an interest in the proper administration of justice and so it has been decided (Murphy v Dublin Corporation [1972] IR 215) that the courts must examine the documents whose inspection is refused on the grounds of executive privilege and decide which course, inspection or refusal of inspection, would do least harm to the public interest (p. 235). The court is required to balance the need to protect the privacy of the public service against need to avoid a possible injustice to litigants.

The second situation relates to the public interest in preventing and detecting crime. It has been long established that as a general rule the identity of police informers need not be disclosed as otherwise the information to enable the police to deter and detect crime might not be forthcoming (Marks v Beyfus (1890) 25 QBD 494). As is explained by Lord Diplock in D. v NSPCC [1978] AC 171 at 218:

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

In England the principle established in Marks v Beyfus was extended to persons from whom the Gaming Board received information for the purpose of the exercise of their statutory functions under the Gaming Act 1968 (see R. v Lewes Justices, ex parte Secretary of State for the Home Department [1973] AC 388) and to persons who give information to the NSPCC about alleged ill-treatment of children. In the latter case (cited above) Lord Diplock pointed out (p. 219) that it was a matter for the judge who heard at first instance the motion to weigh the competing public interests involved in disclosure and non-disclosure and to form his opinion on which side the balance fell. He held that the trial judge had been right to allow the claim of non-disclosure of the complainants name stating:

I would extend to those who give information about neglect or ill-treatment of children to a local authority or the NSPCC a similar immunity from disclosure of their identity in legal proceedings to that which the law accords to police informers. The public interests served by preserving the anonymity of both classes of informants are analogous; they are of no less weight in the case of the former than in that of the latter class, and in my judgment are of greater weight than in the case of informers of the Gaming Board to whom immunity from disclosure of their identity has recently been extended by this House.

And he made clear that the public interest to be protected in the case before the court was the effective functioning of an organisation authorised under the Act of Parliament to bring legal proceedings for the welfare of children (pp. 220221).

All the functions of the examiner under the Restrictive Practices Act 1972 are transferred to the director. The director is now empowered to investigate any aspect of the operation of an order made under the 1972 Act (s. 6 of the 1987 amending Act); powers of entry and search are conferred upon him to enable him to carry out his investigative functions (s. 17 of the 1987 Act); he is empowered to institute criminal proceedings for offences under the Acts (s. 22 of the 1987 Act) and apply for injunctive relief to enforce compliance with orders (s. 55 of the 1980 Act). Thus the Oireachtas has conferred on the director important law enforcement functions. I am satisfied that it is in the public interest that the court should protect the effective functioning by the director of his statutory powers. I am further satisfied that to enable him to exercise his powers effectively he must be able to assure complainants that information given to him (and, indeed, in certain circumstances the names of complainants) will be treated in confidence and not disclosed as otherwise complaints may not be forthcoming and breaches of ministerial orders are likely to go undetected. The requisite protection should embrace all documents forwarded by a complainant with a complaint.

But the immunity granted cannot be an absolute one. When a claim is made, as it has been in this case, that it is not in the public interest that relevant documents in the directors possession should be inspected, the court should examine the documents. If satisfied that they form part of a complaint made to the director by a member of the public that a breach of the restrictive practices legislation or orders made thereunder has occurred inspection should not be allowed unless the court concludes that the documents might tend to show that the defendant had not committed the wrongful acts alleged against him.

I have followed this course in this case. The disputed documents were all documents forwarded to the director as part of a complaint made by ASI Foods that breaches of restrictive practices legislation had occurred. They do not tend in any way to show that the defendant was not guilty of the wrongdoing alleged against it. I will therefore not allow their inspection.

Mulcahy v. Avoca Capital Holdings Ltd.

 

[2005] IEHC 136 (14 April 2005)
[2005] IEHC 136
THE HIGH COURT
DUBLIN
Case No. 2004/19810P
MR. KIERAN MULCAHY
Plaintiff
and
AVOCA CAPITAL HOLDINGS LTD
Defendant
APPROVED JUDGMENT DELIVERED BY MR. JUSTICE CLARKE ON THURSDAY, 14TH APRIL 2005
This matter has already been before the court on a Number of occasions and, in particular, there are transcripts of judgments delivered by me on both the 26th January and 11th March last. It is therefore unnecessary to set out he history of the case as recorded in those judgments. The issue which now requires to be determined is as to the terms upon which the plaintiff’s experts are to be given access to certain computer materials which are the property of the defendants.

As is clear from the judgment of 11th March, the issue before the court on that occasion was the same, in that three principal questions concerning the scope of the entitlement of the plaintiff through his experts to have access to the defendant’s computer materials were then litigated and determined. Before going on to set out the issue that is now before the Court, it is perhaps important to emphasise, as I noted in the judgment of he 11th March, that it was and is somewhat unusual for the court to be asked to rule on the details of matters such as this at an interim stage in a disciplinary matter.

It should also be noted that there has been no formal discovery motion as such before the court and, in one sense, it might be said that the issues which are now before the court arise in two different ways. Firstly, the plaintiff in these proceedings contends, amongst other things, that certain of the accusations against him are not made bona fide, and in that regard relies on a contention to the effect that the general practice within the defendant company was that many persons had access to a variety of computers, even though they might not, strictly speaking, be within their own remit. Clearly, if he were to establish as a matter of fact that the joint managing directors of the defendant had engaged in practices concerning access which were similar to those which he himself may or may not be established to have engaged in, then that would be significant material in the case which he might be able to make in these proceedings to the effect that the suspension under which he now stands was not bona fide made. Therefore, to that end, discovery is potentially relevant.

Also, as a matter of practicality, the plaintiff will be entitled, as a matter of fair procedure in the conduct of the disciplinary process which is currently in being within the defendant company, to be given a reasonable opportunity to make his defence, which would include of course an ability to make a point of the type which I have just indicated.

It is fair to say that in the ordinary course of events under either of those headings it would be somewhat premature to deal with an issue of discovery in that in the ordinary way one would not deal with discovery at this stage in court litigation until the pleadings had closed and, in the ordinary way, as I indicated in the judgment of 11th March, the court would not give rulings as to the procedures which were to be followed in an internal disciplinary process while that process was in being.

However, as I again pointed out in the judgment of 11th March, the parties, in effect, invited me to resolve their differences in relation to this matter under wither of the above headings, and I proceeded so to do insofar as it was possible on the information available at that stage.

Finally, by way of background, I should note that when I gave an initial indication when this matter was first before the court, on 21st December, to the effect that the plaintiff should have access to the relevant computer materials, I did so in the context of fair procedures issue rather than a discovery matter, there being no discovery application before the court at that stage.

Having set out that background, it is necessary to indicate what was determined on 11th March and to set out the disputes as to the implementation of what was so determined that have now arisen. As is pointed out at page 5 of the judgment of the 11th March, there were three real issues in contention at that stage. The first was the scope of the computers in respect of which inspection was to be allowed; second was the terms of the confidentiality undertakings to be given by the experts; and third was the circumstances and, in particular, the location in and at which access was to be given. Item 2 is no longer a matter of contention, but in a sense both items 1 and 3 are, in the context of the disputes that have now arisen.

In the course of determining the first question, I indicated that certain computers did not appear to me to be relevant, but that three of the computers, which had already been the subject of investigation by the defendant company, appeared to remain relevant and that access should be given to them. I also ruled that the plaintiff should have access, subject to a signigicant caveat, to the computers of the two joint managing directors, that caveat is as set out at page 8. It was to the effect that such access should only be to the extent where it could be shown to be necessary to explore whether either of the two individuals concerned accessed materials that were properly in the domain of other employees and to which they would not normally have access. As the Judgment notes, there was no evidence before the court as to the practicalities of imposing limitations in the manner suggested and, therefore, I expressly declined to make a definitive ruling but indicated that I felt it appropriate to set out the principle.

In those circumstances it does not seem to me, firstly, that I am necessarily bound by the precise findings set out in that judgment, because clearly on its own terms it is subject to the necessity of clarification in the light of there being evidence as to the practicalities involved. Clearly, it would be inappropriate for me to depart from the general principle which I had set out, and I would not propose doing so in any event, but one should not read the judgment over literally because it was, as it says, based upon a conclusion as to a general principle rather than the precise implementation of that principle. I was, as I indicated, unable to deal with the precise implementation because there was just no evidence from either side before the court as to what might be practical or not.

It is in that context that the first major question that I have to determine arises. It is as to the conditions that should be put in place to enable the caveat to be complied with. The defendants through their solicitors have set out, in the terms of a draft letter which was produced in argument, the terms upon which they believe it would be reasonable to allow Messrs. Grant Thornton, the plaintiff’s experts, to have access to the computers of the two joint managing directors.

The difficulty that arises, and it is one which is identified at least in general terms in the judgment of the 11th March, is as to the extent to which it is practicable or reasonable to make restrictions on the access of the plaintiff’s experts for the purposes of protecting the confidentiality or, indeed, the privilege that may attach to materials which are contained within those computers. I think it is important firstly to emphasise the reason in principle why that caveat is necessary.

As a matter of law, the plaintiff is not necessarily entitled in the ordinary way to any of the information present on either of the joint managing directors’ computers. He may or may not, in an entirely different sense, be entitled to access to some of that material in his capacity as a director, but it doesn’t seem to me that that necessarily advances matters to any great extent in that, firstly there may well be materials which would be private to the joint managing directors in any event and to which a fellow director would not necessarily access; and secondly, there is the potential that there may be material relevant to the company’s position in respect of the issues that are now before the courts which would be privileged. It does not seem to me, therefore, that the fact that the plaintiff is a director really advances the matter to any great extent.

Secondly, while in the ordinary way the fact that materials may be confidential does not exclude them from being liable to discovery (the exclusion being only available in respect of documents which are subject to privilege) that nonetheless begs the question as to whether the materials are in fact relevant to the case in the first place. Obviously a party, such as the defendant in these proceedings, is entitled not to have confidential material made available to any party unless there is a reasonable basis for believing that that material is relevant to the proceedings and its discovery is necessary or expedient for the fair resolution of the proceedings.

So the starting position has to be that it is necessary for the plaintiff to establish that he must have access to a particular set of materials in order to further his case or damage the defendant’s case. The mere fact that there may be more expedient ways of going about it, does not seem to me to be particularly relevant. The plaintiff cannot have an entitlement to have access to documentation simply because it may be an easier or cheaper way of dealing with matters. He does not have a legal entitlement to look at any more than is necessary for the purposes of the case. In those circumstances, as a general principle. I have come to the view that it is possible for the plaintiff to deal with the matters which he wishes to deal with through the procedures which are set out in the draft letter.

They may well be more cumbersome — there is a difference between the experts, which quite frankly I can’t resolve, as to the extent to which it may be more cumbersome — than those which might have to be followed had the plaintiff’s experts had access to the entirety of the data. But is seems to me that the overriding principle is that it would not be correct to give the plaintiff’s experts access to a large volume of information, which the plaintiff is not entitled to, unless it were impossible, or so ruinously expensive as to be impractical to do it any other way. I do not believe that the balance of justice would require that the plaintiff should be given access to documents to which he is not basically entitled. If one takes the analogy with ordinary documentary discovery I am happy to have the authorities referred to me which make it clear that as a matter of court discovery access to electronic records is in fact discovery. Exactly the same principles apply insofar as we may be dealing with the possibility that the plaintiff may, as a matter of pair procedures, be entitled to access. While disclosure is not formally a discovery process nonetheless an analogous process applies. Therefore, in either case, the rules applicable to determining the circumstances in which access should be had would be those which would be applicable in the case of ordinary documentary discovery.

In those circumstances it is frequently the case that confidential materials are involved that parties are given blacked out copies of documentation (where signigicant protions of that which is made available is blanked out) because only a portion of a confidential document may be material to the proceedings and, it has to be said, in the ordinary discovery process, to a very large extent, the party seeking and obtaining discovery has to take the other side’s word for it that what is blacked out is not relevant. Unless there is some compelling reason in evidence to suggest that materials have been blacked out which ought not have been blacked out, the court would not in the ordinary way go behind the sworn statement of the party making discovery as to what portion of a document is relevant.

Therefore, which I accept what the plaintiff’s expert says, to the effect that he would much prefer unfettered access, it does not seem to me that that is what the plaintiff is legally entitled to.

Therefore, I would propose that access to the relevant computers should be subject to the conditions set out in the draft letter subject to one further qualification. It is clear that if material is relevant the defendants have no discretion in declining to allow Grant Thornton to see that documentation. Equally, I have already ruled that Grant Thornton are entitled to take away that information. That was a matter in contention on the last occasion and I resolved that in favour of the plaintiff, and I don’t propose revisiting that. So insofar as relevant material may be discovered in the course of he searches, which will be carried out in accordance with the draft letter, then it is not a matter in the gift and favour of the defendants to allow Grant Thornton both to obtain that information and to take it away for further analysis; that is a matter of entitlement on the part of Grant Thornton, behalf of the plaintiff,

Clearly, there may be a dispute as to whether material is relevant. I obviously cannot resolve any such dispute that might arise at this stage, and that unfortunately raises the prospect that the matter may have to come back to court, but I don’t see that there is anything that can be done about that. That leads me to the final point that I wish to make on this topic.

It emerged in the course of the evidence that in one sense there may well to two questions that have to be answered, the first question is: to what materials have the joint managing directors had access? The second question, which might arise in certain cases, is as to whether the fact that they had had access to a particular document might be a matter which would advance the plaintiff’s case in the way in which I put that case?

It is conceivable that there may be circumstances where it might be necessary to look at all or a part of such a document to be able to answer that second question. It may well that in many cases the identity of the document as specified in the computer records may be sufficient to determine its nature, but one cannot rule out the possibility that the contents of the underlying document might be relevant for that purpose. Therefore, it seems to me that it is possible, within the meaning of the principle which I identified in the judgment of the 11th March, that in certain limited cases access to the original document might be relevant. As I indicated in that judgment, the purpose for which access of this type is to be permitted is “to explore whether either of the two individuals concerned access materials that were properly in the domain of other employees, and to which they would not normally have access.” If it can be shown that they had access to a document, and if there is a reasonable case to make that it is necessary to look at that document to ascertain whether it is a document of a class that would put it properly in the domain of other employees, and to which they would not normally have access, then it may be necessary to look at such a document, but only in those circumstance.

Therefore, having had the benefit of evidence, it seems to me that the process should be fine-tuned in this way. The initial investigation should be to ascertain by whatever investigative methods Grant Thornton consider appropriate the documents to which the joint managing directors have had access without looking at those underlying documents. If it becomes necessary to look at those documents in order to ascertain whether they are documents in the class that I just identified, then it may be necessary to go to the underlying documents, but that is a matter that should only be addressed after it has been established that access has been had to the document and also that there is some reasonable basis for being concerned that it might be a document of a class to which they should not have had access.

The final point I would like to comment on is the argument put forward in evidence on behalf of Grant Thornton, which amounted to a plea for the protection of their proprietary methods. A court must always, in Circumstances such as this, be concerned not to expose experts to any unnecessary exposure of the benefits of their craft, as it were, but it does have to be said that a person who presents themselves as willing to act as an expert in proceedings necessarily exposes their methods to investigation in court. Just to put it at its mildest, if Grant Thornton and Ritz were to give evidence in a trial which conflicted as to their findings, the only way the court could resolve that conflict would be by investigating their methods and forming a view as to which method is better. So it seems to me, as a matter of principle and a matter of practice in this case, an expert just cannot stand on ceremony in that way; by being available to give forensic evidence in proceedings and expert is potentially exposing his methods to detailed investigation. He cannot say, “I am going to give evidence but I am not going to tell people how I carried out my inquiries.” While a court should not make any directions that would unnecessarily expose the skills of an expert, it nonetheless seems to me that there is a limit to the extent to which those methods can be protected and, therefore, on the facts of this case I would not place any significant weight on that concern on their part.

I did place more weight on their concern about the extent to which the processes being proposed by the defendants might be more onerous, both as to time and money, but for the reasons which I have already indicated I think on balance the overriding consideration has to be that the plaintiff is not entitled to access to information which is not relevant to the proceedings, and only then where it is absolutely essential that that should be so.

Therefore, I would propose directing that the plaintiff have access to the computers of the joint managing directors of the defendant on the terms set out in the draft letter, my copy of which I will note and it will be annexed to the order fro the avoidance of doubt. I will further direct, for the avoidance of doubt, that Grant Thornton are entitled to take away any materials that are relevant to the issues which are discovered in the course of the process set out in that letter for such further investigation as they consider appropriate. Finally, I will direct that access to original underlying documentation is only to occur where such access is necessary for the purposes of determining whether a document was one to which the joint managing directors should not have had access in circumstances where it has already been established that they did have such access.

They seem to me to be the directions. There obviously is potential for further dispute, but I don’t think that can be avoided until the process

commences. On the basis of my understanding of the matter at this stage, I think that is as far as I can put it.

Approved judgment of Mr. Justice Clarke

O’Q. -v- Judge Buttimer

[2009] IEHC 25 (26 January 2009)

 

BETWEEN

D. O’Q.
APPLICANT
AND
HER HONOUR JUDGE OLIVE BUTTIMER

RESPONDENT
AND
M. O’Q.

NOTICE PARTY
JUDGMENT of Mr. Justice John Edwards delivered on the 26th day of January, 2009
Introduction
This matter comes before me by way of an appeal against an Order for Discovery made by the Master of the High Court on 29th day of October, 2008. This Order was made on foot of a Notice of Motion issued by the applicant on the 3rd day of July, 2008 and which was grounded upon the pleadings already had in these proceedings, including an affidavit of D. O’Q. filed on 12th June, 2006. The Master’s Order as perfected and exhibited before me is in terms:

“…that the respondent do within nine weeks from the date hereof make discovery on oath of the following documents which are or have been in her possession or power : Judge Buttimer’s notes in regard to the Kilkenny Circuit Court hearing on 2nd June, 2005 Case No. D. 24/2002, the affidavit on behalf of the respondent to be made by Judge Olive Buttimer.”

Background to the proceedings
The applicant and the notice party were parties to, and the respective protagonists in, certain family law litigation that came before the respondent in 2005 when she was sitting as the Circuit Judge for the South Eastern Circuit in the County of Kilkenny. The relevant proceedings bore Circuit Court Number D. 24/2002.
The applicant in the present proceedings was the respondent in the Circuit Court proceedings. Moreover, the notice party in the present proceedings was the applicant in the Circuit Court proceedings. For the avoidance of confusion I will refer to the applicant in present proceedings as the “husband” when referring to the Circuit Court proceedings. Similarly, I will refer to the notice party in present proceedings as the “wife” when referring to the Circuit Court proceedings.

In the course of the family law litigation in the Circuit Court there were hearings on three dates which are relevant to issues that I have to decide in the present appeal. These hearings took place on the 5th May, 2005, the 2nd June, 2005 and the 15th December, 2005, respectively.

At the hearing on 5th May, 2005 the Circuit Court Judge had had to consider whether a foreign divorce granted in South Africa in June, 1994 should be recognised in this State under s. 29(1)(e) of the Family Law Act, 1995. The learned Circuit Court Judge ruled that this divorce should not be recognised. The husband disagreed with that ruling and subsequently, on the 25th May, 2005, initiated Judicial Review proceedings against the learned Circuit Court Judge with a view to having her Order quashed.

There was then a further hearing before the learned Circuit Court Judge on 2nd June, 2005 in relation to a different aspect of the matter. On this occasion the issue concerned the maintenance to be paid by the husband to his wife in respect of their three dependent children. At the time of the maintenance hearing on 2nd June, 2005 there was an existing maintenance order in place whereby the husband was required to pay €1,000 monthly in advance to the wife in respect of the three dependent children, representing three equal monthly payments of €333.33 per child. It appears that the wife was seeking an increase in maintenance, presumably on the grounds of a change in circumstances. It was common case that the eldest child H. was due to enter third level education in October of that year and was intending to take up a place at DCU. The husband’s account of what occurred in the Circuit Court on the 2nd of June 2005 is set out at para. 6 of an affidavit which he has sworn in the present proceedings on the 9th June, 2006. He deposes therein to the following matters:-

“I say and believe that at the maintenance hearing of the 2nd June, 2005 that I was asked by the judge what I was willing to pay by way of increased maintenance. I said that I was willing to cover all of H.’s college expenses, including fees, living expenses and accommodation and to pay these monies directly to H. (H. was commencing college in DCU in September, 2005) and also to continue to pay the current maintenance to the applicant of €667 per month in respect of the other two dependants, C. and S. The Judge commented directly to the applicant’s counsel that the offer seemed a very fair offer. The applicant’s counsel after discussion with their client said that they were seeking in addition to the increased maintenance on offer covering H.’s college expenses that they were also looking for a further 50% increase in the maintenance in respect of the other two children, and wanted €1,000 per month to be paid to the applicant (€500 per child per month). I argue that I could not afford to cover both and as it stood I would have to extend my debt just in order to cover the cost of H.’s college expenses. The judge rejected the applicant’s request and ruled that I should pay for H.’s college expenses when he starts in September, 2005 and pay €667 per month in respect of the other two children but in the interim should continue to pay to the applicant until September the €1,000 per month in respect of the three children while H. is at home.”

It appears that neither side took up a copy of the learned Circuit Court Judge’s order of the 2nd June, 2005 in the immediate aftermath of the hearing. The husband paid maintenance to the wife in accordance in what he believed had been ordered by the learned Circuit Court Judge. Accordingly he continued to pay €1,000 in respect of the three children for each of the months of July, August and September. Then in October, he paid for H.’s college fees and boarding and paid €333 directly to H. to cover his living and other costs. He also paid €667 directly to the wife in respect of the other two children.
Shortly after these October payments had been made the wife purported to dispute the husband’s interpretation of the learned Circuit Court Judge’s Order made on 2nd June, 2005, and to contend that the learned Circuit Court Judge had in fact directed the payment of increased maintenance (i.e. maintenance increased from €333.33 to €500.00 per child per month) from October onwards.

On 19th October, 2005 the husband wrote to the County Registrar seeking clarification on the issue and requesting that the matter should be listed before the learned Circuit Court Judge as soon as possible. The County Registrar arranged for the matter to be listed again before Judge Buttimer on 15th December, 2005 so that the parties could ask the Court to clarify it’s order. Moreover, in the course of replying to the husbands’ correspondence the County Registrar enclosed a copy of the court clerks note concerning what had occurred on the 2nd June, 2005. The husband believed (and continues to believe) that this note supports his interpretation as to how learned Circuit Court Judge had ruled on 2nd June, 2005.

At paras. 11 and 12, respectively, of his affidavit of the 9th June, 2006 the husband gives his account concerning what happened before the learned Circuit Court Judge at the hearing on 15th December, 2005. He states:-

“11. I say and believe that at the hearing of 15th December, 2005, Judge Buttimer said that the Order was “quite clear” and read from her notes of the 2nd June, 2005 stating that there was an interim order whereby I should continue to pay until September, the €1,000 per month in respect of the three children to the applicant while H. is at home and thereafter pay for H.’s college fees, accommodation and living expenses and the apportioned amount of €667 per month in respect of the other two dependents. This agreed and was the same as my interpretation of the 2nd June, 2005 maintenance hearing.
12. The applicant disputed this statement from the Judge vehemently and continued to do so for some period. During this period Judge Buttimer read through the case file and noted the application by myself, the respondent, the application seeking a Judicial Review against herself on the ruling regarding the recognition of the foreign divorce made on 5th May, 2005. Judge Buttimer asked me why she had not been served with the Judicial Review application. I replied that I had served it via the Kilkenny County Registrar in accordance with Order 84 of the Superior Court Rules. The applicant continued to contradict the statement made by Judge Buttimer and then the Judge read out another statement which contradicted her original statement and were in the words of the applicant’s solicitor, stating that I should in addition to paying H.’s college fees, accommodation and other expenses, also increase maintenance payments to €1,000 in respect to the other two dependants, C. and S.. I argued that I could not afford to pay this money as that as I was already extending my debt just to cover the payment of H.’s college expenses and that it was an impossible order. Judge Buttimer advised that if I wished to, that I could lodge an application seeking a reduction in maintenance due to a change in circumstances. Judge Buttimer further added that any such application should be heard before any Judge other than herself due to the matter involving the Judicial Review proceedings brought by myself which would only allow for biased interpretation of any further rulings by herself.”

The applicant in the present proceedings was unhappy with the learned Circuit Court Judge’s ruling at the clarification hearing on 15th December, 2005. He has initiated the present proceedings with a view to having the maintenance Order made by the learned Circuit Court Judge on 15th December, 2006 quashed. To that end he applied to Mr. Justice O’Neill in the High Court on 19th June, 2006 seeking leave to apply for an Order of Certiorari by way of judicial review and was refused leave. He then appealed Mr. Justice O’Neill’s Order to the Supreme Court and was successful.
By Order of the Supreme Court dated 25th April, 2008, he was granted:

“…leave to apply for an Order of Certiorari by way of application for judicial review as set forth in para. D. of the Statement dated 12th June, 2006 on the grounds set forth at para. E in the aforesaid statement.”

The relief sought at para. D in the applicant’s Statement dated 12th June, 2006 claims:-

“An Order of Certiorari to quash the maintenance order made by Judge Olive Buttimer in the Kilkenny Circuit Court family law on 15th December, 2006, record number D. 24/02”.

The grounds upon which that relief is sought are set out at para. E in the said Statement as follows:-

“(1) Judge Buttimer was wrong to make an impossible maintenance order when at neither the 2nd June, 2005 nor the 15th December, 2005 clarification hearing was there any presentation, discussion or verification of means, income or expenditure by either the applicant or respondent. The Judge was procedurally incorrect to make a maintenance order other than what is volunteered and is contrary to proper court procedure as stated in the Status of Children Act, 1987 – s. 17 and 18 (5)(a).
(2) Judge Buttimer on 15th December, 2005 hearing upon being requested for clarification of an order that she made on 2nd June, 2005 (this order was not perfected until the 18th January, 2005 after the 15th December, 2005 hearing) made an maintenance order that contradicted both the judge’s own notes of 2nd June, 2005 hearing as was read out by the judge on 15th December and the court clerk’s notes of 2nd June, 2005 hearing and ruled based upon the applicant’s solicitor interpretation of the ruling of the 2nd June, 2005, this is procedurally incorrect.

(3) The judge was procedurally incorrect to make any ruling on 15th December as the respondent had lodged judicial review proceedings against the judge on 25th May, 2005 with regard to the judge’s ruling made on 5th May, 2005 in the matter of the recognition of foreign divorce granted in South Africa under s. 29 (1)(e) of the 1995 Family Law. The judge should have excused herself from the case without making any rulings as any ruling would be considered biased against the respondent.”

Following his successful appeal to the Supreme Court the applicant brought a motion before the Master of the High Court dated 3rd July, 2008 seeking an Order for Discovery of Judge Buttimer’s notes in regard to the Kilkenny Circuit Court hearing on 2nd June, 2005 in Case No. D. 24/02. The applicant sought this discovery purportedly in aid of his judicial review proceedings. The matter came on for hearing before the Master on Wednesday 29th October, 2008 and, as I have previously indicated, the Master acceded to the applicant’s application and granted an Order for Discovery. The terms of his Order were as I have recited them in the introduction to this judgment. The respondent has now appealed to this Court against the Master’s Order
In support of the appeal this Court has before it an affidavit of one Emma Golden, a solicitor in the office of the Chief State Solicitor. She states that she is dealing with the matter on behalf of the respondent and she makes the usual averments with respect to her means of knowledge. It is not necessary for the purposes of this judgment that I should recite the contents of her affidavit in full and it will suffice if I summarize the points made therein. It should be stated that the contents of this affidavit are predominantly in the nature of legal submissions rather than evidence as to matters of fact, but no point was taken on this. She contends that the Master ought not to have made the Order in question for a number of reasons.

First of all, she makes the point that the Master was not entitled to make the order in circumstances where no affidavit grounding the application for discovery had been sworn or was before the court, and she states that the need for such an affidavit is clearly required by O. 31 of the Rules of the Superior Courts.

Secondly, she complains that the applicant did not send a request for voluntary discovery, identifying the reasons therefore, as provided for in O. 31 r. 12 of the Rules of the Superior Courts.

Thirdly, she contends that it was inappropriate to order discovery in circumstances where discovery of the particular material sought could not in any event aid the applicant. Ms. Golden complains that the applicant has failed to demonstrate why he says that the documentation sought is relevant and necessary in the context of the relief that he is claiming. In this regard she exhibits a course of correspondence between the applicant and the Kilkenny County Registrar, marked “EG 2”, to demonstrate that the applicant has already been provided with, on request, copies of the notes made by the court clerk who was sitting as the Circuit Judge’s Registrar on the 2nd of June, 2005.

Fourthly, she avers that she has instructions to the effect that the respondent does not intend to take any part in these proceedings and that the only potential legitimus contradictor to the application will be the notice party. She avers that, to date, no opposition papers have been filed by or behalf of the notice party. She submits that discovery should only be ordered in aid of some issue that emerges from information contained in the affidavits filed in response to the application. Since no affidavit has been filed in response to the substantive claim for relief, it was inappropriate and incorrect to order discovery.

Fifthly, Ms. Golden further submits that the personal notes taken by a Judge in the context of legal proceedings do not form part of the court file and they are therefore outside the scope of any application for discovery or disclosure, whether in the context of subsequent or other proceedings or whether available to a party to such proceedings as a matter of entitlement.

I also have before me an affidavit sworn by the applicant on the 20th November, 2008, for the purpose of replying to Ms. Golden’s affidavit. Once again it is not necessary for me to recite the entire contents of this affidavit and it will suffice if I summarise the points made therein.

With respect to the point that there was no affidavit before the Master grounding the application for discovery the applicant contends that the Master accepted the sworn affidavit that was on file, namely his affidavit of the 9th June, 2006, and that this affidavit fulfils the requirements of O. 31 of the Rules of the Superior Courts.

In response to the contention that there was no request for voluntary discovery the applicant disputes this. He contends that he made two requests made for voluntary discovery and that these were communicated via the Kilkenny County Registrar. In fairness to the applicant, Ms. Golden did exhibit, as part of the bundle of correspondence marked EG 2 to which I have previously referred, a letter from him to the Kilkenny County Registrar dated the 8th May, 2008, in which the applicant does request the County Registrar to make available to the High Court, inter alia, “an attested copy of Judge Buttimer’s notes of the hearing of the 2nd June, 2005, in respect of case No. D24/02”. Further, this letter also enclosed a copy of the pleadings in the current judicial review proceedings. The applicant contends that it would have been self evident to any person reading that material as to why he wanted discovery of the document in question.

In response to the third matter raised by Ms. Golden the applicant contends that discovery of the judge’s notes “would conclusively reinforce the judicial review claims”.

In response to the fourth matter raised by Ms. Golden, the applicant contends that in circumstances where the respondent does not intend to take any part in these proceedings her notes would provide the only true record of the hearing of the 2nd June, 2005, and that they are therefore essential.

In response to Ms. Golden’s fifth point, the applicant states:

“this entire case has evolved due to misinterpretations, misunderstanding and ambiguity and in an in- camera court hearing where personal recordings are not accepted as legitimate records, then the only true record of what was ruled by the judge is indeed the judge’s notes themselves. The judge’s notes are the least to be expected where dispute arises over what was understood to have been said by the judge particularly when rulings in the lower courts are not made in writing by the judge compared to that of their superiors in the Supreme Court”.

The applicant further avers that at the time of making his discovery Order the Master, having first of all quoted Article 40 of the Constitution (I would infer that the applicant is referring specifically to Article 40.1 of the Constitution) then commented that all are equal under the law and that judges as public servants were no exception to this rule.
The Law
Whilst it is true to say that the Constitution does provide in Article 40.1 that “all citizens shall, as human persons, be held equal before the law”, the critical wording here is “ . . . citizens, as human persons . . .” In Quinns Supermarket Limited and Another v. The Attorney General and Others [1972] I.R. 1, the Supreme Court has held that the guarantee “refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow”. All judges are of course human persons and qua other human persons they must indeed be held equal before the law. However, the entitlement of a judge on the Bench to administer justice does not derive from any facet of his or her human personality but rather from the fact that the judge is a constitutional officer appointed in accordance with Articles 34, 35 and 36 of the Constitution.

Article 34.1 provides that justice shall be administered in courts provided by law by judges appointed in the manner provided by this Constitution. Article 34 also provides, inter alia, for the establishment of courts of first instance and also a court of final appeal to be known as the Supreme Court. The courts of first instance are to include a High Court invested with full original jurisdiction and also courts of local and limited jurisdiction. Both the Circuit Court and District Court are courts of local and limited jurisdiction. Article 35.1 provides that the judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 shall be appointed by the President. Article 34.5 specifies the form of the declaration that is to be made by every person appointed a judge under the Constitution, and further specifies where, or before whom and when that declaration shall be made. Article 35.2 provides that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law. Article 35.4.1 protects the security of tenure of Supreme Court and High Court judges. Accordingly a judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his or her removal. Judges of the other courts depend upon statute for their guarantee which is in similar terms. Article 35.5 provides that the remuneration of a judge shall not be reduced during his or her continuance in office.

It follows from all of this that a judge, when acting as a judge, is not equal to, but rather is in a different position to, other citizens and indeed other public servants. He or she has a constitutionally guaranteed independence and freedom of action, subject only to the constitution and the law, and this is something that must be vigorously defended in the public interest.

Moreover, and as a support to the principle of judicial independence, judges have immunity from suit in respect of things said and done by them as judges, providing that they do not deliberately and consciously act in excess of their jurisdiction. The reasons for this are obvious. Judges cannot be always looking over their shoulders in the performance of their judicial functions out of concern for being sued, or in some other way being made answerable, for their actions. Morris P. explained the necessity for, and the limits upon, judicial immunity in the case of Desmond v. Riordan, [2000] 1 I.R. 505 when he said:

“… the granting of an immunity to the judiciary of necessity imposes a limitation upon the constitutional rights of the citizen to vindicate his good name and so the limitations placed upon the exercise of this right must strictly limited to the degree to which the granting of the immunity may be necessary to achieve its objectives, namely to enable the judge to administer the law freed of the concern that he will made answerable for his actions.”

In the view of this Court a strong argument can also be made in favour of the existence of a constitutional immunity or privilege rendering a judge’s notes non-compellable in any proceedings, in further support of the principle of judicial independence as enshrined in Article 35.2 of the Constitution.
In the view of this Court the order made by the Master of the High Court is objectionable on number of grounds. First of all, the Court is concerned that it represents an impingement upon the judge’s constitutionally guaranteed independence. A judge’s notes are a personal aide memoire taken by the judge in the course of a case. They are intended for the judge’s use and the judge’s use alone. They are not intended to be referred to or used by any other person. A judge’s notes are unlike, for example, hospital or medical notes in that there is no requirement that they should be generated and kept according to any established protocol. Nor is a judge required to use any standard form of notation. Some judges may write everything down in every case. Other judges may do that in some cases but in other cases may prefer to listen carefully to the evidence or to the arguments, or to observe the demeanour of a witness, taking only essential notes. Sometimes an extensive note may be taken because of the length of the case, the complexity of it or the likelihood of judgment being reserved. At other times a judge might regard an application or case as being straight forward and as not require the taking of a very detailed note, for example, where the case is flagged as being a short one and judgment is likely to be delivered on the same day. That might also be true in a case involving a net point of law and where the essential facts are not greatly in controversy, particularly if the parties have filed extensive written submissions in advance of the hearing. The extent of the note taken in any case and the system of note taking employed is entirely up to the individual judge. The judge may use or her own shorthand or none at all. He or she may have their own system of memory prompts. He or she may cross reference different pieces of evidence according to their own system. The notes may also record a judge’s impression of a witness’s credibility and reliability. There may be case citations or references to published material. Simply put the notes may be more or less comprehensive as the judge sees fit, and they may take any form that the judge sees fit.

The difficulty with making such notes available to a third party, whether on discovery or otherwise, is that they will frequently require deciphering or explanation by the note-taker. This raises the spectre of a judge having to explain, and possibly being cross-examined upon, his or her notes, something which is inimical to the notion of judicial independence and contrary to the public interest. It is a matter of particular concern to this court that the Master of the High Court in ordering the respondent to make discovery has directed that the respondent should make the affidavit of discovery personally. The Supreme Court has expressly stated that it is undesirable for a judge to swear an affidavit concerning the exercise of his judicial functions. In the case of The State (Sharkey) v. District Justice McArdle and the Director of Public Prosecutions, (Unreported, Supreme Court, 4th June, 1981) Henchy J. stated:-

“This court has pointed out on a number of occasions that it is undesirable in a case such as this for a person exercising judicial functions to rely on an affidavit made by himself. Such an affidavit leaves him open to the risk of being cross-examined by the dissatisfied litigant. It would be more judicious if the affidavit were made by the court clerk or registrar, and it should contain an averment that it is made from information within the deponent’s own knowledge and/or from information supplied by a named person.”

This passage, albeit obiter, has been cited, alternatively alluded to, with approval by Judges of both the High Court and the Supreme Court on a number of occasions since. See for example Barr J. in The State (Freeman) v. Connellan [1987] I.L.R.M. 470 at 476 and the judgment of Murphy J. (Hamilton C.J. concurring) in the Supreme Court decision in O’Connor v. Carroll, [1999] 2 I.R. 160 at 166. Therefore if the respondent’s notes of the hearing on 2nd June, 2005 are discoverable, and the court has the gravest doubts about this, the appropriate person to swear the affidavit of discovery would be the appropriate court clerk or registrar and not the respondent herself.
Although the Court has expressed itself sympathetic to the view that a judge’s notes are in principle to be regarded as non-compellable on the grounds of constitutional immunity, it is in fact not necessary for it to express a definitive view on this question in the particular circumstances of this case. However, it is the strong view of this court that if discovery of a judge’s notes were theoretically possible, it could only happen in the most exceptional circumstances and where the necessity for it was clearly demonstrable. It is indeed difficult to conceive of a case in which it might be necessary. It is certainly not necessary in the present case

Order 84, r. 25 allows for applications for discovery in judicial review proceedings. This rule provides that:-

“An interlocutory application may be made to the court in proceedings on an application for judicial review.”

It then goes on to provide that “interlocutory application” includes an order for discovery under O. 31. However, it is also well established that the jurisdiction to grant discovery in judicial review matters should be exercised sparingly. In Carlow Kilkenny Radio Limited v. Broadcasting Commission of Ireland, [2003] 3 I.R 538, Geoghegan J. stated at p. 537:-

“The established English and Northern Irish jurisprudence, which would seem to be in conformity with our own principles of discovery, is to the effect that discovery will not normally be regarded as necessary if the judicial review application is based on procedural impropriety as ordinarily that can be established without the benefit of discovery.”

The test is whether, in the words of Bingham M.R. in R. v. Secretary of State for Health, ex parte Hackney London Borough, (Unreported English Court of Appeal, 24th July, 1994) the applicant has “a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to try the issue fairly, fairly that is to all parties, without discovery of documents bearing on the issue one way or the other.”
This court has come to the conclusion that discovery of the respondent’s notes are not necessary for the purposes of the applicant’s present judicial review proceedings. The normal way in which a party proves something that was said in court on a previous occasion is by calling evidence from somebody who was present in court at the time that the words were spoken to give evidence as to what was said. This could be done by the calling of oral evidence or the swearing of an affidavit as appropriate in the circumstances of the particular case. Although this particular case was conducted in camera, the applicant himself was present, the notice party was present, the notice party’s solicitor was present and the court clerk was present. All four of those persons are in a position to depose as to what the judge said in the course of reading out her notes. It is not necessary for the actual notes to be produced. Moreover, it is established that such notes do not form part of the record.

The ground pleaded at para. E (1) of the applicant’s statement represents a two part complaint. The applicant complains firstly of procedural impropriety by the learned Circuit Court Judge and he also advances what amounts to a claim of irrationality in as much as he contends that the maintenance order made by the learned Circuit Court Judge was unsupported by evidence as to the means of income or expenditure of the respective parties. In the opinion of this court the applicant does not require discovery of the material which is the subject matter of the Master’s order to enable him to establish either of these matters. The complaint made at para. E (2) of the applicant’s statement is again a complaint of procedural impropriety. As pointed out by Geoghegan J. a judicial review application based on procedural impropriety can ordinarily be established without the benefit of discovery. I am satisfied that that is the case here. The grounds pleaded at para. E (3) of the applicant’s statement are comprised of a two-fold complaint. Once again there is claim of procedural impropriety. There is also a claim that the judge should have excused herself from the case for bias or perceived bias. Once again, these are matters that are capable of being established without resort to discovery of the judge’s notes.

Finally, while the Court is satisfied that the Master was entitled to regard the affidavit of the 9th of June 2006 as sufficient to ground the application for discovery, and while there does seem to have been a request for voluntary discovery, Ms Golden is nonetheless correct in the other procedural objection that she makes (her fourth point) namely that discovery should only be ordered in aid of some issue that emerges from information contained in the affidavits filed in response to the application. She rightly points out that since no affidavit has been filed in response to the substantive claim for relief, it was inappropriate and incorrect to order discovery in any event.

Accordingly, in all the circumstances of the case I am disposed to allow the appeal against the Master’s order dated the 29th October, 2008.

Goode Concrete -v- CRH PLC & ors

[2017] IEHC 534 (07 September 2017)

 

JUDGMENT of Mr Justice Max Barrett delivered on 7th September, 2017.

TABLE OF CONTENTS
(Numbers in square brackets are paragraph numbers).

1. APPLICATIONS OF GOODE CONCRETE FOR DISCOVERY FROM (1) CRH PLC AND ROADSTONE WOOD LIMITED, AND (2) KILSARAN CONCRETE
I. Overview [1]

II. Previous Assurances [2]

III. Previous Dealings [6]

IV. The Court as Competition Authority [11]

V. Are the Rules as to Discovery in Competition Law Cases Different? [26]

VI. Proportionality [29]

VII. Statement of Claim [31]

VIII. Request for Particulars and Replies to Particulars [55]

IX. Some Legal Considerations [59]
(i) The Decision in Framus. [59]

(ii) The Damages Directive. [69]

(iii) The Decision in Tetra Pak. [70]

(iv) Some General Cases on Discovery. [71]

1. Ryanair v. Aer Rianta [71]

2. Ryanair Ltd v. Bravofly and Travelfusion Ltd [75]

3. Hartside Limited v. Heineken Ireland Ltd [77]

(v) Confidentiality Rings. [79]

1. Ambiorix Ltd v. Minister for the Environment (No. 1) [79]

2. Cooper Flynn v. Radio Telefís Éireann [82]

3. Koger Inc and anor v. O’Donnell and ors [85]

4. Church of Scientology of California v. Department of Health and Social Security [90]

5. MTV Europe (a firm) v. BMG Records (UK) Ltd and ors [93]

6. Ipcom GmbH & Co KG v. HTC Europe Co Ltd and ors [95]

7. The United Kingdom’s Competition Appeal Tribunal Rules 2015 [96]

8. Bellamy & Child’s European Community Law of Competition (6th ed.) [98]

(vi) Jurisdiction and rationale for confidentiality rings. [99]
X. Confidentiality and Commercial Sensitivity [100]
(i) Certain Issues Presenting. [100]

(ii) Ongoing Business. [103]

(iii) Conclusion. [107]
XI. The Categories of Discovery Sought against CRH plc and Roadstone Wood Limited [108]
(i) Temporal Scope. [108]

(ii) Category 1. [111]

I. Documentation Sought. [111]

II. Observations and Conclusion. [112]

(iii) Category 2. [113]

I. Documentation Sought. [113]

II. Observations. [114]

III. Conclusion. [115]

(iv) Categories 3 and 4. [116]

I. Documentation Sought. [116]

II. Observations and Conclusion. [118]

(v) Category 5. [119]

I. Documentation Sought. [119]

II. Observations. [120]

III. Conclusion. [121]

(vi) Category 6. [122]

I. Documentation Sought. [122]

II. Observations. [123]

III. Conclusion. [124]

(vii) Category 7. [125]

I. Documentation Sought. [125]

II. Observations. [126]

III. Conclusion. [127]

(viii) Category 8. [128]

I. Documentation Sought. [128]

II. Observations. [129]

III. Decisive Influence. [130]

IV. Conclusion. [137]

(ix) Category 9. [138]

I. Documentation Sought. [138]

II. Observations. [139]

III. Conclusion. [140]

(x) Category 10. [141]

I. Documentation Sought. [141]

II. Observations. [142]

III. Conclusion. [144]

(xi). Category 11. [145]

I. Documentation Sought. [145]

II. Observations. [146]

III. Conclusion. [147]

(xii) Category 12. [148]

I. Documentation Sought. [148]

II. Observations. [149]

III. Conclusion. [150]
XII. The Kilsaran Dimension [151]
(i) Overview. [151]

(ii) The Statement of Claim. [152]

1. Paragraph 5. [152]

2. Paragraphs 15 and 16. [155]

3. Paragraph 17. [157]

4. Paragraphs 18 and 19. [159]

5. Paragraph 24. [161]

(iii) Notices for Particulars and Replies Received. [164]

(iv) Categories of Discovery Sought. [166]

1. Categories 1 and 2. [167]

I. Documentation Sought. [167]

II. Breadth of Discovery Sought. [168]

III. “Close Links”. [169]

IV. Conclusion. [171]

2. Categories 3 and 4. [172]

I. Documentation Sought. [172]

II. Breadth of Discovery Sought. [173]

III. The Market Definition Exercise. [174]

IV. Conclusion. [175]

3. Categories 5 and 6. [176]

I. Documentation Sought. [176]

II. Observations. [177]

III. Conclusion. [178]

4. Category 7. [179]

I. Documentation Sought. [179]

II. Observations. [180]

III. Conclusion. [181]

5. Category 8. [182]

I. Documentation Sought. [182]

II. Observations. [183]

III. Conclusion. [184]

6. Category 9. [185]

I. Documentation Sought. [185]

II. Conclusion. [186]

7. Category 10. [187]

I. Documentation Sought. [187]

II. Observations. [188]

III. Conclusion. [190]

8. Category 11. [191]
2. APPLICATION OF CRH PLC AND ROADSTONE WOOD LIMITED FOR DISCOVERY FROM GOODE CONCRETE.

XIII. Categories Sought and Agreed [192]

XIV. Agreement as to Applicable Principle [193]

XV. Category 12 [194]
(i) Documentation Sought. [194]

(ii) Predatory Pricing. [196]

1. Statement of Claim. [196]

2. Notice for Particulars and Replies to Same. [200]

3. Defence. [202]

(iii) Mismanagement, High Levels of Debt, etc. [204]

(iv) Notice for Particulars and Replies to Same. [207]

(v) Objections to Discovery. [209]

1. An issue of damages only. [210]

2. Goode Concrete’s Offer. [213]

3. Proportionality. [215]

(vi) Conclusion as to Discovery of Category 12. [226]
XVI. Category 4 [227]

3. APPLICATION OF KILSARAN CONCRETE FOR DISCOVERY FROM GOODE CONCRETE [230]

XVII. Introduction [230]

XVIII. The Statement of Claim [231]

XIX. Relevance and Necessity [233]

XX. Proportionality [235]

XXI. Conclusion as to Discovery of Category 5 [236]

1. APPLICATIONS OF GOODE CONCRETE FOR DISCOVERY FROM (1) CRH PLC AND ROADSTONE WOOD LIMITED, AND (2) KILSARAN CONCRETE

I. Overview
1. Goode Concrete has come to court making all manner of allegations against the defendants. Central among them is that since at least late-2007 CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at below-cost prices in Dublin. Goode Concrete claims that the pricing practices of the defendants can only be explained on the basis that there has been a breach of competition law, specifically by way of (i) collusive tendering in breach of s.4 of the Competition Act 2002/Art. 101 TFEU, (ii) agreements or concerted practices in breach of s.4/Art. 101 TFEU and/or (iii) abuse of a collective dominant position in breach of s.5 of the Competition Act 2002/Art. 102 TFEU. The various allegations made are denied by the defendants. Indeed, CRH maintains that this case springs not from a concern as to abuses of competition law but ultimately from the fact that Goode Concrete tried to get CRH to buy its entire business, and then some of its assets, and when CRH declined to buy either, these proceedings commenced. Where the truth lies between the parties as regards all of the foregoing will fall to be decided at some future stage. For now, the court is concerned solely with four motions for discovery that have issued between the parties (one against CRH/Roadstone, two against Goode Concrete, and one against Kilsaran). Standing adjourned at this time are a couple of motions for security for costs which have issued against Goode Concrete.

II. Previous Assurances
2. Complaint is made by the defendants concerning past behaviour of Goode Concrete vis-à-vis the court. It is important to emphasise that no complaint is made by the plaintiffs, and no criticism is expressed by the court, as regards any of the lawyers for Goode Concrete (counsel or solicitors). The complaint made is this. At a number of interlocutory hearings in the past, various assurances have been given to certain judges of the High Court. Thus in May, 2012, at a hearing to settle the quantum of security for costs (it having previously been decided that an order for security for costs would be made), counsel (acting on instructions) said the following to the court (Cooke J.):
“I can only suggest to the Court that the figure of €100,000 for the CRH defendants is nothing short of staggering. The idea that it could cost €100,000 to gather together and furnish the discovery sought in these proceedings, particularly where there is already a specified number of tenderers, a specified limited time period and so on, I say is nothing short of staggering. There won’t be an extraordinary degree of documentation in this case. There are specific contracts and a specific time period and it’s not in anybody’s interest, least of all the Plaintiff’s, in trying to look at irrelevant documents.”
3. That was said, on instructions, to persuade the court to fix a lower sum by way of security for costs than might otherwise be the case. About seven months later, in December 2012, the matter came again before the court (Charleton J.) by way of application to re-enter the case. Notwithstanding that an appeal to the Supreme Court had been commenced by Goode Concrete (concerning the judgments of Cooke J.), Charleton J. declined to adjourn the proceedings pending the outcome of the appeal and resolved to ‘case manage’ them. In response to a query from Charleton J., counsel for Goode Concrete, on instructions, indicated that the discovery that Goode Concrete intended to seek would be in relation to certain specific contracts and that the central allegation was that the defendants had been selling below average variable cost (AVC), not average total cost (ATC). In relation to the allegation of selling below AVC, counsel for Goode Concrete, on instructions, said that the documentation required in relation to that would be very specific and relate to a specific time period.
4. The foregoing are clear assurances given to the court as to the scope of discovery that would be sought in the within proceedings. They were given at a time when the plaintiffs were very familiar with the proceedings that they were bringing, over a year after they had formulated and delivered their statement of claim, and at a time when they had a particular interest (1) in keeping the security for costs already ordered against them, down to the lowest possible figure, and (2) when they had an interest in getting the matter back into the Competition List and case managed by Charleton J. Yet there has since been a fundamental change on the part of Goode Concrete as to the scale of discovery that is now required, and no good explanation offered as to why this is so, or why assurances given to the court, advantageous to Goode Concrete, and doubtless previously relied upon by the court, should have proved entirely wrong.

5. Goode Concrete contends in effect that such assurances as were previously given to the court do not bind it. Of course circumstances may change, none of us can accurately predict the future, and an assurance given in the best of faith may be overtaken by events. That is the stuff of life. But when something of the like occurs, and here, as will be seen, the scale of discovery sought has utterly transformed, the court does expect the courtesy of a fulsome explanation; indeed, it is prudent that such an explanation be forthcoming if the court is not to form a view as to a party’s bona fides. All that said, the court sees nothing more in the wider discovery that is now sought by Goode Concrete than an application (in good faith), for wider discovery than was previously anticipated (in good faith) – though it does not, of course, follow from the fact that there is good faith on the part of an applicant for discovery that such discovery as has been sought will be granted.

III. Previous Dealings
6. The court has already touched on CRH’s concerns as to when and why these proceedings were commenced. CRH has also expressed concern as to the notable breadth of the discovery sought by Goode Concrete, maintaining that it wishes to seek discovery that is so costly as to create a very considerable incentive for CRH to come to some form of settlement of the within proceedings. In this regard, the court recalls the affidavit evidence of Mr McKnight, a witness for CRH, which was opened in extenso before the court, and some of which is recited below:
“Mr. Goode has, at various points in his affidavit, made reference to the recent dealings between the Plaintiff and CRH and/or Roadstone. Those references are, to a large extent, inaccurate or misleading and in these circumstances, and for the benefit of the Court, I wish to set out my clear recollection of those factual events on a chronological basis….
As Mr. Goode has averred, he wrote to Mr. Myles Lee, the Chief Executive Officer of CRH, on 16 April 2010 making certain allegations, and that letter was responded to by Mr. Lee by letter of 27 April 2010 in which those allegations were strenuously denied. In that letter Mr. Lee also confirmed that he had asked myself and Mr Seamus Lynch (the Managing Director of Irish Cement Limited) to meet with Mr. Goode in order to discuss concerns that he had raised in relation to the quotation that he had received from Irish Cement for the supply of cement….

In advance of that meeting, I made appropriate enquiries in relation to the issues that had been raised Mr. Goode’s letter and identified the following:

(a) the Plaintiff was not a customer of Irish Cement Limited notwithstanding that previous attempts had been made (and which I had been involved in my previous role within Irish Cement Limited) to persuade the Plaintiff to become a customer. In these circumstances, the quotation provided was the appropriate list price quotation which is provided in response to any enquiry from a prospective purchaser who does not hold an existing account with Irish Cement Limited;
(b) the allegation that Roadstone had, in some way colluded with Kilsaran Concrete in relation to the Mater Hospital project was completely unfounded and untrue. The correct position is that Roadstone tendered a competitive price for that project in an attempt to be successful in the tender process and unfortunately was unsuccessful.

(c) the allegation that Irish Cement had provided financial aid (in the form of rebates paid into an offshore bank account) to the Kilsaran Group was completely unfounded and untrue as this never occurred….

I then met with Mr Tom Goode and Mr Peter Goode on the 10 May 2010 at Bewleys Hotel at Leopardstown. I was able to and did assure them that there was no substance to the allegations made in Mr. Goode’s letter and I said that I would arrange for Mr. Seamus Lynch – the Managing Director of Irish Cement Limited – to contact them to discuss what price would be available if they wished to become an account customer with Irish Cement Limited. Neither Mr Tom Goode nor Mr Peter Goode took issue with this position and the response of Mr. Tom Goode was to enquire whether or not Cement Roadstone would be interested in purchasing the Plaintiff. This response surprised me but I said I would ask Mr. Frank Byrne –
the then Managing Director of Roadstone – to contact Mr. Peter Goode so that we could further consider his proposal and the meeting concluded amicably. I subsequently confirmed this position in an e-mail that I sent to Mr. Tom Goode and Mr. Peter Goode on 13th May 2010 [which he exhibits]….

Mr. Lynch subsequently informed me that he met with Mr Tom Goode on 21 May 2010 to discuss the possible supply of cement by Irish Cement Limited to the Plaintiff. He was told by Mr Tom Goode that they were able to purchase cement from Lagan Cement at a price of €67.50 per tonne, and Mr Lynch’s response was that this was an extremely competitive price and which Irish Cement Limited would not be in a position to match and the meeting concluded amicably….

I also subsequently spoke to Frank Byrne who was the Managing Director of Roadstone so that he would arrange for some of his team to carry out a review of the Plaintiff’s business, which involved a co-ordinated review of its entire portfolio of operations and assets. The conclusion from that review was that this was not a business which was of interest to Roadstone as Roadstone did not need to acquire further concrete production capacity in a declining market and as there appeared in any event to be planning problems with some of the assets which might otherwise have been of interest to Roadstone….

On completion of that review, I made arrangements to attend a further meeting with the Goodes and a meeting was arranged for 18 August at the Red Cow Hotel in Dublin. I attended that meeting, as did Mr Tom Goode, Mr Peter Goode and Mr Barry Goode on behalf of the Plaintiff. At that meeting, Mr. Tom Goode stated that the Plaintiff was finding it difficult to compete at current price levels and he expressed the desire that the industry should restructure itself so that all participants should sell their products at the same advertised price and competition could then be based upon service and location….

We then addressed the purpose of the meeting which was the suggestion by the Goodes that Roadstone should purchase the Plaintiff and I informed the Goodes…that Roadstone was restructuring and closing operations due to the difficult market conditions which comprised of very little work and huge over-capacity. Mr. Barry Goode responded and asked if we would have an interest in acquiring the Plaintiff’s quarry in Galway. Notwithstanding that this asset had already been reviewed by the Roadstone team, I undertook that we would look at this again and revert to them. Mr. Tom Goode then advised me that a one-month exclusivity period (which I was not aware of) had now ended and that Lagan Cement were interested in purchasing the Plaintiff’s concrete operations and were due to visit their operations the next day. I then promised to revert to him in relation to the Galway quarry and the meeting concluded….

I then received a phone call that afternoon from Mr. Peter Goode. He told me that he thought that Roadstone were going to make an offer for the assets of the Plaintiff at that meeting and he was disappointed that no offer was made. He said that the original meeting had only occurred after they had written to CRH and if there was going to be no improvement in the situation then the Plaintiff would have to follow that course of action again. I emphasised that Roadstone had to focus on its objective, which was to try and deliver a profitable business in very difficult market conditions and I agreed that we would meet again within a week or two to discuss the Galway quarry and the documents that had been provided to us would be returned.”

7. There are the proverbial two sides to every story and there are different versions of what was said at the above-described meetings. However, from Mr McKnight’s point of view (which is but one point of view), he understand what was being said to be, in effect, ‘Buy our business and if you don’t, we will re-agitate a complaint of anti-competitive activity which we sent into your CEO in April.’
8. Mr McKnight continues:

“The next meeting took place on 1 September 2010 at the Red Cow Hotel and was attended by myself and my colleague, Mr Jim Mintern (who is responsible for CRH’s Irish operation which includes Roadstone) and by Mr Tom Goode, Mr Peter Goode and Mr Barry Goode on behalf of the Plaintiff. The purpose of this meeting was to discuss the quarry assets of the Plaintiff and the Goodes advised us that they believed that three of their quarries should be of interest to CRH: two in Galway and one in Naul, Co. Dublin. They suggested that the Roadstone team that had already looked at these assets mustn’t have understood their strategic value and it was agreed that Mr Mintern would visit those sites with Mr Peter Goode to get a better understanding of the issues involved and that a further meeting would then take place….
Mr Mintern, together with Mr Jim Farrell, current managing director of Roadstone and Mr Peter Goode then inspected those quarries as agreed on 13 September 2010. Mr Mintern subsequently advised me that when he arrived to look at the Galway quarries a blockade was in place by unpaid suppliers but they managed to gain access and to inspect them. They then travelled back towards Dublin and inspected the Naul quarry….

A further meeting then took place at The Red Cow Hotel on 30 September 2010 and the attendees were the same as the attendees at the meeting of 1 September 2010. At this meeting, we discussed in some detail the planning difficulties which existed in relation to each of the quarries and it was agreed that planning experts would be engaged and should meet in order to see if those difficulties could be resolved. We then discussed potential valuations of the quarries on the assumptions that the planning difficulties were capable of being resolved. There was a further discussion in relation to the Naul quarry as Kilsaran Concrete had a concrete plant opposite the site but they did not have a quarry. Mr Peter Goode raised the possibility of Kilsaran being interested in purchasing the quarry. This made commercial sense and I recall Mr Mintern advising Mr Peter Goode that they should talk to Kilsaran. Mr Peter Goode also raised the possibility of Roadstone and the Plaintiff entering into a joint venture in respect of The Naul quarry and that the joint venture could submit a planning application and I said that we would consider this….

Following that meeting, Mr Peter Goode sent an e-mail to Mr Mintern on 1 October 2010 [which he exhibits]….In that e-mail, Mr Peter Goode purported to set out an agreement that had been reached at the meeting of 30 September 2010 which was at complete variance to what had occurred as he suggested that Roadstone had agreed to purchase the Gort and Ardrahan quarries, and that Roadstone had agreed to enter into a joint venture with the Plaintiff to try and secure planning permission for The Naul quarry. Mr Mintern responded by e-mail of 4 October 2010 [which he exhibits]….In that e-mail, Mr Mintern summarised the planning difficulties in relation to each of the sites and his understanding of where the discussions had been left at the meeting and he confirmed that any indications of valuations discussed were for the purpose of providing indicative valuation ranges and that any formal offer would have to be subject to final negotiations and he confirmed he would be in further contact to arrange the next meeting. Mr. Peter Goode then responded by e-mail of 5 October 2010 in which he accepted that discussions were subject to formal agreement but he did ask if heads of terms could at least be agreed [which he exhibits]….

A further meeting was arranged for 15 October 2010 and that meeting was attended by myself and Mr Mintern and by Mr Tom Goode and Mr Peter Goode and the purpose of the meeting was to try to see if any further progress could be made in relation to the planning difficulties for the relevant quarries. Mr Mintern explained that we would not be able to move forward with any purchase of these assets whilst the planning difficulties remained. Mr Tom Goode was very agitated and he stood up and accused us of wasting his time and they told us that they would be writing again to the Chief Executive of CRH and the meeting concluded abruptly….

Following that meeting, Mr. Mintern then sent an e-mail to Mr Peter Goode on 18 October 2010 in which he summarised the planning difficulties which existed. He confirmed that, if those difficulties were overcome, then, we would be prepared to recommence discussions, but, that following our meeting on Friday, it appeared that the Plaintiff was no longer interested in doing so. He also explained the history of the discussions which had been taking place and made it clear that we did not accept that we had in any way misled the Goodes in relation to the discussions which had taken place. Finally, he made suggestions in relation to the return of the documents that had been provided by the Plaintiff. Mr Peter Goode responded later that day by e-mail making it clear that negotiations were at an end and accepting the offer for the return of the documents [which he exhibits]….

We had no further discussions or communications with the Goodes or the Plaintiff prior to the Plaintiff’s solicitors sending a further letter to the CEO of CRH on 12 November 2010 as exhibited.”

9. The proceedings were commenced a week later.
10. The above are the facts as presented to the court by the first and second-named defendants. If they are entirely or even substantially true, the court can understand why those defendants feel aggrieved as regards their being sued in these proceedings. But, with respect, this Court at this time has no idea if the facts as presented by the first and second-named defendants are to be preferred to the version of facts advanced by Goode Concrete.

IV. The Court as Competition Authority
11. A continuous refrain of Goode Concrete throughout the hearing of the within applications is that the court has been designated under our domestic law as a competition authority, with the suggestion never expressly stated but still always there that, as a consequence, the court is obliged to take on some form of investigatory role, rather than holding the scales of justice evenly between the parties. It is not entirely clear what Goode Concrete expects the court to do that is different from the situation that would present were the court not a competition authority. Even so, it is worthwhile considering this aspect of matters a little more closely. In this regard the court turns first to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (O.J.L1, 4.1.2003, 1), recitals (5)-(7) of which read as follows:
“(5) In order to ensure an effective enforcement of the Community competition rules and at the same time the respect of fundamental rights of defence, this regulation should regulate the burden of proof under Articles 81 and 82 of the Treaty. It should be for the party or the authority alleging infringement of Article 81 and Article 82 of the Treaty to prove the existence thereof to the required legal standard. It should be for the undertaking or association of undertakings invoking the benefit of a defence against the finding of an infringement to demonstrate that the required legal standard that the conditions for applying such defence are satisfied. This Regulation affects neither national rules on the standard of proof, nor obligations of competition authorities and courts of the Member States to ascertain the relevant facts of the case, provided that such rules and obligations are compatible with general principles of Community law.
(6) In order to ensure that the Community competition rules are applied effectively, the competition authorities of the Member States should be associated more closely with their application. To this end, they should be empowered to apply Community law.

(7) National courts have an essential part to play in applying the Community competition rules. When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements. The role of the national courts here complements that of the competition authorities of the Member States. They should therefore be allowed to apply Articles 81 and 82 of the Treaty in full.”

12. It is clear from the foregoing that Regulation 1/2003, as one would instinctively expect, leaves the choice of procedure to the national courts, provided the national courts, in the application of their national procedures, respect the principles of equivalence and effectiveness. It does not require a different set of rules to be applied by a national court in competition cases. Thus if one goes, for example, to Art. 2 (“Burden of proof”), it provides as follows:
“In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81 or of 82 of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 81(3) of The Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled.”
13. In other words, in terms of proceedings, it is the normal adversarial rules that apply.
14. Regulation 1/2003 placed Ireland in a somewhat unusual position. The Competition Authority in this jurisdiction, by virtue of our constitutional provisions, cannot impose fines and take certain other steps required under Regulation 1/2003 so as to ensure the effective implementation of competition law at an EU and national level throughout the Union. To get over this domestic hurdle, both the courts and the Competition Authority were designated under the European Communities (Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty Regulations) 2004 (S.I. No. 195 of 2004) so that they could apply the provisions of Regulation 1/2003. It is worth looking at little more closely at the consequences of that designation.

15. Under the heading (“Powers of the competition authorities of the Member States”), Art. 5 of Regulation 1/2003 provides as follows:

“The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

– requiring that an infringement be brought to an end,
– ordering interim measures,

– accepting commitments,

– imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.”
16. For Art. 5 to have proper effect in this jurisdiction, a court, as mentioned, had to be designated as a competition authority because the exercise of the jurisdiction under Art. 5 would be considered the administration of justice in this jurisdiction and, as such, the Competition Authority could not carry out those functions. As a result, Arts. 3 and 4(2) of the Regulations of 2004 provide, inter alia, as follows:
“3.(1) Each of the following, namely…(c) the High Court…is, as respects the State, designated as the competition authority for the purposes of Article 5 of the Council Regulation and the respective jurisdiction of each of those courts for the purposes of that Article is that specified in paragraph (2) of this Regulation.
(2) For the purposes of Article 5 of the Council Regulation, the functions and jurisdiction of each court mentioned in paragraph (1) of this Regulation are those specified in, and conferred on it by –

(a) the Act, and
(b) in the case of any appellate jurisdiction of it arising by virtue of the operation of any other enactment and relating to a matter arising under the Act, that other enactment.

…
4.(2) Each of the following, namely…(c) a court referred to in Regulation 3(1) of these Regulations or, as appropriate, the office of that court, is, as respects the State, designated as a competition authority for the purpose of performing any function assigned to competition authorities of Member States by Articles 11(1),[1] 11(5)[2], 27(2)[3] and 28(2)[4] of the Council Regulation and is, accordingly, empowered to do anything mentioned in any of those provisions as being performable by such an authority.”
[1] Article 11(1) provides as follows:

“The Commission and the competition authorities of the Member States shall apply the Community competition rules in close cooperation.”

[2] Article 11(5) provides as follows:

“The competition authorities of the Member States may consult the commission on any case involving the application of Community law.”

[3] Article 27(2) provides as follows:

“The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 [“Cooperation between the Commission and the competition authorities of the Member States”] and 14 [“Advisory Committee”]. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.”

[4] Article 28(2) provides as follows:

“Without prejudice to the exchange and to the use of information foreseen in Articles 11 [“Cooperation between the Commission and the competition authorities of the Member States”], 12 [“Exchange of information”], 14 [“Advisory Committee”], 15 [“Cooperation with national courts”] and 27 [“Hearing of the parties, complainants and others”], the Commission and the competition authorities of the Member States, their officials, servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States shall not disclose information acquired or exchanged by them pursuant to this Regulation and of the kind covered by the obligation of professional secrecy. This obligation also applies to all representatives and experts of Member States attending meetings of the Advisory Committee pursuant to Article 14.”
17. The designation of the court as a competent authority in the just-quoted provisions does not have the result that the court is always acting as a competition authority. If that were so that would mean that in a private dispute, where a plaintiff came to court seeking injunctive relief, for, e.g., alleged anticompetitive behaviour, the court would be in the (nonsensical) position of having to comply with Art.11(4) of Regulation 1/2003, which, in addressing the issue of cooperation between the European Commission and the competition authorities of the Member States, provides as follows:
“No later than 30 days before the adoption of a decision requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption Regulation, the competition authorities of the Member States shall inform the Commission. To that effect, they shall provide the Commission with a summary of the case, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action. This information may also be made available to the competition authorities of the other Member States. At the request of the Commission, the acting competition authority shall make available to the Commission other documents it holds which are necessary for the assessment of the case. The information supplied to the Commission may be made available to the competition authorities of the other Member States. National competition authorities may also exchange between themselves information necessary for the assessment of a case that they are dealing with under Article 81 or Article 82 of the Treaty.”
18. Moreover, if one looks to Regulation 1/2003, it distinguishes itself between competition authorities and courts. So, for example, Art.35 of Regulation 1/2003, under the heading “Designation of competition authorities of Member States”, provides, inter alia, as follows:
“1. The Member States shall designate the competition authority or authorities responsible for the application of Articles 81 and 82 of the Treaty in such a way that the provisions of this regulation are effectively complied with. The measures necessary to empower those authorities to apply those Articles shall be taken before 1 May 2004. The authorities designated may include courts.
2. When enforcement of Community competition law is entrusted to national administrative and judicial authorities, the Member States may allocate different powers and functions to those different national authorities, whether administrative or judicial.”

19. Thus, in drafting Regulation 1/2003, there was recognition that a competition authority might also be a court. However, there is delineation in the Regulation between the powers of a court and competition authorities simpliciter. So, for example, Art. 15(2) of Regulation 1/2003 provides as follows:
“Member States shall forward to the Commission a copy of any written judgment of national courts deciding on the application of Article 81 or Article 82 of the Treaty…without delay after the full written judgment is notified to the parties.” (Emphasis added).
20. By contrast, Art.11(4) of Regulation provides that a competition authority simpliciter must:
“[n]o later than 30 days before the adoption of a decision requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption Regulation, the competition authorities of the Member States shall inform the Commission”. (Emphasis added).
21. This last-quoted provision is consistent with the general thrust of Art. 11 of Regulation 1/2003 which is concerned with the sharing of information between national competition authorities and the European Commission, with a national authority is required to step back and allow the Commission to proceed if the Commission institutes proceedings. Thus Art.11(6) provides as follows:
“6. The initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles 81 and 82 of the Treaty. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.”
22. Notably, although Art. 35(3) of Regulation 1/2003 goes on to provide that “The effects of Article 11(6) apply to the authorities designated by the Member States including courts that exercise functions regarding the preparation and the adoption of the types of decisions foreseen in Article 5”, it also provides that “The effects of Article 11(6) do not extend to courts insofar as they act as review courts in respect of the types of decisions foreseen in Article 5.” And, ‘completing the circle’, so to speak, Art. 35(4) of Regulation 1/2003 provides as follows:
“Notwithstanding paragraph 3, in the Member States where, for the adoption of certain types of decisions foreseen in Article 5, an authority brings an action before a judicial authority that is separate and different from the prosecuting authority and provided that the terms of this paragraph are complied with, the effects of Article 11(6) shall be limited to the authority prosecuting the case which shall withdraw its claim before the judicial authority when the Commission opens proceedings and this withdrawal shall bring the national proceedings effectively to an end.”
23. Taken together, what the foregoing means is that in Ireland, when the Competition Authority brings proceedings as a plaintiff before the High Court, those are competition law proceedings in which the court is also acting as a competition authority because it exercising its function under Article 5. It is a function which in another jurisdiction a competition authority may exercise from beginning to end. However, in Ireland, for the reasons identified previously above, the court is designated as a competition authority in order to make the final ‘administration of justice-type’ decisions. And in that respect the court is acting as a competition authority for the purpose of Regulation 1/2003. However, in the context of a private dispute inter partes, the court is acting as an ordinary court under the Constitution, and no more.
24. Even if the court is wrong in this last regard (and it does not consider that it is) and it is now acting as a competition authority, what are the implications of that as regards disclosure? Some guidance as to this issue is perhaps to be found in the so-called ‘Damages Directive’, i.e. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (O.J. L349, 5.12.2014, 1), certain elements of which are touched upon later below. That Directive does not apply to the within proceedings because they were commenced before the date of actions in respect of which the Damages Directive, as transposed into Irish law, applies. Even so, Art.5 of the Damages Directive and the principles which are contained therein in respect of what is required, going forward, in respect of disclosure of evidence in private actions for damages as a result of a breach of competition law, are of interest. Article 5 of the Damages Directive, under the heading “Disclosure of Evidence” provides as follows:

“1. Member States shall ensure that in proceedings relating to an action for damages in the Union, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, national courts are able to order the defendant or a third party to disclose relevant evidence which lies in their control, subject to the conditions set out in this Chapter. Member States shall ensure that national courts are able, upon request of the defendant, to order the claimant or a third party to disclose relevant evidence.
…
2. Member States shall ensure that national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification.
3. Member States shall ensure that national courts limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the legitimate interests of all parties and third parties concerned. They shall, in particular, consider:

(a) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence;
(b) the scope and cost of disclosure, especially for any third parties concerned, including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure;

(c) whether the evidence the disclosure of which is sought contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.

4. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for damages. Member States shall ensure that, when ordering the disclosure of such information, national courts have at their disposal effective measures to protect such information.
…
8. Without prejudice to paragraphs 4 and 7 and to Article 6 [“Disclosure of evidence included in the file of a competition authority”], this Article shall not prevent Member States from maintaining or introducing rules which would lead to wider disclosure of evidence.”
25. The types of factor touched upon in the above-quoted text are not so very dissimilar to the criteria which the court is applying in the within proceedings. In truth, it may be that they are, as formulated in the above-quoted text, in some ways more restrictive (in terms of the reasoned justification and the specified items of evidence which must be identified), though a more liberal national regime is safeguarded under Art. 5(8). Hence, if the court is wrong in its conclusion that it is not in the within application acting as a competition authority (and again the court does not consider that it is wrong in this regard), it does not consider, by reference to the, not here applicable but nonetheless notable, content of the Damages Directive, that there are any implications as regards disclosure for Goode Concrete that would flow from such principles; if anything it seems to be the beneficiary of a more liberal domestic regime. And, pointedly, Goode Concrete has failed to identify any practical implication, rooted in law, which arises to its benefit in this regard.

V. Are the Rules as to Discovery in Competition Law Cases Different?
26. There is some suggestion in the written submissions of Goode Concrete that in some way the ordinary domestic rules of discovery do not apply to competition law cases. (This is a point that is related but not identical to that concerning the designation of the court as a competent authority, an aspect of matters that has been addressed previously above). The court understands from the submissions at hearing that this point has effectively been dropped but, for the sake of completeness, proposes to deal with it briefly. Thus paras. 36 and 37 of the written submissions of Goode Concrete, under the heading “Legal Principles”, state as follows
“36. It is not entirely clear what the implications are of the State having designated the Court as a national competition authority for [the] purposes of Regulation 1/2003. However, based on provisions such as Article 11(4) and keeping in mind the duty of sincere cooperation in Article 4(3) TEU as well as Regulation 1/2003, it must be the case, as a matter of EU law, that the Court is playing a role which is more significant than the usual role which it plays of determining an inter partes dispute.
37. For [the] purposes of the present application, it is submitted that the logical consequence of the role of the Court qua competition authority is that it must itself be satisfied that it has sufficient information before it so as to determine whether the breaches of competition law which are alleged (and, as described above, which have been set out in significant detail in the pleadings and in sworn evidence) have occurred. The motions before the court therefore seek the disclosure of documentation not only pursuant to Order 31, Rule 12 [of the Rules of the Superior Courts] but also pursuant to Regulation 1/2003 and the Court’s own jurisdiction.”

27. An ordinary application for discovery is made on the basis of Order 31 of the Rules of the Superior Courts, so to the extent that the motions before the court invoke Regulation 1/2003 and the Court’s own jurisdiction, the notion that the court has some further role, almost of initiating a documentary investigative process through the procedure of discovery as distinct from determining an application for discovery inter partes, seems somehow to survive, notwithstanding the submissions made by counsel for Goode Concrete at hearing. To the extent that it does survive it is, with respect, wrong. The plaintiffs appeared initially in this regard to place some reliance on the following observation of Fennelly J. in Ryanair v. Aer Rianta [2003] 4 IR 264, 277-278:
“Competition cases have…the special feature that any documents relating to anti-competitive behaviour, whether by being party to agreements or concerted practices or protecting a dominant position, are likely to be in the possession of the party engaged in that behaviour. Anti-competitive agreements or practices will be kept secret.”
28. However, in Framus Ltd v. CRH plc [2004] 2 IR 20, Murray J. made it clear, at 31, that the possibility that specific documents relevant to the issues may be unknown to a plaintiff “is a factor to be taken into account and I put it no higher than that as part of the circumstances in deciding the appropriate kind of order for discovery to be made”. Moreover, Murray J. went on to make clear that different rules do not apply to competition cases, observing, inter alia, at 46-7:
“[T]he plaintiffs expressly acknowledge in their submissions that they were not making the case that different rules apply in relation to discovery in competition cases. That, in my view, is the correct position in law.”

VI. Proportionality
29. The court indicated previously above that it sees nothing in the evidence before it to persuade it that the actions or motivations of Goode Concrete in bringing the within proceedings are such as to require the court to proceed with especial attentiveness, above and beyond that which it is required by binding precedent to bring, to the issue of proportionality (a concept the proper ramifications of which are considered later below). However, the court also noted that that was not to say that when it comes to assessing matters by reference to proportionality, no concerns present. Just to give an example of the breadth of discovery sought by Goode Concrete, it is worth recalling some of the observations of counsel for the first and second defendants in this regard and a related exchange between court and counsel that the court found helpful:
“Counsel: [W]e say that the Plaintiffs have utterly ignored the assurances that they gave to the court as to the proportionate approach that they would take to discovery. They…assured this court on two occasions [that] they would be adopting a proportionate approach. They then threw that out the window and made a very wide application by way of correspondence for discovery. They have pursued it by way of, not quite as wide, but still a very broad application, by way of the motion. We have responded to that comprehensively, saying; ‘Look, this is so broad, because of what [is] sought, that the burden upon us, in terms of the number of documents and the costs, are going to be huge, and it is simply disproportionate the nature of these proceedings.’ The figures that we put before the court were from the 1st January 2007 to the 31st December 2010. That’s the four-year period and it is not the period, of course, for which the plaintiff seeks discovery. You are looking at, in terms of Categories 5 and 6, 109,000 separate jobs, 425,000 deliveries of ready-mix and specialty concrete products, 270,000 deliveries of ready-mix concrete alone, 134,000 deliveries that are above 1,500 cubic meters, (10-15 documents per delivery and 10-20 pages of documents per delivery, 6 billion pages (and without the specialty products, 4 million pages). On Categories 5 and 6, 560,000 documents if limited to ready-mix concrete alone and jobs above 1,500 cubic meters. That increases to 625,000 documents on Categories 5 and 6 if you extend the period from the 11th January 2007-30th June 2013, as sought by the Plaintiff, in other words, an increase of more than 10%. The 625,000 documents would equate to about 2 million pages and a cost of some €8.5 million in order to carry it out….[C]ounsel for the Plaintiff, in dealing with this, says, rather blandly: ‘Well, 560,000 documents up to 625,000 documents…that’s not a huge increase.’ It’s more, of course, than 10%, and in money terms it’s nearly a million euro….and this is the attitude of the Plaintiff to it [the increase]: ‘Ah well, it’s only a small increase.’ ‘Ah well, look at CRH, they have made a lot of money, they are a very successful company….They can afford it.’
…
Court: Small people will sometimes sue big people, though, and in a sense, what you are saying is ‘I am a victim of my own success…[B]ecause I am so big, there is an awful lot to be discovered’. And the small person here is…saying ‘I don’t fully know the nature of the [wrongdoing]…so I have to be vague to a certain extent as to what I am looking for.’….[W]hat is the answer to those two points?
Counsel: Well, I suppose, when we look at the pleadings, we will see…that the plaintiff here is essentially saying; ‘I have a complaint about specific contracts’ and subsequently to the court, he said ‘I have a complaint about specific contracts and my discovery will be limited to specific contracts.’ Well, the answer to that is let’s have the delivery dockets for the specific contracts if you want to. If you want to see the average variable costs for the specific contracts, then do what you told the court on two separate occasions you would do. Anything beyond those specific contracts is purely speculative.’ In fact, even in relation to the specific contracts there is really no basis for the allegation….The flip side of that [the line of reasoning posed by the court], if I may respectfully say so…and I pose this as a rhetorical question…[is ‘Can] it be the case in the field of competition law that one competitor, who is simply not doing as well as other competitors in a competitive market, can bang out a statement of claim alleging predatory pricing or abuse of dominant position and on the basis of bare pleas come into Court and say…’I would like now to conduct a strip search of my competitors. I would like to see what their costs are, what their efficiencies are, how much they are getting their cement for, how much it costs them to produce the aggregates, how much they are paying their truck drivers?’”

30. The answer to that last question, albeit that it was posed as a rhetorical question, is, it seems to the court, that (i) there has ever to be a solid basis for discovery (thus what is sought must be relevant, necessary, proportionate, not based on speculation, not so wide-ranging as to be an obstacle to the fair disposal of proceedings, not oppressive and not a tactic-of-war between the parties) and (ii) the court must look to the whole question of whether or not, in balancing the interests of the respective parties to litigation, there is a need to protect the interests of the defendants to competition law proceedings from such abuses as are referred to by counsel by imposing a ‘confidentiality ring’ requirement. (The court turns later below to whether or not to establish a confidentiality ring in the context of the within applications).
VII. Statement of Claim
31. These proceedings involve what is essentially a case relating to specific contracts and an allegation of below-cost selling on specific contracts which, even if established, is only unlawful if the plaintiff can establish as a precursor to that, that the three defendants are essentially one undertaking or, if not one undertaking, that they exercise collective dominance in the market for ready-mix concrete in the Greater Dublin Area. A curious feature of the pleadings is that they identify no basis for the twin allegations which would have to be brought together in order to succeed, namely (i) that there was below-cost selling (other than the bare allegation that there was because the prices are below the plaintiff’s own average variable cost), and (ii) that there was sole or collective dominance. In truth, the allegations aforesaid are but asserted and discovery then sought. To demonstrate this and to determine the proper scope of discovery, it is necessary for the court to consider the pleadings. However, notwithstanding such observations as the court may make as to same, it is important to note that the court does not intend to make and does not make any observation as to the eventual outcome of the within proceedings. Turning then to the statement of claim, it states, inter alia, as follows:

“5. For [the] purposes of…Irish and EU competition laws, CRH and Roadstone are presumed to be part of one and the same undertaking as Roadstone is a 100% subsidiary of CRH. Similarly, Irish Cement is part of the same undertaking.”
32. This statement is fine so far as it goes: it is an acknowledged feature of competition law that if one has a 100% subsidiary undertaking, it is likely to be regarded as part of the parent undertaking, in any event absent autonomous behaviour on the part of the subsidiary. The statement of claim continues:
“The plaintiff pleads that there are close links between CRH and Kilsaran.”
33. Here, Goode Concrete, with respect, departs significantly from established law. If Kilsaran is to be regarded as part of a single undertaking with CRH, then Goode Concrete has to establish that it is owned, wholly or partly, by CRH. So the reference to “close links” is, with respect, a vague pleading that, as will be seen later below, presents particular difficulties in the context of the discovery now sought. The statement of claim continues:
“Discovery and/or interrogatories will be required to establish whether CRH exercises decisive influences over Kilsaran such that CRH and Kilsaran are part of one and the same undertaking.”
34. It might be argued that interrogatories could have been relied upon in this regard, and it is a notable feature of the proceedings that the possibility of proceeding to some extent by way of interrogatories appears to have been abandoned by Goode Concrete. But be that as it may, the just-quoted text does point to a claim that seems notably speculative in nature: an allegation as to “close links” is made and in the very next sentence it is stated in effect that Goode Concrete does not know if this allegation holds true but intends to find out from discovery and/or interrogatories whether CRH exercises ‘decisive influence’ over Kilsaran (with no uptake on the interrogatories dimension of matters at this time). Again, however, there is a mis-statement as to the applicable test which is ‘decisive influence + ownership’ if CRH and Kilsaran are to be held to be part of one and the same undertaking.
35. The statement of claim continues:

“In the premises, the conduct of the defendants the subject matter of these proceedings, may constitute a violation.”
36. Although, to borrow a colloquialism, it is important not to get ‘hung up’ on a single verb, it seems to the court that the phrase “may constitute a violation” in the above-quoted text is notable. It has the effect that Goode Concrete does not plead a violation. It is saying in effect that ‘There may be a violation, we don’t know, but we would like to get discovery, search around and see if we can build up any sort of a case and maybe get something out of this.’ That is a trend that permeates the entirety of the statement of claim.
37. Moving on, para. 6 of the statement of claim states as follows:

“The Plaintiff pleads in the alternative to take account of the possibility that (i) CRH/Roadstone and Kilsaran are separate undertakings and (ii) CRH/Roadstone and Kilsaran are part of one and the same undertaking. It is also necessary for the Plaintiff to make alternative claims as to whether the breaches of competition law in this case are of section 4/Article 101 or section 5/Article 102, without prejudice to the possibility that the same agreements and/or arrangements and/or conduct on the part of the defendants give rise simultaneously to breaches of section 4/Article 101 and section 5/Article 102. As the alleged anti-competitive agreements and practices have been kept secret by those involved in them, the plaintiff cannot know, in advance of discovery how precisely the defendants’ breaches of competition rules ought to be characterised at this point in time.”
38. In reading the last-quoted paragraph of the statement of claim, the court is mindful in this regard of the observation of Fennelly J. in Ryanair v. Aer Rianta [2003] 4 IR 264, 277-278, that “Competition cases have…the special feature that any documents relating to anti-competitive behaviour, whether by being party to agreements or concerted practices or protecting a dominant position, are likely to be in the possession of the party engaged in that behaviour. Anti-competitive agreements or practices will be kept secret.” However, in Framus Ltd v. CRH plc [2004] 2 IR 20, Murray J. made it clear, at 31, that the possibility that specific documents relevant to the issues may be unknown to a plaintiff is but “a factor to be taken into account…in deciding the appropriate kind of order for discovery to be made”. Moreover, Murray J. went on, at 46-7, to make clear that different discovery rules do not apply to competition cases. One aspect of those rules is that so-called ‘fishing expedition’ are not permitted. When Goode Concrete states in its statement of claim that “As the alleged anti-competitive agreements and practices have been kept secret by those involved in them, the plaintiff cannot know, in advance of discovery how precisely the defendants’ breaches of competition rules ought to be characterised at this point in time” it seems to the court that Goode Concrete is upon, if it has not crossed, the threshold of seeking license for a ‘fishing expedition’, i.e. a speculative trawl of the defendants’ documentation.
39. Goode Concrete then identifies the relevant markets and estimates market share with some precision. Then, at para. 16 of the statement of claim, it states as follows:

“The plaintiff will allege that the defendants have breached and are continuing to breach… EU and Irish competition laws. The extent to which such breaches have occurred and are continuing to occur may not be fully identifiable, at least until the plaintiff has had the opportunity to inspect the defendants’ discovery. The plaintiff therefore reserves its right to advance, following discovery, further particulars of breaches of competition law on the part of the defendants”.
40. With every respect to Goode Concrete, it is difficult not to read these words as anything other than, and the court reads them to be, an assertion that the discovery process is to be used to ‘fish’ for other breaches.
41. At this point in the statement of claim one comes to the core of the breaches of competition law alleged in the concrete market, viz:

“17. The majority of sales of concrete in the Dublin area are made following tenders, conducted by construction firms. Since at least late 2007, each of CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at prices below cost, and in particular below average variable cost (‘AVC’), in concrete tenders in the Dublin area. The aim of this practice has been to distort competition and eliminate the plaintiff as a competitor in the concrete market.”
42. The court notes in passing that no evidential basis has been put forward by Goode Concrete to support this plea of an aim to eliminate. Counsel for Goode Concrete, it is true, did open, in the course of hearing, what purports to be a transcript of a telephone conversation in which the CEO of Kilsaran said certain things and upon which Goode Concrete seeks to draw an inference as to the aim aforesaid. However, the CEO of Kilsaran is not a servant or agent of the first or second-named defendants.
43. The statement of claim continues:

“The Plaintiff will claim that the pricing practices of each of CRH/Roadstone and Kilsaran in concrete tenders are explicable only on the basis that the defendants have breached and are breaching competition law, in particular in one or more of the following ways:

(i) CRH/Roadstone and Kilsaran have engaged in collusive tendering in the Dublin concrete market in breach of section 4 of the Competition Act 2002 and/or Article 101 TFEU.
(ii) CRH/Roadstone and Kilsaran have engaged in an agreement or agreements and/or have engaged in a concerted practice or concerted practices, to tender, offer for sale and/or sell concrete at below cost prices contrary to section 4 of the Competition Act 2002 and/or Article 101 TFEU.

(iii) CRH/Roadstone and Kilsaran have abused a collective dominant position in the Dublin concrete market by tendering, offering for sell and/or selling concrete at below cost prices contrary to section 5 of the Competition Act 2002 and/or Article 102 TFEU.”

44. In summary, the last-quoted text makes three different allegations of breaches of competition law in the concrete market. The first two assume that CRH/Roadstone, on the one part, and Kilsaran on the other part, are separate undertakings and claims that breaches of s.4 present. The third alleged breach is that of abuse of a collective dominant position, as distinct from a position of sole dominance occupied by the three defendants as a single undertaking.
45. The statement of claim continues:

“20. The defendants have succeeded in their aim of eliminating the Plaintiff as a competitor in the concrete market. Due to its inability to compete with the defendants’ pricing [of] concrete at below AVC, the plaintiff was forced to cease trading as of the 18th February 2011. Furthermore, the price of ready mixed concrete in the Dublin area has increased significantly since the Plaintiff’s exit from the market.”
46. Particulars of the tenders in respect of which there has been below-cost selling are set out in Schedule 1, para. 22 of the statement of claim stating in this regard that “These are the best particulars that the plaintiff can provide until after the defendants have made discovery.” Again, seeking discovery by reference to such a pleading seems tantamount to a request for a license to ‘fish’.
47. As to breaches of competition law in the cement market, the statement of claim reads, inter alia, as follows:

“23. CRH, through Irish Cement, occupies a dominant position in the Irish cement market. By engaging, through Roadstone, in below cost selling of concrete and concrete products in the Dublin market, CRH is abusing its dominant position in the cement market in breach of section 5 of the Competition Act 2002 and/or Article 102 TFEU.”
48. As the court reads this text, the plea that is being made is that CRH has a dominant position in the Irish cement market and has abused its dominant position; however, the abusive conduct that is alleged is not abusive conduct in the market in which it is alleged to be dominant but another market altogether, being the market for concrete and concrete products in Dublin. In other words, the allegation that is made is that because of conduct in a market in which CRH is said not to be dominant, it is abusing its dominant position in a market in which it is dominant. That is an allegation that can succeed (as in the Tetra Pak case, considered later below). However, it is safe to say that it is an allegation that will rarely succeed, and would require the pleading and identification of special circumstances, which are not pleaded here.
49. Proceeding, the statement of claim reads as follows:

“24. The agreements and/or arrangements between CRH and Roadstone and between CRH and Kilsaran for the supply and purchase of cement are unknown to the plaintiff. Such agreements and/or arrangements may also give rise to breaches of competition law. The plaintiff reserves the right to provide particulars of such breaches following discovery having been made by the defendants.”
50. Notwithstanding the above-mentioned observations of Fennelly J. in Ryanair, it seems to the court that this paragraph speaks to the speculative nature of the claims made by Goode Concrete. It makes no allegation of abuse in relation to the selling of cement between CRH and Kilsaran. It simply asserts that the arrangements for the purchase of cement by Kilsaran from CRH are unknown to Goode. Doubtless, Goode Concrete would like to know about those arrangements; however, they are not entitled to them simply because they issue proceedings. Notably in this regard, Goode Concrete does not plead that cement is being sold at prices by Irish Cement to Kilsaran, which in themselves amount to an abuse of dominant position in the cement market. Remarkably in fact, the statement of claim makes no allegation of abuse in the cement market by Irish Cement or CRH/Irish Cement. The only allegation of abuse by CRH/Irish Cement is not in the cement market but in the ready-mix concrete market. So in essence what Goode Concrete is pleading in para. 24 is ‘Here is something that we don’t know about and it might be contrary to competition law but we don’t plead that it is.’ That, with respect, offers no sound basis for discovery.
51. Paragraph 25 of the statement of claim indicates that particulars of tenders in which Roadstone and Kilsaran have allegedly engaged in below-cost selling are set out in Schedule 1. “These”, it states, “are the best particulars that the plaintiff can provide until after the defendants have made discovery.” As with para.22, seeking discovery by reference to such a pleading seems tantamount to a request for a license to ‘fish’.

52. The statement of claim then proceeds with some “Further or Alternative Claims if CRH/Roadstone and Kilsaran are Part of the Same Undertaking”. In para. 26, Goode Concrete acknowledges that, if CRH/Roadstone and Kilsaran are part of the same undertaking, then s. 4 of the Competition Act 2002 and Art. 101 TFEU do not apply (and patently in that case they do not). In paras. 27 and 28, it is stated that in those premises Goode Concrete will argue that

(i) CRH/Roadstone/Kilsaran occupy a position of single firm dominance in the ready-mix concrete market and markets for concrete product, and that single firm has abused those dominant positions by selling at below-cost prices;
(ii) the CRH/Roadstone/Kilsaran undertaking occupies a dominant position in the Irish Cement market and is guilty of an abuse of that dominant position by engaging, through Roadstone and Kilsaran, in below-cost selling in the concrete and concrete products market.

53. Once again it is notable that the allegation of abuse by a single undertaking is in the concrete market, not in the cement market, and again the same particulars are given.
54. There follow pleas in relation to inducement to breach of contract, interference with contract and intentional interference with economic relations. Those are essentially a subset of the cases in Schedule 1 where Goode Contract states that it had a contract with the purchaser and lost the contract because of some actions by the defendants.

VIII. Request for Particulars and Replies to Particulars
55. Some aspects of the request for particulars and the replies thereto are worthy of scrutiny.
Request 1(c): “Please specify precisely what is meant by the term ‘close links’”
Reply 1(c): “The Plaintiff contends that Kilsaran is secretly controlled by CRH”.

Request 1(d): “Please specify the material facts relied on to support the contention that there are close links between CRH and Kilsaran.”

Reply 1(d): “This is a matter for evidence.”

Request 1(e): “Please specify the material facts relied on by the Plaintiff to support the contention that CRH may exercise decisive influence over Kilsaran such that CRH and Kilsaran are part of one and the same undertaking.”

Reply 1(e): “This is a matter for evidence.”

56. The court has noted above the vagueness of, and will consider in greater detail later below certain particular difficulties presented by, the term “close links”. In Reply 1(c), Goode Concrete, to borrow a metaphor, ‘pins its colours to the mast’, indicating that it is the concept of control that it is concerned with in this regard. From Replies 1(d) and (e) it is clear that Goode Concrete cannot specify or identify or plead any material facts at all to support its assertion that there is secret control by Roadstone of Kilsaran.

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Request 10(d): “Please specify the material facts relied on to support the contention that Kilsaran is part of the same undertaking as CRH/Roadstone.
Reply 10(d): “The plaintiff claims that Kilsaran is secretly controlled by CRH. The material facts to support to this contention are a matter for evidence.”

57. Again, one can see from this that the notion of one undertaking is linked to the idea of secret control.

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Request 14(b): “Please specify by reference to a map the geographic market referred to by the reference to ‘the Dublin Concrete market.”
Reply 14(b): “The precise scope of the relevant geographic market is a matter for evidence, in particular expert evidence. Without prejudice to the foregoing, the reference to the ‘Dublin concrete market’ is sufficiently precise to allow the first and second named defendants to know the case they have to meet. Further, without prejudice to the foregoing, the relevant market encompasses the geographic area of approximately 25/30 radial kilometres from each plant outside the city boundaries of the M50 and the whole area inside the M50 that encircles Dublin City and a map is attached illustrating the area referred to.”

58. Reply 14(b), it seems to the court, is particularly relevant in the context of the discovery that is now sought in relation to the Dublin concrete market. Goode Concrete appears to have no difficulty in identifying what it asserts is the geographic scope of the Dublin market. It also accepts that ultimately the identification of a market, either in terms of relevant product or relevant geographic market, is a matter for expert evidence. And in any competition law case, these matters would be proved by expert evidence: they are not matters for discovery; they are proved on the basis of publicly available information and expert evidence.

IX. Some Legal Considerations
(i) The Decision in Framus.

59. The decision of the Supreme Court in Framus Ltd v. CRH plc [2004] 2 IR 20 has attracted no little attention in the within proceedings, not least though not only because in Framus, a case that is clearly of general importance, the plaintiffs made similar allegations against similar defendants to those appearing in the present case, and in relation to the ready-mix concrete market.
60. In his judgment in Framus, Murray J., writing in relation to the extensive discovery sought in those proceedings states, inter alia, as follows, at 30-31:

“As can be seen from the order of the High Court, the range of documents which the defendants were ordered to discover is very extensive. Although the category of documents to be discovered under the High Court order has been limited in various ways, such as by reference to particular customers, or contract, or regional market, or product market, they are nonetheless described in broad terms such as those relating to ‘prices and terms and condition of sale including special arrangements, price rebates, multi-product purchase agreements or arrangements, credit term, discounts, bonuses, waivers, loyalty schemes, and purchase incentives’. Such a broad description of the category of documents to be discovered is understandable in the circumstances of a case of this nature, where the very nature of a plaintiff’s claim gives rise to issues in respect of which specific documents relevant to those issues are peculiarly within the knowledge of the defendant and would be unknown to a plaintiff. This is the kind of situation which may arise in claims based on allegations of illicit anti-competitive agreements or practices, although it is not exclusive to such claims. Such a situation is a factor to be taken into account and I put it no higher than that as part of the circumstances in deciding the appropriate kind of order for discovery to be made.”
61. Moving on, Murray J. then deals with the issue of proportionality, observing as follows, at 38:
“It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out, the crucial question is whether discovery is necessary for “disposing fairly of the cause or matter”. I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered[1] 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. That is not to gainsay in any sense that the primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.”
[1] It seems to the court that the issue of cost necessarily arises as a corollary of extent and volume.

62. Continuing, Murray J. observes as follows, at 39-40:
“While I consider there is some substance in the plaintiffs’ arguments that in a case of this nature, that is to say, where the wrongful activities alleged against a party are ones which by their nature are likely to be concealed, thus making it difficult for an opposing party to identify particular documents or specify categories in a limited way, it may indeed be appropriate for a court to order discovery of documents relating to anti-competitive agreements or practices which are not directly related to particular acts or conduct which a party, perhaps fortuitously, is in a position to set out in their pleadings. However, the extent of discovery must be confined to what is necessary for the fair disposal of the case and this can only be decided in the context of the actual issues in, and facts of, the case itself. I think the statements of the High Court Judge have to be read in the context of this particular case and the extensive discovery which he did in fact order. The plaintiffs complain that they were effectively put out of business by the abuse of a dominant position on the relevant markets by the defendants and in particular by their concerted action in relation to such matters as the terms and conditions of sale of the products in question to buyers of those products. The fact is that they have been in a position to plead specific contracts and projects which were the subject of these alleged anti-competitive practices and which affected their businesses. However, what the plaintiffs in effect seek in this context is access to all documents concerning all transactions (within the relevant periods for the relevant markets) because they believe that among them that they will find evidence of the anti-competitive practices of which they suspect the defendants. Apart from its speculative element, this particular application is more akin to an investigative process rather than a discovery process and perhaps more appropriate to, as the High Court Judge pointed out, the exercise of a public investigatory power by a competent authority….
While I do not exclude the possibility of granting discovery for a specified class of documents which did not relate directly to a specific event pleaded but which was nonetheless relevant to the issues, whether such an order should be made and the extent to which it would be made must depend on the particular circumstances of the case….

This is in fact what the High Court Judge did at paras. 1(1), 1(2), 2 and 3 of his order. However, it seems to me that to extend the discovery provided for in paras. 8 and 11 of the High Court order to the business activities generally of the defendants would be of marginal advantage in addition to that which will accrue to the plaintiffs on the basis of the order as it stands. Also, to extend the ambit of the order in such an open ended way as suggested by the plaintiffs, would, in my view, be so burdensome on the defendants as to be oppressive (which I consider to be a consequence of its broad investigatory nature). It also seems to me that such an extended order would be disproportionate and I am not satisfied that it is necessary for advancing the plaintiffs’ case in these circumstances.”

63. The present case is in even more stark relief. Here the plaintiffs have hitherto been saying, for example, that the cost of the discovery being sought in this case could not top €100k and that they are looking for discovery in relation to specific contracts. But now a much wider exercise is sought of the defendants by way of discovery which, in relation to the first and second-named defendants (and in relation to categories 5 and 6 alone) may well generate costs in the order of €8.5m, a vast sum of money for any commercial enterprise, however large, and a cost that is indicative of the investigatory, speculative and disproportionate nature of the exercise that the plaintiffs now want to carry out in relation to our business and which they doubly urge upon the court from a misguided notion as to its role as a competition authority.
64. Continuing, Murray J., at 41-2, makes the following observations of relevance to (speculative) requests for discovery of communications with customers in respect of whom no anti-competitive agreements or arrangements have been pleaded, so a point which applies to all of the contracts in this case, other than those scheduled:

“The plaintiffs also submit the trial judge should have acceded to their application to make an order for discovery in respect of all documents relating to communications between any of the first five defendants and each of a list of sixteen customers, or the associate companies of those customers or any persons on their behalf between February, 1987 and February, 1995 and which relate directly or indirectly to the purchase, sale and pricing of concrete products (except for documents relating only to quality or credit control)….
In the course of the appeal, it was submitted that such documents could provide evidence of anti-competitive conduct and also evidence of the movement of prices on the market, which would provide the basis for economic analysis allowing the plaintiffs to demonstrate, for example, that there was a differential in prices in a particular geographical market and an adjoining market without any objective justification. The plaintiffs also submitted that, in order to avoid an application for discovery which might be considered too onerous, they limited their discovery to sixteen chosen customers, whom they were aware had purchased significant volumes of concrete products in different geographic locations, some of which operated in areas where the plaintiffs did not carry on business and others in which they did….

As regards this particular ground of appeal, I would first note that the High Court Judge has ordered discovery of all documents concerning pricing and terms and conditions of sale without limit as to particular customers against the third defendant (see para. 1 of the High Court order) and discovery against all other defendants of documents concerning prices and conditions of sale in the relevant Dublin region, Dublin City. Apart from the fact that the plaintiffs were granted extensive discovery concerning prices and conditions of sale in respect of the relevant products in the relevant markets in the two respects just referred to (and it would seem inevitable that much of the other documentation discovered under other heads would also relate to prices and conditions of sale), this request for discovery is couched in extraordinarily broad terms, notwithstanding that it is confined to sixteen customers. It is sought that the defendants should discover all documents relating to all communications between any of the first five defendants and each and every of sixteen customers, plus their associated companies, plus any person who communicated on their behalf over a two year period where those communications related directly, or indirectly, to the purchase, sale or pricing of concrete products. The only other limitation which the plaintiffs seek to put on the foregoing is that documentation or communications related to quality or credit control would be excluded. It is not at all clear what is meant by associated companies of the named customers, nor indeed how the defendants could be assumed to be in a position to identify such companies, if they exist, or the court itself, if it was called upon to enforce such an order. A reason given for choosing the customers in question is, according to the plaintiffs, that they are known to have been substantial customers for the products in question. In seeking discovery of communications between all these companies and the defendants of documents relating directly, or indirectly, to price and selling conditions in relation to all transactions between the relevant parties, it seems to me that there would inevitably be a great deal of documentation with repetitive information, whether or not it related to the issues between the parties in these proceedings….

Another feature of the application in this context is that it is sought, at least in part, with a view to carrying out a market analysis of pricing trends. I am not at all satisfied that the seeking of information for the purpose of carrying out a market analysis of such trends is an appropriate basis for an order of discovery, particularly of such a wide ranging nature. In any event, I am of the view, firstly, that price trends in a market may be the subject of expert evidence and that the range of documents sought to be discovered under this heading is so broad in its scope as to fail to comply with O. 31, r. 12(1), which requires that the motion for discovery ‘specify the precise categories of documents in respect of which discovery is sought’. In certain circumstances, the court may grant discovery on a more limited basis than that sought where it considers it appropriate to do so. On the other hand, it is not for the court to re-draft an applicant’s motion where it in effect amounts to a form of blanket discovery, which I consider this particular request to be. It may be appropriate to do so where a more limited category can be readily defined and it is in the interests of fairly disposing of the application. I do not consider this an appropriate case to try and fashion some limited order that might suit the plaintiffs, even if this could be done. Secondly, I am of the view that to grant the order sought under this head of the application, having regard to the discovery already granted to the plaintiffs, would be, at once, too speculative, disproportionate and unduly burdensome on the defendants. Accordingly, I do not consider this ground of appeal well founded.”

65. These last-quoted paragraphs, it seems to the court, are particularly relevant to the plaintiffs’ discovery applications in terms of the principles that they establish, being that discovery of communications with customers in respect of whom no anti-competitive activity has been pleaded would be speculative and unduly burdensome, that market analysis is essentially a matter for expert evidence rather than discovery, and that it is not for the court to re-draft an applicant’s motion for discovery if it has been expressed in terms which are too broad.
66. Continuing, Murray J. states, at 44-46:

“It is clear that these additional particulars referred to in the plaintiffs’ submissions do not relate to, and are different from, the generalised allegation referred to by the trial judge, namely that ‘other cement powder users in the State decided en bloc not to purchase’ from it. So far as that particular allegation goes, in my view, the High Court Judge was entirely correct in holding that it was too broad and general a statement so as to be properly susceptible to an order for discovery. The additional pleadings in the particulars referred to neither relate to, nor limit in any way, this generalised allegation….
As regards this ground of appeal, the plaintiffs submit that between them they operated in business over a combined period from 1986 to 1994. They submitted that any documents which are ordered to be discovered should not only relate to the period during which the particular plaintiff to whom the discovery pertains was in operation, but also for one year prior to the commencement of business and one year subsequent to the cessation of business. This, it was submitted, is of particular importance in relation to the movement of prices since documents relating to the price levels and the markets in which the plaintiffs were operating prior to their entry and subsequent to their exit would be particularly revealing. Alternatively, it was submitted that some lesser period prior to the commencement and cessation of business by the respective plaintiffs should have been included in the order for discovery….

As the High Court Judge pointed out in his judgment he was obliged ‘to balance the requirement of affording the plaintiffs a sufficiently comprehensive discovery relevant [to the issues] with avoiding an unduly wide discovery which would be oppressive to the defendants’. In my view, in determining the relevant dates for the discovery of documents, the High Court Judge exercised his discretion in the manner envisaged by Fennelly J. in his judgment, as cited above, when he stated that the court “should also 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 the fairness of litigation”. Moreover, to extend discovery so as to ascertain the movement in market prices, to which experts can often attest relates more to the seeking of information rather than discovery related to the actual anti-competitive practices alleged against the defendants. In my view, this ground of appeal also fails.”

67. The court notes that ‘generalised allegations’ of the type referred to by Murray J. in the above-quoted text fairly pepper the pleadings in the within proceedings. As to temporal scope (the subject of the last two of the above-quoted paragraphs), the court notes in particular the observation of Murray J. that “[T]o extend discovery so as to ascertain the movement in market prices, to which experts can often attest relates more to the seeking of information rather than discovery related to the actual anti-competitive practices alleged against the defendants.” That is precisely what Goode Concrete is seeking in this case. It is saying, in effect, ‘In relation to the period that we are complaining of, we would also like a period before and after in order that we might see what the movement of prices was.’ Murray J. considers this to be inappropriate, because it is looking for information, rather than seeking discovery related to the anti-competitive practices alleged.
68. As to the issue of discovery in relation to the control of companies, and that being too broad and general in the context of a discovery application, Murray J. observes as follows, at 46:

“On the basis of this ground of appeal the plaintiffs seek documents of the following nature:-

‘All correspondence, memoranda of conversations or minutes of meetings during the period February, 1987 to February, 1995 inclusive between any of the first five defendants and any other parties (whether other defendants, competitors, customers, suppliers, financial institutions, shareholders of competitors, companies office, accountants or persons on their behalf, or others, concerning any of the first five defendants (or their subsidiaries or associated companies or companies controlled by them) ownership, acquisition, control (including their way of loans, loan guarantees or otherwise), of or over sources of concrete products, aggregates or special de-concrete products in the State.’

…According to the submissions of the plaintiffs, this relates to the acquisition or control over companies in the ready-mix concrete industry, which enabled the defendants, or some of them, to control the market in those products. In my view, this is so broad and vague a category of documents as to offend against the letter and spirit of O. 31, r. 12 of the Rules of the Superior Courts 1986. Moreover, the identification of companies owned directly, or indirectly, by the defendants, or any of them, seems to me to be a matter of information and not documentation and therefore not an appropriate subject for discovery. The plaintiffs had other procedural options available to them to elicit this information, whether by interrogatories or otherwise. This ground of appeal must also fail.”

(ii) The Damages Directive.
69. The Damages Directive (Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (O.J. L349, 5.12.2014, 1)), touched upon previously above in the context of the designation of the court as a competition authority and the consequences of same, does not apply to the within proceedings because they were commenced before the date of actions in respect of which the Damages Directive, as transposed into Irish law, applies. Even so, it seems to the court still to be of general interest because a lot of the Damages Directive merely reflects the pre-existing position in Irish law. Among the provisions of interest are the following:
– Recital 16 provides as follows:

“National courts should be able, under their strict control, especially as regards the necessity and proportionality [so, the court notes, necessity and proportionality are recognised as governing principles] of disclosure measures, to order the disclosure of specified items [i.e. not, the court notes, broad discovery] of evidence or categories of evidence upon request of a party. It follows from the requirement of proportionality that disclosure can be ordered only where a claimant has made a plausible assertion, on the basis of facts which are reasonably available to that claimant, that the claimant has suffered harm that was caused by the defendant. Where a request for disclosure aims to obtain a category of evidence, that category should be identified by reference to common features of its constitutive elements such as the nature, object or content of the documents the disclosure of which is requested, the time during which they were drawn up, or other criteria, provided that the evidence falling within the category is relevant within the meaning of this Directive. Such categories should be defined as precisely and narrowly as possible on the basis of reasonably available facts.”

Recital 16 represents, in effect, an encapsulation of pre-existing principles in relation to discovery. So it would be strange if a plaintiff, who commenced proceedings before the Damages Directive came into force, was found to be entitled, in a competition law case, to get wider discovery then that applies following the commencement of a regime set by a directive which is perceived to be a liberalising measure as regards the bringing of actions for damages grounded on alleged infringements of competition law.
– Recital 18 touches on the issue of confidential information and respect for confidentiality, providing as follows:

“While relevant evidence containing business secrets or otherwise confidential information should, in principle, be available in actions for damages, such confidential information needs to be protected appropriately. National courts should therefore have at their disposal a range of measures to protect such confidential information from being disclosed during the proceedings. Those measures could include the possibility of redacting sensitive passages in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form. Measures protecting business secrets and other confidential information should, nevertheless, not impede the exercise of the right to compensation.”

The foregoing reflects the pre-existing law in this jurisdiction, and indeed in the United Kingdom, with the courts, in the exercise of their inherent jurisdiction, having established things like confidentiality rings and precluded certain persons from having access to certain documents in order to protect the confidentiality of information.
– Article 5(2) reflects the recitals, so far as concerns the drawing of categories of discovery narrowly in order to protect confidential information, providing as follows:

“Member States shall ensure that national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts in the reasoned justification.”

(iii) The Decision in Tetra Pak.
70. The court turns now to the decision of the Court of Justice in Tetra Pak International SA v. Commission of the European Communities (Case C-333/94P). That was a case in which Tetra Pak, an entity dominant in the aseptic packaging market, was alleged to have engaged in abusive conduct in the non-aseptic market. In its judgment, the Court of Justice looks at the issue of abuse of dominant position and whether the abusive conduct must have its effects in the market in which an undertaking is dominant, observing, inter alia, as follows:
“21. In its second plea, Tetra Pak principally casts doubt on the reasoning followed by the Court of First Instance in paragraph 122 of the judgment under appeal, which reads:

‘It follows from all the above considerations that, in the circumstances of this case, Tetra Pak’s practices on the non-aseptic markets are liable to be caught by Article 86 of the Treaty without its being necessary to establish the existence of a dominant position on those markets taken in isolation, since that undertaking’s leading position on the non-aseptic markets, combined with the close associative links between those markets and the aseptic markets, gave Tetra Pak freedom of conduct compared with the other economic operators on the non-aseptic markets, such as to impose on it a special responsibility under Article 86 to maintain genuine undistorted competition on those markets.’
[Court Note: What the Court of First Instance was saying here was that Tetra Pak was dominant on the aseptic market, but not in a dominant position on the non-aseptic market; nevertheless Art.86 applied to its conduct on the non-aseptic market because there were special circumstances, in particular, the leading position that Tetra Pak had on the market on which it was not dominant, and the close associative links between those two markets.]
…

25. In that regard, the case-law cited by the Court of First Instance is relevant. Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223 and Case 311/84 CBEM v CLT and IPB [1985] ECR 3261 provide examples of abuses having effects on markets other than the dominated markets. In Case C-62/86 AKZO v Commission [1991] ECR I-3359 and Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, the Community judicature found certain conduct on markets other than the dominated markets and having effects on the dominated markets to be abusive. The Court of First Instance was therefore right in concluding from that case-law, at paragraph 116 of the judgment under appeal, that it must reject the applicant’s arguments to the effect that the Community judicature had ruled out any possibility of Article 86 applying to an act committed by an undertaking in a dominant position on a market distinct from the dominated market.
[Court Note: The principle identified by the Court of Justice in the last-quoted text seems quite clear, viz. the European-level courts had not ruled out the possibility that Art. 86 could apply to the actions of an undertaking that was dominant in a market distinct from the market in which its impugned actions were effected. What does that mean translated into the circumstances of the within proceedings? It means that if one accepts the hypothesis that CRH is dominant on the cement market and not on the concrete market, its conduct on the concrete market can and could be an abuse of its dominant position on the cement market, if there are special circumstances. But it would have to be a closely associated market and Goode Concrete would have to identify special circumstances. No such special circumstances are pleaded in this case. The relevant product at issue in this case is not like cartons, some aseptic and some non-aseptic: here there are quite different products where the only link is that cement is an ingredient of concrete (and not even an essential ingredient as there are, apparently, cement-substitute products, such as slag, that could be used)].”

(iv) Some General Cases on Discovery.
1. Ryanair v. Aer Rianta

[2003] 4 IR 264

71. This case has been touched upon previously above. The facts of the case were that Ryanair claimed Aer Rianta to be in breach of national and European Community law in various respects and sought voluntary discovery, followed by a motion for discovery. Aer Rianta objected to the scope of discovery, pleading, inter alia, that the reasons for the necessity of the discovery had not been shown. Touching on the issue of necessity, Fennelly J. observed as follows, at 276:
“In the great majority of cases, discovery disputes have revolved around the issue of relevancy. There are fewer cases concerning necessity. There are good reasons for this. If there are relevant documents in the possession of one party, it will normally be unfair if they are not available to the opposing party. Finlay C.J., in his judgment in Smurfit Paribas Bank Ltd. v. A.A.B. Export Finance Ltd. [1990] 1 I.R. 469 emphasised, at p. 477, ‘the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice’. The overriding interest in the proper conduct of the administration of justice will be the guiding consideration, when evaluating the necessity for discovery.
The issue of ‘necessity’ for discovery has, consequently, usually been debated in cases where some other interest is involved, particularly the confidentiality of documents, especially where they involve the interests of third parties. To that extent, the arguments advanced on behalf of the defendant on this appeal, effectively that the plaintiff does not need the documents, because they have alternative means of establishing the relevant facts, has rarely arisen.”

72. Focusing momentarily on the second of the two paragraphs just quoted, it seems to the court that in a case such as this, where there are alternative means of getting information available to a plaintiff, where there are rights of third parties at play, and where, for example, confidential information and even the personal data of employees of Roadstone is at stake (in terms of wage rates, haulage contractor payments and waiting-time payments), the issue of necessity clearly arises centrally for consideration.
73. Fennelly J. emphasises the confidentiality-necessity dimension of matters again at 277, observing:

“The court, in exercising the broad discretion conferred upon it by O. 31, r. 12(2) and (3), must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It should also 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 the fairness of the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may, no doubt, include the possible service of notices to admit facts or documents. But there are two sides to litigation.”
74. The “alternative means of proof” to which Fennelly J. refers include interrogatories but Goode Concrete appears to have set its mind against deploying same at this time.

2. Ryanair Ltd v. Bravofly and Travelfusion Ltd
[2009] IEHC 41

75. These proceedings arose out of Ryanair’s objection to the use of automated systems and software to extract real time flight information from Ryanair’s website for the purposes of presenting it on websites facilitating flight search and booking services and run by Bravofly. Ryanair claimed that such ‘screen scraping’, breached its online terms and conditions, violated certain of its intellectual property rights and involved a number of torts. Bravofly denied all of the claims and also asserted, by way of defence and counterclaim, that Ryanair was abusing a dominant position in breach of European Union and Irish competition law. Dealing with an application, inter alia, to strike out parts of the counterclaim, Clarke J., as he then was, observed as follows, at paras. 5.16-5.18:
“5.9 However, it is important to emphasise that in these proceedings the only matter that is relevant in relation to the flight market, is the alleged dominance of Ryanair in that market. Whether Ryanair has (if it be so dominant) abused that position in the flight market is not relevant because Bravofly does not operate in the flight market. While some of the underlying facts on which it might be contended that Ryanair has abused its alleged dominant position in the flight market can, in accordance with the established jurisprudence, be relied on as part of the assessment of whether it is in fact dominant in that market, it is only those underlying facts which might, arguably, go to show a sufficient level of market power to establish dominance that are relevant, and not whether those facts might also amount to an abuse.
…
5.16 The question which I have to address is as to whether the allegation deriving from that fact, in the manner in which it is particularised in para. 68 of the amended defence and counterclaim, is sufficient to properly bring such a claim. The issue seems to me to be analogous to that which I had to consider in National Education Board v. Ryan & Ors [2007] IEHC 428, concerning the proper pleading of a claim in fraud. While the analogy between a fraud claim and an anti-competitive activity claim is far from complete, there are not insignificant analogies. Both involve allegations which, if true, involve activity which is likely to be at least in part clandestine. A person bringing a valid claim in respect of such matters will be unlikely to be able to plead such a claim with a great degree of particularity in advance of having had the opportunity to exercise procedural measures such as discovery. On the other hand there is clear competing requirement that a party should not be able to make a bald and general accusation of wrongful activity and thus gain access to its opponent’s private papers, for the purposes of seeing if it can make out a case. A balance between those two competing requirements needs to be struck.
5.17 As I pointed out in National Education Board it seems to me that the court is entitled to require something more than a bald claim before permitting the pleadings to close, and the plaintiff to seek discovery. However, a court should not go so far as to require an overly detailed particularisation of the claim, which would have the effect of potentially limiting the claim in a way such as would exclude from discovery material that might well be relevant to true wrongdoing. I am satisfied that an analogous position applies in an anti-competitive activity claim such as this. A party should not be permitted to make a bald accusation of anti-competitive behaviour and hope to be able to particularize it as a result of documents obtained on discovery or by reason of the results of other procedural measures. On the other hand a party should not be required to particularize such a claim in such great detail (prior to discovery), such as might well exclude it from the reasonable opportunity of obtaining material information on discovery.

5.18 While it is fair to say that it would not be proper to characterize the claim made by Bravofly in para. 68 of the amended counterclaim as being merely a ‘bald’ claim, given that there is a reference to the relevant third party, and given that there is clearly a factual basis for the assertion that there is a contract between Ryanair and that third party (the existence of the contract is relied on by Ryanair), which gives exclusive rights to that third party in relation to the exploitation of aspects of Ryanair’s website, nonetheless I am satisfied that the claim as currently formulated falls on the wrong side, from Bravofly’s perspective, of the line between what it is reasonable to require of a plaintiff in terms of detail prior to discovery. In those circumstances, as noted in respect of the first category, it is not for me to be prescriptive as to the precise way in which Bravofly should formulate its claim under this heading. I will, therefore, afford Bravofly an opportunity to reformulate this aspect of the claim to include a significant amount of additional detail as to the manner in which it asserts that such a contract is anti-competitive, and what relief is said to flow from that assertion.”

76. What Clarke J. seems to be saying in the above-quoted text is, inter alia, that for Bravofly to be coming in by way of counterclaim and saying to Ryanair ‘You have abused your dominant position on the flight market’, is irrelevant because Bravofly does not operate on that market. Likewise, in the within proceedings, Goode Concrete is saying to CRH ‘You are dominant on the cement market’. However, Goode Concrete does not operate on the cement market; it operates on the concrete market. Clarke J. also appears to be reluctant to countenance the notion that dominance on the flight market could yield a competition law violation on the market for electronic information that facilitates flight bookings. Obviously, the decision of the Court of Justice in Tetra Pak demonstrates that such cross-pollination is possible in the right circumstances; however, it needs closely associated markets to occur and the aggrieved party would need to plead and identify special circumstances (and here Goode Concrete has not done so). Notable too about Clarke J.’s solution to the case before him is that he considers it inappropriate to invade upon Bravofly’s freedom of action (“[I]t is not for me to be prescriptive as to the precise way in which Bravofly should formulate its claim”). Instead, in what, if the court might respectfully observe, is a proper deference to that freedom of action, he affords Bravofly the opportunity to reformulate the relevant aspect of its claim so as “to include a significant amount of additional detail as to the manner in which it asserts that such a contract is anti-competitive, and what relief is said to flow from that assertion.”

3. Hartside Limited v. Heineken Ireland Ltd
[2010] IEHC 3

77. In these proceedings Hartside sued Heineken Ireland consequent upon what was said to have been a breach by Heineken Ireland of the terms of a joint venture agreement entered into in 1996. In the context of seeking discovery, a range of categories of documents was sought by each of the parties and a dispute as to the proper scope of discovery ensued. In the course of giving judgment, Clarke J. observed as follows, at para.5.9:
“5.9 Finally, I should refer to the difficulties which I had to address in both National Education Board v. Ryan & Ors [2007] IEHC 428 and Moorview Developments Limited v. First Active plc [2008] IEHC 211. Both of those cases involved allegations of fraud which are not, of course, of any relevance to this case. However, it does not seem to me that the issues raised are confined to fraud cases (indeed, I had occasion to indicate that similar principles applied in the competition field in Ryanair v. Bravofly [2009] IEHC 41). The overall problem is one between balancing, on the one hand, the need to facilitate a party who may have a legitimate claim but who may require access to information available only to its opponent in order to fully plead and ultimately substantiate that claim on the one hand, and the need to prevent, on the other hand, a party, by making a mere allegation, from being able to have a wide range of access to its opponent’s documentation, including what may well include highly confidential documentation. The balance struck in…Moorview, National Education Board and Ryanair, leads to the conclusion that a party may be required to pass a limited threshold of being able to specify a legitimate basis for their case before being given access to their opponent’s relevant documentation. The need for such a restriction seems to me to stem from the undoubted undesirability of allowing a mere allegation to give rise to an entitlement to access highly confidential information.”
78. The relevance of these observations to the within proceedings, where the greatly speculative nature of the pleadings has been identified previously above, is clear.

(v) Confidentiality Rings.
1. Ambiorix Ltd v. Minister for the Environment (No. 1)

[1992] 1 I.R. 277

79. The decision in Ambiorix arose from a challenge to a decision in relation to the designation of areas under the Urban Renewal Act of 1986 and a related application for discovery against the State. The Supreme Court decided that there was no absolute privilege attaching to the categories of documents in respect of which discovery was sought. Of note for the purposes of the within judgment are certain observations of Finlay C.J., at 286, viz:
“Furthermore, the Court has an inherent jurisdiction, I am satisfied, to take such steps as are necessary to regulate the production of documents so as to prohibit any infringement of this restriction.
In these circumstances, I am satisfied that either by a method of editing the documents which are referred to in this section of Mr. Matthews’ affidavit or by restricting their inspection to lawyers engaged on behalf of the plaintiffs who would give to the Court an undertaking that they would not reveal their contents to their clients, except with special leave of the court, the commercial and financial interests of the parties who made these representations should be protected.

I would bear counsel for the plaintiffs and the defendants further on this particular issue in the hope that a simple formula could be devised between them which would give to the plaintiffs adequate information concerning the material matters contained in this particular collection of documents, and would give to the persons who wrote to the Department adequate protection of their commercial and financial interests.”

80. In the above-quoted text, one finds the Chief Justice, now some quarter of a century ago, recognising: the acceptability of the principle that discovery of documents can be preconditioned on some type of confidentiality ring; that such a confidentiality ring might be confined to the lawyers, with their clients properly excluded therefrom; and that the lawyers could be required to give an undertaking that they would not reveal the contents of documents to their clients, except with special leave of the court.
81. The decision in Ambiorix falls to be distinguished from the decision of the Supreme Court in Director of Public Prosecutions v. Special Criminal Court [1999] 1 IR 60. Essentially what that later case decides concerns informant privilege, specifically that where in a criminal case an accused person seeks access to witness statements, which are not in the Book of Evidence but which potentially could be exculpatory, the accused himself is entitled to have those statements disclosed to him. Goode Concrete has sought in the within proceedings to rely on certain passages in the judgment of Carney J., in the High Court, in relation to disclosure of witness statements. However, that is a case which is very much in the criminal law sphere, and peculiar considerations arise in criminal cases, as the Supreme Court has emphasised time and again, given that a person’s liberty is at stake. Moreover, one can readily imagine that in a criminal case, for example, there may be a statement from a particular person and an accused may be able to instruct his solicitor as to characteristics of that person and so assist in terms of the defence of the case. Or it could be, for example, that an undisclosed statement that the prosecution possess and which is not in the Book of Evidence might be from a person that an accused is be in a position to indicate ought to be the true suspect. So there are a variety of reasons why a criminal case would be different from a case in the civil context such as Ambiorix, even if that was distinguished in Ambiorix, by O’Flaherty J. at 86, merely on the basis that it was “a very special case” (though notably it was not stated to be per incuriam).

2. Cooper Flynn v. Radio Telefís Éireann
[2000] 3 I.R. 344

82. This was a decision concerned with discovery against a bank, and the establishment of a disclosure ring, in a case in which Ms Cooper Flynn brought a libel action against RTÉ over allegations that she had induced certain persons to engage in a scheme aimed at tax evasion. In the course of his judgment, Kelly J., as he then was, identified, at 352-3, certain principles recognised by Simon Brown L.J. in Wallace Smith Trust Co. v. Deloitte [1997] 1 W.L.R. 257, as also being of application in this jurisdiction, observing as follows:
“In Wallace Smith Trust Co. v. Deloitte [1997] 1 W.L.R. 257, Simon Brown L. J. at p. 271 set out the basic principles governing the proper application of the equivalent English rule as follows:-

‘2. The burden lies on the party seeking inspection to show that that is necessary for the fair disposal of the action. I need not refer further to the question of ‘saving costs’, the other limb of r. 13(1), that not being relevant here.
3. If no element of confidentiality (or, of course, public interest immunity – but that only becomes relevant on the cross-appeal) is asserted in the documents, routinely they will be produced for inspection without the need for a r. 13 hearing on the issue of necessity. As Lord Scarman said in Air Canada v. Secretary of State for Trade [1983] 2 A.C. 394 at p. 444:-

‘It may well be that, where there is no claim of confidentiality or public interest immunity or any objection on the ground of privilege, the courts follow a relaxed practice, allowing production on the basis of relevance. This is sensible bearing in mind the extended meaning given to relevance in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55.’
4. If, however, confidentiality is asserted or any other ground of objection arises, r. 13 assumes relevance and it becomes necessary to decide whether inspection is necessary for the fair disposal of the action. As Lord Scarman had earlier said in Science Research Council v. Nassé [1980] AC 1028 at p. 1089:-
‘The only complicating factor is the confidential nature of relevant documents in the possession of the party from whom redress is sought. The production of some of these may be necessary for doing justice to the applicant’s case. If production is necessary, they must be produced. The factor of confidence however militates against general orders for discovery and does impose upon the tribunal the duty of satisfying itself, by inspection if need be that justice requires disclosure.’
5. Disclosure will be necessary if: (a) it will give ‘litigious advantage’ to the party seeking inspection (Taylor v. Anderton [1995] 1 W.L.R. 447 at p. 462 and (b) the information sought is not otherwise available to that party by, for example, admissions, or some other form of proceeding (e.g. interrogatories) or from some other source (see e.g. Dolling-Baker v. Merrett [1990] 1 W.L.R. 1205 at p. 1214) and (c) such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (see e.g. Science Research Council v. Nassé [1980] AC 1028 at p. 1076 per Lord Edmund-Davies).
6. If a prima facie case is made out for disclosure, then as several of the speeches in Science Research Council v. Nassé make plain, the court will first inspect the documents: (a) to ensure that inspection is indeed necessary (that very safeguard of itself making the court generally readier to accept that the threshold test for disclosure is satisfied) and (b) assuming it is, to see if the loss of confidentiality involved can be mitigated by: (i) blanking out parts of the documents, and/or (ii) limiting the disclosure to legal advisors only… Those basic principles I have sought to distil from all of the many authorities which were placed before us. Several passages in the various judgments are relevant; it would however be wearisome and, I think, ultimately unproductive to cite them …’

I am of the opinion that these basic principles govern the proper application of the relevant rule in this jurisdiction.”
83. As can be seen, Kelly J. adopts principles which indicate that if it comes to the stage of inspection one looks closely at necessity and, if necessary, blank out parts of documents and/or establish a confidentiality ring, and that is ultimately what Kelly J. did, writing at 357:
“I therefore make an order directing the bank to permit inspection by the first and second defendants of the 65 client files in an unredacted form. This will mean that the names, addresses and other details of the customers will become known but only to a limited number of persons. I propose (and indeed I am not asked to do otherwise) that the information should be made known only to the same persons as were permitted by Johnson J. Accordingly, the inspection may be carried out by:-
(1) the solicitors on record for the first and/or second defendants, their servants and/or agents;

(2) counsel retained by the first and/or second defendants;

(3) [certain in-house counsel of RTÉ]”.

84. As can be seen, the confidentiality ring established by the court in Cooper Flynn embraced lawyers, both in-house and external.

3. Koger Inc and anor v. O’Donnell and ors
[2009] IEHC 385

85. Koger was a case in which there were allegations that the defendants, who were former employees of the plaintiffs, launched a software product on the back of confidential information to which they had access. In the discovery related of application that went before Kelly J., the issue of principle arising for adjudication, he said in the introductory paragraph, was “whether an officer or officers of the plaintiffs ought to have access to material to be discovered by the defendants which contains what the defendants consider to be highly confidential information and where disclosure of it will, it is said, be highly damaging to them. The defendants contend that a successful defence of these proceedings will be a Pyrrhic victory if disclosure of the material is furnished to the plaintiffs.” When he turns to his legal analysis of the application before him, Kelly J. observes as follows:
“The general legal position which obtains in respect of disputes of this nature is summarised in Matthews & Malek on Disclosure (2007 ed.) under the heading “Exposure of the parties’ trade secrets or other confidential information” as follows:-

‘As with third party confidentiality, the fact that giving disclosure would involve the loss of the parties own trade secrets or confidences is no answer in itself. Indeed, since it is the parties and not even a third parties’ confidence which is threatened, the position is a fortiori. But the court will more closely scrutinise disclosure sought, to ensure that it truly is material and not oppressive. Although disclosure will normally have to be given, protective limitations may be (and often are) introduced at the stage of inspection.’”
86. Kelly J. then proceeds to consider a number of cases where difficulties of the type presenting before him had previously been considered by the courts, before observing as follows:
“Thus far, all of the cases allowed disclosure albeit in a conditional form. There are cases on the other side of the line where it has been refused. One such case is Sport Universal v. ProZone Holdings Limited [2003] EWHC 204. That was a decision of Mr. A. Mann, Q.C., sitting as a Deputy Judge of the Chancery Division in England. In that case it is alleged that the defendants, former employees of the plaintiff, had left the plaintiffs’ employment and created their own rival software product which analysed players’ performances at rugby. The plaintiffs alleged that they thereby infringed copyright in the plaintiffs’ software product. It was said that the defendants ‘Clint’ product was superior to the plaintiffs’ product. At the commencement of the proceedings the plaintiffs’ representatives secured a delivery up of the defendants’ source code on the undertaking that it would be shown only to the lawyers and the plaintiffs’ expert. The code was analysed and particulars of similarity prepared. Permission was then sought to vary the undertaking so as to allow the technical director of the plaintiff to see the defendants’ source code. The Judge declined to permit the plaintiffs’ technical director access to the source code. He said:-

‘I start from the premise that although any bar on disclosure to a party is exceptional, this is a case in which there should be such a bar. The restrictions on disclosure were offered in an undertaking given by the claimant at the outset and it is only relatively recently that it is sought to be released from it. The claimant obviously accepts that the defendants’ source code is not material which should be freely available and disclosed to all the claimants’ officers and to that extent the burden on the defendants of showing that there should be some restrictions and disclosure has in effect been automatically fulfilled. The claimant was prepared to continue with that non-disclosure regime for a significant number of months during which the action was conducted at the outset. In particular, for a period of, I think, over a year, it did not seek any release from the undertaking and was apparently content for the work of comparison of the two programmes to be carried out by its expert unassisted by Mr. Giorgi or any other employee or officer of the claimant seeing the source code himself or herself. It might have preferred a different regime, and I can quite see it might have been more convenient, but it did not press for one. I am, therefore, prepared to conclude that the source code is very sensitive information, and that there would be potential damage to the interest of the defendants if it is revealed to officers of the claimant, and that it is not absolutely necessary at this stage that the blanket restrictions on disclosure should be released, as least in terms of the proper analysis of the software.
However, that does not conclude the matter…the claimant has managed for a considerable time without the technical assistance of Mr. Giorgi and it is in the nature of this case that the claimant’s case at trial will turn on the evidence of the expert and not Mr. Giorgi himself. I accept that it might be more convenient for Mr. Giorgi to assist the expert but I do not think it is necessary, even bearing in mind the proximity of the trial. As to the giving of instructions, I do not think that it is necessary at this stage for Mr. Giorgi, as opposed to perhaps a non-technical officer, to have access to the code. I do not see at present that that access is necessary.’”

87. The fate of Mr Giorgi is analogous to the issue presenting in the within proceedings as to whether Mr Peter Goode needs to have access to such documents as may be discovered. One of the curious features of this case is that Mr. Goode, who appears anxious to gain access to details in relation to the prices and costs and efficiencies of the defendants, has never adequately explained why he, as distinct from his expert, has to gain access to this information, and why (a) the expert cannot simply inform Goode Concrete’s solicitor as to what the expert has found in terms of whether or not the prices at which specific contracts were tendered were below-cost at that time, and (b) why Goode Concrete’s solicitors cannot then (i) get instructions from Goode Concrete on the basis of the expert’s advices and conclusions, and (ii) proffer advice by reference to the expert’s advices and conclusions. (If the expert considered it necessary to include in her report certain information that had not previously thereto been disclosed to Goode Concrete pursuant to such order as this Court may issue, the need for disclosure would presumably be the subject of application at that time).
88. Continuing on from the above-quoted text, Kelly J. writes as follows:

“This case [Sport Universal] is perhaps the strongest from the defendants’ point of view. The defendants did, however, call my attention to other decisions such as Reynolds Leasing Corporation v. Carreras Rothmans Limited (19th July, 1983) in which Falconer J., in dealing with a case concerning a patented invention for processing tobacco, restricted disclosure beyond the independent experts to the chief in-house patent counsel of the plaintiff and a member of a firm of United States patent attorneys representing the plaintiffs.
Aldous J. in International Video Disk Corporation v. Nimbus Records Limited (No. 1) (11th April, 1991), ordered disclosure which was confined to independent expert witnesses and two of the plaintiffs’ patent counsel. The court noted that neither of them was involved in design or manufacture. Their sole task was in exploiting the plaintiffs’ patent portfolio.

In Communications Patent v. Cable Time, the same judge on 22nd February, 1989, refused disclosure to a specialist patent agent working as a consultant for the plaintiff, noting that disclosure had already been made to lawyers, patent agents and experts. The court ordered disclosure to an employee of an associated company of the plaintiff who had responsibility for the conduct of the case but had limited technical knowledge and was not associated with the plaintiffs’ research and development.

CONCLUSIONS

The above case law all seems to demonstrate that the restriction which the defendants seek to place on disclosure of the material namely, only to be seen by the experts or alternatively only by the experts and the legal advisors but to deny it to even a limited number of persons in the plaintiffs’ organisation is exceptional. Such restriction can be ordered but it is unusual. If such a restriction is to apply, there must be exceptional circumstances which would justify it.

…

The case is a finely balanced one but I have come to the conclusion that the interests of justice require limited disclosure of the material in question. The very limited disclosure contemplated in the confidentiality agreement is not sufficient to permit of a fair trial. I propose, subject to hearing counsel, to make an order permitting disclosure to the plaintiffs’ legal advisors (counsel and solicitor) and to a nominated officer of the plaintiffs under strict conditions.

These conditions will include:-

(i) An undertaking on oath from the nominated officer of the plaintiffs that the material disclosed will not be used for any purpose other than the conduct of this litigation.
(ii) That the documentation will at all times remain within the custody of the plaintiffs’ solicitors who must give an undertaking to the court that they will not part company with such material or allow it to be copied in any way without the defendants consent or leave of the court. They must also undertake on oath that the material will not be used for any purpose other than the conduct of this litigation.

(iii) The access to be had by the named officer of the plaintiff to the material will have to be in the presence of the plaintiffs’ solicitors.

(iv) That a record be kept of the material examined by that officer and the dates, times and duration of such examination.

(v) At the conclusion of the litigation, the material will be returned in its entirety to the defendants’ solicitors.”

89. The court notes the rigour of the restrictions imposed by Kelly J.

4. Church of Scientology of California v. Department of Health and Social Security
[1979] 1 WLR 723

90. In this case, the Church of Scientology had brought a number of libel actions against the Department of Health and Social Security and certain of its officers. The actions arose out of letters written to foreign health authorities and information given to the press concerning the activities of the plaintiffs and their treatment of mentally sick people. The defendants’ list of documents referred to hospital notes and the medical records of people who were alleged to have been inexpertly treated by the plaintiffs and documents and letters from people containing information adverse to the plaintiffs. The defendants objected to the disclosure of these documents on the ground of confidentiality. The master made an order excusing inspection of the letters and documents unless (i) the plaintiffs’ solicitor undertook that they would not be shown or their contents revealed to anyone but the plaintiffs’ counsel and (ii) the plaintiffs undertook not to use the documents for any purpose other than the conduct of the action. In respect of the medical reports inspection was limited to a registered medical practitioner, appointed by the plaintiffs for the purpose of the actions, who had undertaken in writing not to disclose the contents thereof. The judge, on appeal, affirmed the master’s order on the ground that public interest required the preservation of privacy and the protection of that confidential information. The Church appealed.
91. On the question whether the court had jurisdiction to restrict disclosure of documents which were not privileged and were required to be disclosed as being necessary for disposing fairly of the cause or matter, the Court of Appeal held that:

(1) although a party to an action had prima facie an unrestricted right to inspect the other party’s documents, that right was only for the purposes of the action, and, where there was a real risk of a party using matters disclosed on inspection for a collateral purpose, the court could restrict inspection under its inherent jurisdiction to prevent an abuse of the process of the court;
(2) the court would place restrictions on the plaintiffs to control the manner in which the documents were disclosed to persons acting on their behalf; however, since the terms of the master’s order were too restrictive, the court resolved to substitute an order in the terms agreed between the parties.

92. There are a number of passages in the judgment of Stephenson L.J., at 733-5 and 741-3, that the court has found of assistance when it comes to the issue of whether or not, and on what terms, to establish a confidentiality ring in the context of such discovery as falls to be ordered in the within proceedings, viz:
“The object of mutual discovery is to give each party before trial all documentary material of the other party so that he can consider its effect on his own case and his opponent’s case, and decide how to carry on his proceedings or whether to carry them on at all. The sight of one document may lead a plaintiff to abandon his action or a defendant to throw up his defence, or it may lead a party’s legal advisers to advise one of those courses but may not deter the client from pursuing his action or his defence against their advice.
Another object is to enable each party to put before the court all relevant documentary evidence, and it may be oral evidence indicated by documents, so that justice can be done. This object is achieved by each party inspecting all documents disclosed if it wants to. Unless a party is in person, production would ordinarily be by a solicitor to a solicitor. Solicitors are a convenient receptacle or screen…for the other side’s documents. Some documents’ effect on litigation is better judged by legal advisers than by the parties themselves or their agents. Some documents are better valued or appreciated by experts, e.g. an accountant or an architect or a doctor. Some documents are better not seen by an individual plaintiff or a defendant, for example in infant cases. In some cases (like this) the party is a body corporate and inspection must be by the eyes of servants or agents.

Can then an individual litigant insist that he or she sees what his or her legal advisers see? Can a litigating company insist on some servant or agent seeing what its legal advisers see? The answer, I think, must be normally yes. If a party objects to the other party inspecting except by an agent can the other party insist on personal inspection, if the party is an individual, or inspection by any particular officer or officers, or servant or agent, if the party is a corporation? Or has the court the power under the rules, or outside them by inherent jurisdiction, to deny inspection to a party and restrict it to an appropriate servant or agent approved by the court, or by the other side, or by both, for instance to its solicitors and to them only, or to its medical advisers and to them only, where (as here) the party is a body corporate?

The authorities seem to me to show that one party can object to a particular agent appointed by the other party to inspect, and the court will uphold the objection and restrict inspection to an agent considered suitable, appropriate or approved. They also show that one party can object to the other party, whether an individual or a corporation, inspecting, and the court will uphold such objection and control disclosure in the interests of justice and fairness to both parties, and will restrict inspection to an approved agent on his undertaking not to disclose the inspected document or its contents to others, including his own principal, the party concerned himself or itself. This is established in the case of trade secrets and in the case of press informants on the authorities which I have already cited.

…

[I]n McIvor v. Southern Health and Social Services Board [1978] 1 W.L.R. 757. Lord Scarman, at p. 763, agreed with Lowry C.J. [in his judgment in the Court of Appeal in Northern Ireland] when he said:

‘If Parliament had wished to enact provisions for discovery, limited in the ordinary case to medical advisers, it could have done so, instead of using language importing conventional discovery. It could still enact such provisions, but not, I hope, before very careful deliberation.’

Lord Russell of Killowen, at p. 762, approved this statement by Lowry C.J.:

‘The High Court has an inherent jurisdiction to attach conditions to most orders in the interests of justice, but I do not think that it has any jurisdiction to order disclosure to the applicant on condition that disclosure is not made to the applicant (or to his legal advisers).’

It is I think implicit in those speeches and those quotations that conventional discovery is regarded as ordering production for inspection by a party or his legal advisers, but the question never arose in that case whether there could be production for inspection by the legal adviser but not by the party himself. The only issue was between an order for production for inspection by the party or his legal adviser on the one side and an inspection by a medical adviser on the other side. So I get no help from that case in deciding this point, although it does, I think, emphasise what is perhaps obvious that in the ordinary course inspection must be inspection by the party himself, herself or itself.
What the court is being asked to do, Mr. Hytner [counsel for the Church of Scientology] submits, is contrary to [the applicable rule of court]…as no privilege is claimed. I am of opinion that, as no privilege is claimed, the court can only act contrary to the rule if compliance with the rule is unnecessary for fairly disposing of the action or if the court has inherent jurisdiction to act contrary to the rule.

Mr. Bowsher [counsel for the defendants] has not submitted that compliance is not necessary for the purpose of disposing fairly of the action or of saving costs, and I doubt if such a submission could be made with success. I am of opinion that Mr. Bowsher is, however, right in submitting that the court has inherent jurisdiction to prevent the abuse of its own process, or, as it is sometimes termed, ‘process of law’, and that that jurisdiction gives it the power which was taken by the master and by the judge in this case.

The court has always, in my judgment, inherent jurisdiction to prevent abuse of that process, and indeed must take steps to prevent it of its own motion, as where illegality is brought to its attention. Discovery, including production of documents for inspection, is part of its process to enable an action to be carried to a just conclusion. As Lord Denning M.R. said in Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881, 896G: ‘A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.’ To use a document produced for inspection for a collateral or ulterior purpose is a misuse against which the court will proceed for contempt or by injunction: see Alterskye v. Scott [1948] 1 All E. R. 469. But that proceeding may be after the abuse has taken place. The court has power to prevent or reduce the chance of such an abuse taking place by an undertaking. As it seems to me, it can do it in two ways, it can do it either by refusing an order except on an undertaking or it can do it by granting an order conditional on an undertaking being given. Which way it does it does not seem to me to matter, and seems to me a question of form rather than substance, with all respect to Mr. Hytner’s argument.

Furthermore, I do not think it matters in most cases whether the object of preventing an abuse of process is achieved or attempted to be achieved by restricting inspection to a person other than the party or only by refusing to order any inspection unless the party undertakes not to misuse the material. In most cases, an undertaking is unnecessary because it is implied, as pointed out in Alterskye’s case where an undertaking was refused. In the remainder, an undertaking by the party himself or by his counsel or solicitor may be enough; but it seems to me that there is a very small hard core of cases where the undertaking is not enough and where the court may come to the conclusion that the party cannot be trusted not to misuse the information and so abuse the process of discovery. That is really what Mr. Bowsher is maintaining in this case in support of the order under appeal; and in the form in which it is made, particularly that which relates to the hospital notes and medical reports, it seems to me that the order must be justified on that basis, or it must be revoked or modified.

…

I hope I have now covered…all the matters which…I think have to be considered in arriving at the right order to make in this case. (1) I am satisfied that the court has inherent jurisdiction to do what it can to restrain a threatened or likely or foreseeable abuse of the process of the court by misusing the documents which are the subject of the order under appeal for a purpose other than the purposes of this action, and to do that by controlling or restricting production for inspection of documents for which privilege has not been claimed. (2) I am satisfied that on the material which we have in this case some sort of restriction ought to be imposed in the exercise of that jurisdiction. (3) I am of opinion that the restrictions which were imposed, particularly the restriction to a medical officer of the hospital notes and the medical reports, were wrong.

Faced with the possibility of the court taking that view, Mr. Hytner is prepared to submit to an order setting out certain restrictions with which Mr. Bowsher is satisfied. That absolves the court, as I see it, from upholding the master’s order or from devising an order of its own if, as I think right, it can and should make an order restricting discovery in some way.

The order which I propose we should make is this: That the appeal should be allowed and for the order made by the master and affirmed by the judge, should be substituted this order:

‘Upon the plaintiffs by their counsel expressly undertaking that upon inspection Mr. Bird, their solicitor only will attend and take one copy of each of the documents referred to in this order (hereinafter called the restricted documents) and that Mr. Bird shall keep the same confidential to himself and leading and junior counsel save in so far as he be advised in writing to the contrary by counsel. And upon the plaintiffs by their counsel undertaking that Mr. Bird will show a copy of this order to every person who is to be supplied with a copy of a restricted document or supplied with information therefrom before the supply of such copy or information with a warning that the document or information is not to be used for any purpose other than a purpose connected with this action. And upon the plaintiffs by their counsel expressly waiving legal or professional privilege in respect of any such written advice relevant to any issue that may be before the court in this consolidated action (whether raised in committal or sequestration proceedings or otherwise) as to whether they have acted wholly or partly in accordance with or contrary to such advice and undertaking to instruct any counsel who may be instructed to give such advice to keep a copy thereof and to be at liberty, in the event of any such issue arising and his being called upon by the court so to do, to lodge such copy with the court, and further to instruct him to be at liberty, should he entertain any reasonable apprehension that the plaintiffs are acting or may act otherwise than in accordance with any such advice, and should he see fit to inform counsel for the defendants of such apprehension and/or to furnish counsel for the defendants with a copy of the advice upon which such apprehension arises.

Order, that the defendants do allow Mr. Bird, the plaintiffs’ solicitor personally to inspect the documents referred to in sub-paragraphs (3) and (4) of paragraph 3 of the master’s order of May 11, 1977.
Order, that the plaintiffs do make and serve a further and better list of documents verified by affidavit of the plaintiffs by their proper officer within 21 days.

Order, that the defendants be not bound to give inspection of the restricted documents except upon mutual discovery of documents generally after the service of the said further and better list of documents and the final determination of any application arising therefrom. To that I would add, after discussion with counsel.

Order, that the defendants do make and serve a further and better list of documents verified by affidavit of the defendants by the defendant Cashman within three months.

Order, that all future interlocutory applications be made to a judge who shall so far as practicable retain such matters to himself.’”

5. MTV Europe (a firm) v. BMG Records (UK) Ltd and ors
(Unreported, Court of Appeal of England and Wales, 10th March, 1998)

93. This was a case where the Court of Appeal considered an application to ‘tighten’ a confidentiality ring. It declined to do that, but it did uphold the idea of providing a schedule of prices. Certain observations of Sir John Balcombe have a particular resonance in the context of the within proceedings, viz:
“Very extensive discovery was requested by the defendants….The Vice-Chancellor…accepted that discovery along the lines sought by the defendants was unnecessary and unduly burdensome. He therefore ordered that in relation to most of the category of documents sought by the defendants, MTV should have the option to respond by serving schedules of figures and particulars rather than the underlying documents which evidence and support those figures and particulars.
[Court Note: The analogy in the within proceedings would be schedules of prices/costs.]

…

Categories 4 and 5 bear an asterisk, they being categories of the type where schedules can be supplied instead of documents.

…

The second issue on the appeal is, even assuming the documents are relevant, there is a discretion in the court whether or not to order disclosure. That is accepted. It is argued by MTV that one of the factors to be taken into account in the exercise of that discretion is the obligation which rest on national courts under Art 5 of the EEC Treaty to enforce Community competition rules contained in Arts 85 and 86 of the Treaty.

[Sir John then goes on to say that is it is common ground that there is such on obligation.]

…

Exactly the same applies to the third issue on the appeal. In order to understand this issue I must refer once more, and I hope for the last time, to the judgment….

‘Counsel on behalf of MTV have submitted that the Confidentiality Club terms agreed as suitable for disclosure to MTVE as defendants’ documents are not appropriate for MTVE’s confidential documents and information. This applies particularly…to details of MTV’s profitability, whether obtained via discovered documents or in statistical terms, and to licensing agreements with other licensors. I agree that these are highly confidentiality matters and appropriate ‘Confidentiality Club’ terms need to be designed.’”

94. Terms were suggested and a form of same approved by the Court.

6. Ipcom GmbH & Co KG v. HTC Europe Co Ltd and ors
[2013] EWHC 52 (Pat)

95. Ipcom affords an example from the patent law field of a case in which access to documents, upon disclosure, was restricted by Floyd J., as he then was, to external counsel. Decided in 2013, it is of interest both because it contains a useful analysis of then applicable authority in England and Wales and, under the heading “Striking the Balance” shows the type of factors that Floyd J. brought to bear in reaching his ultimate conclusions, including a notable willingness to accept the ability of external counsel to put matters from his mind in a way that internal management could not be expected to do. The extracts that follow are from paras.15-21 and 31-32 of the judgment:
“Principles applicable
[15] As Lord Dyson JSC said in Al Rawi v Security Service…[2012] 1 AC 531 at [12]:

‘… trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.’

[16] As Lord Dyson recognised at 64 there was a recognised exception to this rule:

‘Similarly, where the whole object of the proceedings is to protect a commercial interest, full disclosure may not be possible if it would render the proceedings futile. This problem occurs in intellectual property proceedings. It is commonplace to deal with the issue of disclosure by establishing ‘confidentiality rings’ of persons who may see certain confidential material which is withheld from one or more of the parties to the litigation at least in its initial stages. Such claims by their very nature raise special problems which require exceptional solutions. I am not aware of a case in which a court has approved a trial of such a case proceeding in circumstances where one party was denied access to evidence which was being relied on at the trial by the other party.’

[17] The practice in intellectual property cases has been to tailor the confidentiality club or ring to meet the circumstances of the case and the stage which it has reached. In Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 , Buckley LJ described the rationale in this way:

‘If, however, the case were one of so esoterically technical a character that even with the help of his expert advisers the party himself could really form no view of his own upon the matter in question but would be bound to act merely upon advice on the technical aspects, disclosure to him of the facts underlining the advice might serve little or no useful purpose. In such a case a court might well be justified in directing disclosure of allegedly secret material only to expert or professional agents of the party seeking discovery on terms they should not, without further order, pass on any information so obtained to the party himself or anyone else, but should merely advise him in the light of the information so obtained. Even so, if the action were to go to trial, it would seem that sooner or later the party would be bound to learn the facts, unintelligible though they might be to him, unless the very exceptional course were taken of excluding him from part of the hearing. Even where the information is of a kind the significance of which the party would himself be able to understand, it may nevertheless be just to exclude him, at any rate during the interlocutory stages of the action, from knowing it if he is a trade competitor of his opponent.’

[18] From this passage it is clear that the degree to which the party might be able to understand the document is a factor in setting the scope of inspection, as is the stage which an action has reached.
[19] In Roussel Uclaf v Imperial Chemical Industries plc [1990] RPC 45, Aldous J said at first instance:

‘Each case has to be decided on its own facts and the broad principle must be that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The object to be achieved is that the applicant should have as full a degree of disclosure as will be consistent with adequate protection of the secret. In so doing, the court will be careful not to expose a party to any unnecessary risk of its trade secrets leaking to or being used by competitors. What is necessary or unnecessary will depend upon the nature of the secret, the position of the parties and the extent of the disclosure ordered. However, it would be exceptional to prevent a party from access to information which would play a substantial part in the case as such would mean that the party would be unable to hear a substantial part of the case, would be unable to understand the reasons for the advice given to him and, in some cases, the reasons for the judgment. Thus what disclosure is necessary entails not only practical matters arising in the conduct of the case but also the general position that a party should know the case he has to meet, should hear matters given in evidence and understand the reasons for the judgment.’

[20] It is clear from this passage that the role which the document will play in the case is a factor which must be weighed in the balancing exercise in setting the terms of the confidentiality regime at any given point in the case.
[21] The court does not normally operate on the basis that a party will wilfully misuse information disclosed to it. But it is recognised that disclosure of information to a party who is or may become involved in collateral commercial activities may place that party in a difficult position where there was a risk of use or disclosure: see the discussion in Roussel Uclaf supra at page 51. In that case the court took steps to ensure that the individual involved was not involved in corresponding litigation where there was no disclosure process.

…

Striking the balance

[31] In striking the balance I have taken the following into consideration:

i) The material at issue is confidential. However its potential for use to the detriment of HTC and Nokia is not at the high end of the scale represented by secret process cases….Nevertheless, the court should not facilitate the granting of a competitive advantage to IPCom, and accordingly inflict a competitive disadvantage on HTC, Nokia and the interested parties, unless justice requires it to take such a course.
ii) It is not at the moment clear what part if any the documents which have been disclosed by Nokia and HTC will play in the proceedings. The exercise which I foresaw in the judgment I gave on the disclosure application has not yet taken place. The documents have not yet gone even to IPCom’s UK lawyers let alone its external licensing and economics experts. It is entirely possible that they will reject them as not comparable, or alternatively come to the view that they are of remote or background relevance only.

iii) The litigation is still at the interim stage. Nevertheless points of a very broad brush nature have been made in the pleadings about the relevance or lack of it of Nokia’s and HTC’s licences, a matter on which IPCom have the right to respond.

[32] I have come to the conclusion that it would not be right to allow inspection at this stage by Mr Frohwitter or Mr Schoeller, but that it is right for Dr Sedlmaier to be allowed inspection. My reasons are:

i) The case is still at the interim stage. It is still not clear what part if any the documents will play in the case. There is no guarantee it will go to trial, as the negotiations between IPCom and Nokia show. To allow inspection by the key commercial people within IPCom could inflict wholly unnecessary harm on HTC, Nokia and the interested parties.
ii) The fact that the order may affect the interests of third parties is of importance….

iii) The confidential information, once given to Messrs Frohwitter and Schoeller cannot be unlearned by them. Whilst not inevitable, there is a real risk that it will prove of value in licensing IPCom’s portfolio, and they will not in practical reality be able to avoid its use.

iv) Mr Kahlenberg is in a very similar position on the evidence to Messrs Frohwitter and Schoeller. I do not regard the compromise position as significantly different from disclosure to the internal management team.

v) Dr Sedlmaier, on the other hand is an external lawyer bound by a professional code of conduct. I accept that he is, as the evidence shows, extremely close to IPCom, and has been involved in commercial negotiations. Whilst that fact is relied on by HTC, Nokia and the interested parties to make a case for his exclusion, it shows also that, if he is included, the prejudice to IPCom is significantly mitigated. To the extent that he is involved in future negotiations he will have to shut out from his mind anything learned from the confidential documents.

vi) I do not accept that it is necessary in order to do justice, at this stage at least, for the individuals within IPCom’s internal management team to conduct the free-ranging review of the disclosure documents which Mr Boon refers to in his evidence.”

7. The United Kingdom’s Competition Appeal Tribunal Rules 2015
(S.I. No. 1648 of 2015)

96. Of interest when it comes to establishing ‘confidentiality rings’ in the competition law context are the above-cited Rules from the United Kingdom, in the “Case Management” segment of which, r.19 (“Directions”) provides as follows:
“19.–(1) The Tribunal may at any time, on the request of a party or of its own initiative, at a case management conference, pre-hearing review or otherwise, give such directions as are provided for in paragraph (2) or such other directions as it thinks fit to secure that the proceedings are dealt with justly and at proportionate cost.
(2) The Tribunal may give directions –

…(k) for the creation of a confidentiality ring”.
97. So there, in secondary legislation, one finds recognition of the importance of confidentiality rings, and here the need to establish such a ring finds justification, inter alia, in fact that, when it comes to Roadstone, its biggest and most vigorous competitor is Kilsaran (and vice versa), and neither wishes for its confidential information, e.g. in terms of customers, terms and conditions of supply, pricing, etc., to find its way into the hands of Kilsaran or indeed into the hands of Goode Concrete, which is likewise viewed by each of them as a competitor.

8. Bellamy & Child’s European Community Law of Competition (6th ed.)
98. Finally, the court notes the following observations of the learned editors of Bellamy on Child under the heading “Limitations on disclosure”, at 1475:
“[A]pplications for disclosure amounting to ‘fishing expeditions’ will not be ordered. Disclosure in cases involving Articles 81 and 82 potentially involves a very wide range of documents. In MTV Europe v. BMG Records [(UK) Ltd (No. 2), judgment of 10 March 1998], the Court of Appeal upheld a decision that a very extensive request for discovery by the defendants was unduly burdensome and that the plaintiff should be permitted to serve schedules of figures rather than the underlying documents which evidenced those figures.
…

[A]lthough there is no rule protecting business secrets from disclosure, the commercial confidentiality of the information may influence the court in exercising its discretion as to the scope of disclosure to be ordered. If disclosure is ordered, the Court may restrict inspection of the documents to a confidentiality ring of external legal advisors, experts and, where necessary, named individuals in the parties.”

(vi) Jurisdiction and rationale for confidentiality rings.
99. What the foregoing case-law as to confidentiality and confidentiality rings demonstrates, inter alia, is that there is an inherent jurisdiction on the part of the court to order a confidentiality ring, should it consider that to be appropriate. One important factor for the court to consider in this regard, so at least it seems to this Court, is that these are competition law proceedings and in such proceedings confidentiality rings are increasingly becoming standard practice in the neighbouring jurisdiction because of the increased costs of discovery and the manner in which discovery in such proceedings is prone to being used as a commercial weapon. This Court cannot encourage a situation where defendants say to themselves: ‘I’m going to have to let this trial run on, because to make a concession which could potentially end this litigation (by showing that there is nothing untoward in my costing/prices), I could put my entire business at risk’. That would yield the unfair and undesirable situation in which a plaintiff would walk away from such proceedings with a legal loss but a commercial win (because it would have gained access to what is most valuable, thereby acquiring a competitive advantage that it would never otherwise have obtained). This reality is reflected in the Damages Directive which, though not applicable in the context of the within proceedings, is nonetheless instructive, and recital 18 of which, mentioned previously above, providing, it will be recalled, as follows:
“While relevant evidence containing business secrets or otherwise confidential information should, in principle, be available in actions for damages, such confidential information needs to be protected appropriately. National courts should therefore have at their disposal a range of measures to protect such confidential information from being disclosed during the proceedings. Those measures could include the possibility of redacting sensitive passages in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form. Measures protecting business secrets and other confidential information should, nevertheless, not impede the exercise of the right to compensation.”

X. Confidentiality and Commercial Sensitivity
(i) Certain Issues Presenting.

100. Among the motion papers concerning Goode Concrete’s motion seeking discovery from the first and second-named defendants is an affidavit of Mr McMahon, a solicitor acting for Goode Concrete, which exhibits an abundance of correspondence between the parties, too long to quote in the within judgment, concerning the discovery sought by Goode Concrete and the first and second-named defendant’s concerns as to the breadth of discovery sought, the issue of commercial sensitivity, and the perceived desirability that any disclosure should be restricted to Goode Concrete’s legal advisors and identified experts (with any disclosure to which the first and second-named defendants agree being agreed to on the basis that such a restriction will pertain). So, for example, the first and second-named defendants make clear that the information to be discovered includes, inter alia, detail as to costs, average variable costs, prices agreed with individual customers, and the margins of Roadstone and its customers – details the disclosure of which would (and the court accepts that it could) cause significant damage to the relationship between the first and second-named defendants and their customers. Just to give one example, if Customer A were ever to see that Customer B was getting a better commercial deal than Customer A, that would give rise to friction that should not be visited upon the first and second-named defendants when no wrongdoing has been established against them thus far. The documentation to be discovered would also, as was touched upon previously above, include personal information in relation to employees, including wage details and like matters.
101. Mr Lenny, a solicitor acting for the first and second-named defendants has sworn an affidavit that touches helpfully and at some length on the confidentiality and commercial sensitivity of the documentation of which discovery is sought, averring, inter alia, as follows:

“42. I beg to refer to paragraph 13 of Mr McMahon’s affidavit, where he states that the First and Second Defendants have argued that any documents discovered should be disclosed only to a confidentiality ring, made up of lawyers and experts. Mr McMahon states that the Plaintiff rejects this argument on the basis that the information sought is historic and ‘cannot be considered to be competitively sensitive’. No attempt is made, however, to engage with the detailed explanations provided by the First and Second Defendants in the correspondence exchanged in relation to the commercial sensitivity of the documents requested. For the reasons set out below, I say and believe that the information sought is not ‘historic’ and continues to be highly commercially sensitive.
43. At paragraph 13 of his affidavit, Mr McMahon further contends that it is essential that personnel from the Plaintiff are able to review the discovered material so that they can properly instruct their legal team. No explanation is provided as to why, if the documents are furnished to the expert witnesses instructed by the Plaintiff, they would not be in a position to review them and provide any instructions required to the Plaintiff’s legal team.

44. As set out in the correspondence exchanged in relation to the Plaintiff’s request for voluntary discovery, a considerable portion of the documentation sought is highly commercially sensitive and its disclosure would significantly harm the legitimate business interests of the First and Second Defendants.

45. The information in question includes information in relation to the AVC of the Second Defendant, the margins earned by the First and Second Defendant on individual projects, and the discounts and rebates agreed by the First and Second Defendants with individual customers. The disclosure of this information to competitors of the Second Defendant would give them an unfair advantage over the Second Defendant. In addition, the disclosure of this information to customers of the Second Defendant would potentially cause significant damage to the relationship the Second Defendant has built up with its customers. The information the Plaintiff is seeking would also include highly sensitive personal data relating to the Defendants’ employees, such as wage costs.

46. Third party confidentiality issues also arise, insofar as the documentation requested would disclose the price at which the First and Second Defendants supplies concrete products to identified third parties. The contractors to whom concrete products were supplied will themselves have tendered for the particular project in question, and will almost certainly have earned a margin on the products supplied to them by the Second Defendant in the projects to which the tenders relate. If information is disclosed in relation to the price at which the Second Defendant supplied concrete products, therefore, this will effectively result in a situation where the margins earned by customers of the First and Second Defendant are also disclosed.

47. It is the First and Second Defendants’ position, therefore, that the disclosure of any commercially sensitive documents discovered by the Second Defendant in the context of any of these proceedings should be restricted to the Plaintiff’s legal advisers, and identified experts retained by the Plaintiff for the purpose of these proceedings, and that those parties should not be permitted to disclose the documents to any other party or parties, including representatives of the Plaintiff. The First and Second Defendants further require that those persons to whom the documents are to be disclosed execute an agreed form of undertaking and are not permitted to disclose the documents to any other party or parties, including any representatives of the Plaintiff.

48. Having regard to the Plaintiff’s request for discovery, the categories in respect of which the First and Second Defendants intend to seek an order for limited disclosure in these terms, in the event of discovery being ordered, are the following: categories 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.

49. In relation to categories 1-4, the information sought in relation to the cement and ready-mix concrete markets, the market share of the First and Second Defendants, and the competition faced by the First and Second Defendants in these markets, is commercially sensitive. I say and believe and am advised that the disclosure of this information could cause significant damage to the Second Defendant’s legitimate business interests.

50. Category 5 relates to the Second Defendant’s AVC. In order to determine the Second Defendant’s AVC at a particular point in time, it would be necessary to review the Second Defendant’s books and records. These documents contain information in relation to the Second Defendant’s accounts, details of the margin earned by the Second Defendant on particular projects, and details of the specific arrangements the Second Defendant has with each of its customers for discounts and rebates. As such, these documents are highly commercially sensitive and their disclosure to competitors and customers of the Second Defendant would cause significant damage to the Second Defendant’s business and would be contrary to competition law. For this and other reasons, it is the First and Second Defendants’ position that the request for discovery of these documents is oppressive, and that the discovery of these documents is not necessary for the fair disposal of the proceedings. In the event, however, that discovery of any of the documents sought in category 5 is ordered, it is the First and Second Defendants’ position that these documents should only be disclosed subject to the terms set out above by reason of the manifest commercial sensitivity of the documents.

51. In respect of category 6, which relates to the price at which the Defendant tendered, offered to supply and supplied ready-mix concrete products, the commercial sensitivity of the documentation requested is, again, manifest. The information sought in relation to the prices at which concrete products were offered or supplied by the Second Defendant to individual customers is commercially sensitive and its disclosure would cause the First and Second Defendants significant prejudice. This information also gives rise to third party confidentiality concerns, given that its disclosure would effectively disclose the margin earned by customers of the Second Defendant on concrete products supplied by the second Defendant in respect of the projects to which the tenders relate. It is the First and Second Defendants’ position, therefore, that any documents discovered in response to this category should be subject to the restrictions identified above.

52. In relation to categories 7 and 8, the information sought by the Plaintiff is also manifestly commercially sensitive given the nature of the request made.

53. Similar concerns also arise in relation to categories 10 and 11 which will involve providing commercially sensitive information concerning the pricing of supply of cement from the First Defendant to both the Second Defendant and the Third Defendant. The disclosure of such information to competitors in the marketplace would be extremely damaging to the First Defendant and would have a detrimental impact on competition in the marketplace.

54. The information requested in relation to category 12 is also manifestly commercially sensitive as it involves communications with customers of the Second Defendant and the disclosure of such commercially sensitive information would damage the Second Defendant’s relationship with those customers.

55. It is not the case, as suggested…by the Plaintiff, that the information is not commercially sensitive because it is ‘historic’. The construction sector in Ireland is a geographically small marketplace and, as such, the impact of the release of any commercially sensitive information can be expected to have a more profound impact than in other markets. Ireland has been characterised as a relatively low (or no) inflation economy since the collapse of the construction market. As a result, costs and prices from the period in respect of which discovery is sought remain relevant to today’s market place.

56. Suppliers negotiating prices with the Second Defendant would be given a commercial advantage by knowing what prices other suppliers charge, which in turn may damage the Second Defendant’s commercial interest. Similarly, on the sales side, competitors and customers of the Second Defendant would be given a commercial advantage, both directly and indirectly, if they discovered the prices charged by the Second Defendant to individual customers. Competitors could use the sales price and volume information discovered to determine the Second Defendant’s pricing strategy across different markets – using variable cost information, they can then reassess their own pricing points.

57. Discovery will also disclose the material flows within the Second Defendant which, again, are likely to be still in place. Details of haulage arrangements and haulage rates etc. again have not altered materially in the intervening years.

58. Essentially, the disclosure of the documents requested would allow competitors to better understand the Second Defendant’s commercial strategy, pricing structure, and cost base. I am instructed by the Second Defendant that this would be very damaging.”

102. In his replying affidavit, Mr McMahon does not deal with the point that Mr Lenny makes that it should be sufficient for an expert to review the document of which discovery is sought and report upon same to Goode Concrete’s solicitors, with the solicitors also being able to access the documents, but without any necessity for Goode Concrete itself to have access to the underlying documents. Nor does Mr Peter Goode, in his affidavit evidence, engage with Mr Lenny’s point except to say that he has “no difficulty in providing whatever undertaking the Court may require…to ensure that information is not passed to third parties or used for a purpose outside the proceedings.” Unfortunately, for the reasons set out hereafter, no reliance can properly be placed by the court, in the context of the within proceedings, on any such undertakings or, as a consequence of the facts described in the next section, on the implied undertaking on discovery as to the use to which discovered information may be put.

(ii) Ongoing Business.
103. Mr Goode avers in his affidavit evidence that “[T]he Plaintiff would be at a serious disadvantage if personnel from Goode Concrete, including myself, were not able to review information produced on discovery.” Likewise, Mr McMahon, in his affidavit evidence, avers as follows:
“[T]he Plaintiff does not accept that the documents to be discovered should be subject to a confidentiality ring. Not only is the information sought historic but the fact is that Goode Concrete is now out of the market so it is difficult to see how, even if the information were current, it could have some kind of impact in the marketplace….The Plaintiff and its legal team would be at a very considerable disadvantage if personnel of the Plaintiff, in particular its MD, Peter Goode, are not permitted to review the material and provide instructions in respect of same.”
104. Unanswered in the foregoing is who these unidentified personnel are. Unclear in the foregoing is whether Goode Concrete has ceased to trade, at least in some guise. And unacknowledged in the foregoing is the fact that even if there has been a cessation of trade, Mr Peter Goode (and wider members of the Goode family experienced in the concrete sector) are at liberty to re-enter the relevant market at any stage or to act as consultants to persons who are participating in same. Clearly in that context it would be advantageous to have access to the costs, prices, margins, etc. of Roadstone. And there is, unfortunately, some real doubt as to the bona fides of Goode Concrete when it comes to the submission at hearing (a submission made on instructions; no criticism is made by the court of any of the lawyers for Goode Concrete) that that company has exited the market altogether. In this respect, in an affidavit filed with the court in the course of the hearing of the within applications, Mr Lenny avers as follows:
“I make this affidavit in order to place certain information before this Honourable Court in response to the submission, made repeatedly by counsel for the Plaintiff that there is no concern in relation to the disclosure of confidential and highly sensitive documentation to the Plaintiff because ‘Goode Concrete is out of the market’….The Plaintiff contends that this information could not be of any use to Mr Peter Goode, the principal of the Plaintiff, because he is ‘out of the market’. [The court notes the conflation of Mr Peter Goode with Goode Concrete in the foregoing.]. Counsel for the Plaintiff further stated…that:

‘Goode Concrete is no longer a competitor, it’s out of business and has been since early 2011. There is no other competitor involved in the proceedings.’

…It has been contended by counsel for the Plaintiff repeatedly that, because the Plaintiff is not a competitor of the Defendants, the only concern which can arise in relation to confidentiality relates to the potential of disclosure of this information to the marketplace by Mr Goode or the disclosure of this information at the hearing of this action. It has been suggested that the potential disclosure of the information on the marketplace can be addressed by the provision of a suitable undertaking by Mr Goode….
I say and believe that the assertion that Goode Concrete is no longer a competitor of the Second Defendant is incorrect. In the course of the hearing, I carried out a Google search against ‘Goode Concrete’. This search generated a number of results, one of which was a link to the website ‘GoodeConcreteGroup.ie’….

On clicking this link I was directed to the website of Eircem Limited, ‘Independent Cement Suppliers’. However, the logo on the website is that of ‘Goode Concrete Products’ and the homepage of the website includes a picture of a fleet of ‘Goode Concrete’ trucks. I beg to refer to a printout of the contents of the website….Under the sub-heading ‘About Goode Concrete’, the website states that:

‘Goode Concrete is a long established firm which commenced trading over 50 years ago.
With bases in Dublin and Kildare we are ideally suited to service the needs of the construction industry throughout Leinster for readymix concrete and nationwide for cement and bagged aggregates.

Having made a multimillion euro investment in the very latest in technology and plant, we are in a position to offer the ultimate in service and quality….

I was most surprised by the contents of this website, given the averments that Mr McMahon in his second sworn [affidavit] in support of this motion…which states at paragraph 15: ‘Not only is information sought historic but the fact is that Goode Concrete is now out of the market so it is difficult to see how, even if the information were current, it could have some kind of impact on the marketplace.’

…In order to identify the person or persons behind Eircem Limited, I caused a search to be carried out in the Companies Registration Office (CRO). I beg to refer to a printout of the information returned by this CRO search….The CRO printout records that Eircem Limited was incorporated on 27th March 2012 and its principal activity is described as ‘other mining and quarrying’. Peter Goode is a director of the company and Tom Goode is the company secretary. Tom Goode was also a director of the company until 1st July 2015, when he resigned as director.”
105. No convincing explanation has been offered for the foregoing. It appears that Eircem Limited, a company of which Mr Peter Goode is a director, is presently out in the market using the ‘Goode Concrete’ name and trading off the experience and perhaps even the goodwill attaching to same. At least two conclusions fall to be drawn from the foregoing, neither of them advantageous to Goode Concrete:
(1) the fact that Eircem Limited is out in the market trading off Goode Concrete’s name and experience, and perhaps even the goodwill arising from same, points to the legitimacy and reasonableness of the concerns raised by the defendants as to the extent and substance of the documentation which Goode Concrete has sought by way of discovery, and to the potential for same to be disclosed to, and used by, the director of a commercial rival, and perhaps even that rival itself;
(2) that Mr Goode would be satisfied that the lawyers for Goode Concrete (of whom, again, the court makes no criticism) were not placed in the position that the more fulsome picture of matters now known to the court could be brought to its attention by them, and had instead to be drawn to the court’s attention by the lawyers acting for the first and second-named defendants, has the unhappy result for Goode Concrete that the court is driven of necessity to the regretful conclusion that it does not consider Mr Peter Goode to be an individual on whom the court could, in the context of the within proceedings, reasonably rely when it comes to undertakings as to the use to be put to that documentation of which discovery is now sought by Goode Concrete.

106. The following related points might also be made:
(3) the primary undertaking in these matters is always an undertaking by the plaintiff, but here, of course, the plaintiff in this case is an insolvent shell company, so there is little or no faith to be placed in any commitment that might be made on its behalf;
(4) insofar as an affidavit from Mr Goode is concerned, at least two further difficulties arise additional to those touched upon above: (i) it is of no practical relevance because the first and second-named defendants have no way of policing whether or not that information would be used for commercial advantage; (ii) there is nothing to stop Mr Goode at a future stage applying to be released from his undertaking for some collateral purpose, e.g., pursuit of a complaint to the CCPC about some unrelated matter, regardless of the lack of merit associated with such complaint;

(5) looking at the material falling to be provided, pursuant to this judgment, by way of discovery to Goode Concrete and looking to as to what has to be established at the trial of the within proceedings, the court does not see that Mr Goode will require access to the documentation now to be discovered to Goode Concrete, in order that he might, as has been suggested in submission, be able cogently to explain his case to an expert. Goode Concrete’s case is, in truth, a very simple case to explain. It contends that the defendants colluded to reduce prices to a below-cost level in an anticompetitive fashion so as to drive Goode Concrete from the market. What the experts will have to opine upon is the issue of whether the impugned costs were lowered to a below-cost level. That is something of a ‘bread and butter’ job for the type of expert who would be called to give testimony in this case, not something that would typically require the involvement of an aggrieved plaintiff;

(6) were it the case that some issue did arise which required greater wider disclosure, there would be nothing to prevent the parties from returning to court and saying ‘The scope of the confidentiality ring makes it difficult for us to obtain the instructions which we require’. The court could then expand the confidentiality ring if and as appropriate.

(iii) Conclusion.
107. Having regard to (i) the afore-described facts and factors, (ii) the law as to what are generally described as ‘confidentiality rings’, as elsewhere considered in this judgment, and (iii) the fact that the court needs generally to be careful to ensure that litigation is not used, for example, (a) to apply commercial or economic pressure on a defendant, and/or (b) to bring pressure to bear on a defendant to settle a claim that it might not otherwise settle, for fear that commercial information is going to have to be released as part of the price of the defending proceedings, the court will order that:
(I) it is not necessary for Mr. Peter Goode, as distinct from independent expert advisors engaged by Goode Concrete, to see any material that is ordered to be discovered,
(II) such discovery as is to be ordered by the court pursuant to this judgment shall be the subject of a confidentiality ring comprising the legal advisors to Goode Concrete and such independent expert advisors as may be engaged by Goode Concrete in the pursuit and advancement of the within proceedings, subject to liberty to apply on the part of any or all of the defendants in the event that the operation of the confidentiality ring and/or the addition of any particular independent expert advisor/s to such ring is considered to present a difficulty in terms of the very confidentiality that such ring is being established to protect,

(III) all the legal advisors to Goode Concrete shall undertake to the court (i) not to disclose to any party outside the confidentiality ring the substance or tenor of any such discovered documentation aforesaid, and (ii) to respect the spirit as well as the letter of the order concerning the establishment of the confidentiality ring, and

(IV) the solicitors to Goode Concrete shall undertake that any expert to be joined to the confidentiality ring shall only be so joined where s/he has previously agreed in writing with those solicitors to treat with all such discovered documents aforesaid on like terms of confidentiality to which those solicitors are subject.

XI. The Categories of Discovery Sought against
CRH plc and Roadstone Wood Limited

(i) Temporal Scope.

108. Before turning to the substance of the individual categories of discovery, all of which are notably broad, the court pauses to address an issue as to temporal scope which generally arises.
109. The conduct that is complained of in the statement of claim is between November, 2007 and the date when Goode Concrete was allegedly forced to cease trading, being February, 2011. Yet when looks to the various categories of discovery, discovery for the following timeframes is sought:

Category 1: 30.06.2006-30.06.2011
Category 2: Same
Category 3: Same
Category 4: Same
Category 5: 01.01.2007-30.06.2013
Category 6: Same
Category 7: 01.01.2007-31.12.2011
Category 8: No timeframe identified
Category 9: 01.01.2006-31.12.2011
Category 10: Same
Category 11: Same
Category 12: No timeframe identified
110. There has been some attempt by the first and second-named defendants to meet Goode Concrete’s desire for documentation that goes beyond the time constraints of the period November 2007-February 2011. But insofar as a recoupment argument is made, that only relates to Category 6 (in relation to price), it cannot be used as a springboard for other categories, and even in Category 6 the court does not see that recoupment is relevant: the pricing at the time was either below-cost/predatory or not. Viewed so, the court considers that the period from 01.11.2007-28.02.2011 is an adequate, proportionate and correct timeframe for all of the categories of discovery.

(ii) Category 1.
I. Documentation Sought.

111. Category 1, as sought, comprises the following documentation:
“All documents created between 30 June 2006 and 30 June 2011 relating to the market to which cement belongs, the products with which cement competes and the competition which Irish Cement Limited faces, including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.”

II. Observations and Conclusion.
112. As will be seen later below, a like category of blanket discovery has been sought of Kilsaran in the separate but clearly related application for discovery brought by Goode Concrete against Kilsaran. For the reasons (mutatis mutandis) identified in respect of the Category 1 and 2 documentation sought of Kilsaran, this category of discovery is refused. In this regard too, the court recalls the observation of Murray J. in Framus, at 43, that:
“In certain circumstances, the court may grant discovery on a more limited basis than that sought where it considers it appropriate to do so. On the other hand, it is not for the court to re-draft an applicant’s motion where it in effect amounts to a form of blanket discovery.”

(iii) Category 2.
I. Documentation Sought.

113. Category 2, as sought, comprises the following documentation
“All documents created between 30 June 2006 and 30 June 2011 relating to the market share and/or competitive position of Irish Cement and/or competitors in the cement sector, including but not limited to all documents containing market shares of Irish Cement and/or competitors in the cement sector and further including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.”

II. Observations.
114. A number of points arise concerning this category:
(1) it is drafted in the same blanket terms as Category 1 and is subject to similar criticism to that made by the court in this regard in respect of Category 1.
(2) the court does not see that discovery of any of the documentation in this category is necessary because the advised purpose of seeking these documents is to establish dominance by CRH in the cement market in the State. But Mr. McMahon avers in his affidavit evidence that the fact that CRH “holds and has, at all material times, held a dominant position in the Irish cement market” is “I am advised by the Plaintiff…well known”. The court would but note that if that dominance is “well-known”, it can be proved by expert testimony; indeed, this would be typical.

(3) dominance in the cement market is in any event irrelevant because the abuse that is alleged is in the concrete market, specifically below cost selling of concrete in the Dublin ready-mix market. It will be recalled in this regard that para. 23 of the statement of claim states, inter alia, that “By engaging, through Roadstone, in below cost selling of concrete and concrete products in the Dublin market, CRH is abusing its dominant position in the cement market”. Recalling in this regard the decision in Tetra Pak, considered above, the court notes no special circumstances are pleaded or identified in this regard.

(4) to the extent that this category of discovery is grounded on para. 24 of the statement of claim, it is worth recalling the text of that claim, viz:

“The agreements and/or arrangements between CRH and Roadstone and between CRH and Kilsaran for the supply and purchase of cement are unknown to the plaintiff. Such agreements and/or arrangements may also give rise to breaches of competition law. The plaintiff reserves the right to provide particulars of such breaches following discovery having been made by the defendants.”

As touched upon previously above, this is, with respect, a baseless plea. Having claimed that the alleged abuse is happening in a different market to where the dominance allegedly arises, Goode Concrete then pleads that it does not know what arrangements exist between the first and second-named or third-named defendants for the supply and purchase of cement, but that they “may also give rise to breaches of competition law”. That is entirely speculative, it does not in truth involve any allegation, and it yields in the discovery context what is commonly referred to as ‘fishing’.

III. Conclusion.
115. For the reasons aforesaid, discovery of Category 2 is refused.

(iv) Categories 3 and 4.
I. Documentation Sought.

116. Category 3 comprises the following documentation:
“All documents created between 30 June 2006 and 30 June 2011 relating to the market to which the supply of ready-mix concrete in the greater Dublin area belongs, the products with which ready-mix concrete competes and the competition which the second defendant faces including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.”
117. Category 4 comprises the following documentation:
“All documents created between 30 June 2006 and 30 June 2011 relating to the market share and/or competitive position of competitors, including but not limited to the position of the Plaintiff, the Second Defendant and the Third Defendant in the supply of ready-mix concrete in the Greater Dublin area.”

II. Observations and Conclusion.
118. As will be seen later below, like categories of discovery have been sought of Kilsaran in the separate but clearly related application for discovery brought by Goode Concrete against same. For the reasons (mutatis mutandis) identified in respect of the Category 3 and 4 documentation sought of Kilsaran, discovery of each of Category 3 and 4 is refused.

(v) Category 5.
I. Documentation Sought.

119. Category 5, as sought, comprises the following documentation:
“In respect of each instance of supply by the Second Defendant, in the Greater Dublin area, of ready-mix concrete, from 1 January 2007 to 30 June 2013, in respect of the jobs/tenders listed in Schedule 1 of the Statement of Claim and jobs/tenders involving supply above 1,500 cubic metres of ready-mix concrete, all documents evidencing the costs of production and supply, including all fixed and variable costs. Without prejudice to the generality of the foregoing, the requested documents include:

All documents provided by the First and/or Second Defendant to Dr Francis O’Toole for purposes of presentation of his affidavit dated 3 December 2010;
All documents created by Dr Francis O’Toole in relation to the analysis carried out by him as described in his affidavit dated 2 December 2010;

All documents provided by the First and/or Second Defendant to Dr Pat McLoughlin for purposes of the preparation of his affidavit dated 12 January 2011; and

All documents created by Dr Pat McLoughlin in relation to the analysis carried out by him as described in his affidavit dated 12 January 2011.”

II. Observations.
120. In formulating this category, Goode Concrete, as well as extending the temporal period in respect of which documentation is sought, also goes well beyond the specific contracts that it previously assured the court that it would be targeting. So in addition to the contracts in Schedule 1, it is looking for all contracts over a 5½ (five and one-half) year period, where the volume is over 1,500 cubic meters of ready-mix concrete. It is worth recalling too the entirely speculative nature of the claim on which the application for discovery is grounded, being a claim in effect that ‘We tendered for a number of contracts. We only won some of those tenders. We think that the successful bids were below-cost bids because they would have been below-cost bids had we made them.’ (And that allegation, such as it is, goes nowhere from a competition law perspective, unless some form of dominance can be established).

III. Conclusion.
121. Being grounded on what is an inherently speculative claim, there is a strong case for saying that Goode Concrete should not get discovery of Category 5 at all. However, on balance, the court considers that the most appropriate way to proceed, having regard to the pleadings and the requirements of relevance, necessity and proportionality, is to order discovery of Category 5 but to confine it (i) to the AVC for the specific contracts previously identified, the attempt to extend matters into contracts where the volume is above 1,500 cubic meters being what is commonly described as a ‘fishing’ exercise, and (ii) to the timeframe (01.11.2007-28.02.2011) identified by the court previously above as being generally appropriate.

(vi) Category 6.
I. Documentation Sought.

122. Category 6, as sought, comprises the following documentation:
“In respect of each instance of tender and/or supply by the Second Defendant, in the Greater Dublin area, of ready-mix concrete, from 1 January 2007 to 30 June 2013, in respect of the jobs/tenders listed in Schedule 1 of the Statement of Claim and jobs/tenders involving supply above 1,500 cubic metres of ready-mix concrete, all documents evidencing the prices at which the Second Defendant tendered, offered to supply and supplied ready-mix concrete, such documents to include those which indicate all tenders in which the Second Defendant participated and the outcome of such tenders.”

II. Observations.
123. Again, when it comes to this category of documentation, Goode Concrete is looking for discovery over a 5½ (five and one-half) year period, extending not just to the jobs/tenders listed in Schedule 1 but to all jobs/tenders involving more than 1,500 cubic metres of ready-mix concrete. That is entirely disproportionate. The first and second-named defendants have offered a schedule of the prices that they tendered for in respect of the contracts that are listed in the schedule to the Statement of Claim. That, it seems to the court, is a proportionate approach that is consistent with the MTV decision.

III. Conclusion.
124. The court will order discovery of the documentation as offered by the first and second-named defendants but for the timeframe identified by the court previously above as being generally appropriate (01.11.2007-28.02.2011).

(vii) Category 7.
I. Documentation Sought.

125. Category 7, as sought, comprises the following documentation:
“(a) All documents evidencing any communications between the First or Second Defendant (or any person or entity relating to the First or Second Defendant (or any person or entity related to the First or Second Defendant, including employees, subsidiaries) and the Third Defendant (or any person or entity relating to the First or Second defendant, including employees, subsidiaries) relating to the supply (and including documents relating to prices, proposed prices, bids and/or tenders) of ready-mix concrete in the Dublin area between 1 January 2007 and 31 December 2011, including, without prejudice to the generality of the foregoing, all correspondence, emails, memoranda/notes of conversations, minutes and recordings.
AND
(b) All documents evidencing any communications between the Second Defendant and any competitor relating to the supply (and including documents relating to prices, proposed prices, bids and/or tenders) of ready-mix concrete in the Dublin area between 1 January 2007 and 31 December 2011, including, without prejudice to the generality of the foregoing, all correspondence, emails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, details of phone calls.”

II. Observations.
126. As can be seen, Category 7 has two parts to it. It is essentially dealing with communications in relation to the sale of ready-mix concrete. Item (a) looks for communications between the first/second and third-named defendants, though it is notably broad in the manner in which it is formulated. Item (b) extends matters still further than (a) because it seeks communications not just with the third-named defendant, but between the second-named defendant “and any competitor” relating to the same matters and during the same stated period. So Item (b) is not limited to any particular tenders, any particular contracts, or any particular customers. As formulated, Category 7 is a blanket category of discovery or what is commonly called ‘fishing’. The first and second-named defendants have made an offer of documentation in respect of Category 7. However, this has not been accepted and the category remains entirely in dispute. As will be seen later below, a like category of discovery has been sought of Kilsaran in the separate but clearly related application for discovery brought by Goode Concrete against same.

III. Conclusion.
127. For the reasons (mutatis mutandis) identified in respect of the Category 7 documentation sought of Kilsaran, this category of discovery is refused.

(viii) Category 8.
I. Documentation Sought.

128. Category 8, as sought, comprises the following documentation:
“All documents evidencing the relationship between, on the one hand, the First Defendant or any person or entity related to the First Defendant (including employees, subsidiaries), and, on the other, the Third Defendant or any person or entity related to the Third Defendant (including employees, subsidiaries), including, without prejudice to the generality of the foregoing, all documents relating to payments or transfers of money or other assets by the First Defendant or any person or entity related to the First Defendant to the Third Defendant or any person or entity related to the Third Defendant; any guarantees, letters of comfort or letters of support provided by or on behalf of the First Defendant or any person or entity related to the First Defendant to, or for the benefit of, the Third Defendant or any person or entity related to the Third Defendant; and all correspondence, emails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, details of phone calls.”

II. Observations.
129. Again, the court is presented with a very broad category of documentation sought and with no temporal limitation. With regard to the text “All documents…Third Defendant (including employees, subsidiaries)”, this would include, for example, purchases from Kilsaran, if the first and second-named defendants ran short of something and needed to make an ad hoc purchase. As to the term “relationship”, this is a vague and undefined term. The “close links” referred to at para. 5 of the statement of claim is bald assertion – and the concept of “close links” presents the issues identified in the context of the Category 1 and 2 documentation sought of Kilsaran (as considered later below).

III. Decisive Influence.
130. Notably, the first and second-named defendants have made an offer of documentation in respect of Category 7. However, this has not been accepted and the category remains entirely in dispute. That offer comprises: all documents comprising or relating to any direct or indirect ownership by the first defendant of the third defendant, and any documents relating to any direct or indirect control by the first-named defendant of the board of directors of the third defendant, or the decisions of that board. However, Goode Concrete has indicated that what it is concerned about in this regard is “decisive influence”. But this, with respect, is a misplaced usage of that concept. The term “decisive influence” is deployed in case-law in the context of being able to determine whether or not a subsidiary is truly part of the one undertaking as the parent; it is not to be used as saying that some other undertaking, which is not owned by the parent, could be part of the one undertaking, simply because the other undertaking influences decisive influence. A brief survey of some of the leading English-language textbooks on competition law shows that this is so. Thus the learned editors of Bellamy & Child’s European Union Law of Competition (7th ed.) observe as follows, under the heading “Treatment of economically linked entities”, at paras. 2.024 (“Group of companies as a single undertaking”) and 2.026 (“Attribution to a parent company of the conduct of wholly owned subsidiaries”):
“2.024…The focus of EU law on economic rather than legal identity means that a corporate group made up of a number of individual legal bodies can be treated as a single undertaking for the purposes of competition law. Undertakings have been defined by the General Court as ‘economic units which consist of a unitary organisation of personal, tangible and intangible elements, which pursue a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision’. For the purpose of applying the rules on competition, the formal separation between two parties resulting from their separate legal personality is not conclusive; the decisive test is the unity of their conduct on the market. This is relevant to five issues in particular:

(a) the application of article 101(1) to agreements between companies in the same group;
(b) whether the infringing conduct of a subsidiary company can be imputed to a parent company, usually in the context of imposing a fine;

(c) the amount of turnover generated by the infringing undertaking which is used to calculate a fine;

(d) which associated undertakings should be taken into account when calculating the turnover of an undertaking for the purpose of applying a turnover threshold…and

(e) whether a national court has jurisdiction to hear an action for damages against companies in the same group….

2.026…The parent company of the group can be held responsible for the infringing conduct committed by another company within the undertaking where the parent controls, that is exercises ‘decisive influence’ over the subsidiary.”
131. But it has to be a subsidiary first.
132. The learned authors of Whish and Bailey’s Competition Law (8th ed), during their consideration of Art. 101(1) TFEU observe as follows, at 97, under the heading “The test of control”:

“The test is whether the parent company can, and does in fact, exercise decisive influence over the other, with the result that the latter does not enjoy ‘real autonomy’ in determining its commercial policy on the market. For these purposes, it is necessary to examine all the relevant factors relating to the economic, organisation and legal links which tie the subsidiary [so it has to be a subsidiary] to the parent company which, will vary from case to case. These factors include the shareholding that a parent company has in its subsidiary, the composition of the board of directors, the extent to which the parent influences the policy of or issues instructions to the subsidiary and similar matters.”
133. Lastly in this regard, the court notes the following observations made in Faull and Nikpay’s The EU Law of Competition (3rd ed.) in the course of the learned authors’ consideration of Article 101(1) TFEU, at paras. 3.49-3.51:
“3.49 For the purposes of Article 101(1), at least two ‘undertakings’ must be party to an agreement. However, two or more legally separate entities may be treated as a single undertaking under the competition rules if their relationship justifies regarding them as a single economic unit….
3.50 In Centrafarm [Case 15/74], the Court of Justice held that an agreement between undertakings belonging to the same group and having the status of parent and subsidiary was not caught by Article 101(1) ‘if the undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market, and if the agreements or practices are concerned merely with the internal allocation of tasks as between the undertakings. Similarly, in Viho [Case C-73/95] the Court of Justice held that Article 101(1) could not apply where a subsidiary did not freely determine its conduct on the market, but instead carried out the instructions given to it directly or indirectly by the parent company.

3.51 This logic applies to the question of the liability of parent companies for the activities of their subsidiaries. In Akzo [Case C-97/08], the Court of Justice held that ‘the conduct of a subsidiary may be imputed to the parent company, in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company.’”

134. Bringing the foregoing to bear on the facts at hand, the law in relation to ‘decisive influence’ clearly has an application in relation to whether or not CRH and Irish Cement are to be regarded as part of the one undertaking and as to whether CRH and Roadstone are to be regarded as part of the one undertaking. But unless there is a shareholding by CRH or Roadstone in Kilsaran, it has no relevance, at all…and no evidence has been put before the Court of such a shareholding.
135. Continuing, the learned authors of Faull and Nikpay observe as follows, again at para. 3.51:

“Put differently, a subsidiary cannot be said to be acting independently where the parent company actually exercises decisive influence over its commercial policy. In such a case, ‘the parent company and its subsidiary form a single economic unit and, therefore, form a single undertaking’. In that regard, it is irrelevant whether the parent company itself is engaged in an economic activity of its own, or whether it is a mere holding company.”
136. That again is a point of relevance to the within proceedings: ownership is the relevant factor.

IV. Conclusion.
137. The category of documentation sought is vast, not least because CRH includes Irish Cement and Kilsaran has made no secret of the fact that it purchased some of its supplies of cement from Irish Cement. There is no temporal scope to this category. It includes “all correspondence, emails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, [and] details of phone calls”, making it a category of discovery that reads more like a wish-list than a request for discovery which is tailored to be relevant, necessary and proportionate. It is impossible that all of the documentation sought would be relevant or necessary to the case as pleaded, including (as it does) all communications between employees in respect of CRH and Kilsaran. To order this category of discovery would be to place an entirely disproportionate obligation on the first and second-named defendants. For the reasons aforesaid, discovery of this category of documentation is refused.

(ix) Category 9.
I. Documentation Sought.

138. Category 9 comprises the following documentation:
“All documents created between 1st January 2006 and 31 December 2011 relating to the supply by the First Defendant, the Second Defendant or any company, entity or person within or related to the First Defendant’s group, to the Third Defendant or any related person or entity, of products, including aggregates, bitumen and explosives, and including, without prejudice to the generality of the foregoing, invoices and quotations; credit notes; rebates; and documents evidencing the supply of cement that was not ticketed or not invoiced.”

II. Observations.
139. This category, to borrow a colloquialism, is but ‘fishing’, and on a grand scale. This case is about concrete in the Greater Dublin market, nothing else. Yet Goode Concrete wants discovery spanning a five-year period of every document relating to every single product, even down to explosives, that have been sold by any company in the CRH group to Kilsaran. Asked to justify this category of discovery, Mr McMahon has averred in his first affidavit that “It is necessary to establish what relationship was in place between the CRH group and Kilsaran”. But, with respect, the only relationship that is legally relevant is ownership, and one establishes ownership by documents relating to ownership. In his second affidavit, Mr McMahon avers that “I would repeat what I said in my earlier affidavit”, then adds a couple of sentences later that “The category is also necessary because it is relevant to the claim that there are close links between CRH and Kilsaran”, a point which raises again the issue of “close links” considered at some length in the context of the Category 1 and 2 documentation sought of Kilsaran in the separate but related motion for discovery brought against it by Goode Concrete.

III. Conclusion.
140. For the reasons aforesaid, discovery of this category of documentation is refused.

(x) Category 10.
I. Documentation Sought.

141. Category 10 comprises the following documentation:
“All documents created on [and?] between 1st January 2006 and 31 December 2011 relating to the supply by Irish Cement Ltd or any other company, entity or person within the first defendant’s group, to the second defendant, of cement, including invoices and quotations.”

II. Observations.
142. Category 10 essentially narrows down Category 9, save that the focus now (and, as will be seen, in Category 11) is the supply of cement, as opposed to products generally. Again, it is, to borrow a colloquialism, a ‘fishing’ exercise on a still-grand scale. The only plea that is any way relevant to this category of discovery appears in para. 24 of the statement of claim which, it will be recalled, claims as follows:
“The agreements and/or arrangements between CRH and Roadstone and between CRH and Kilsaran for the supply and purchase of cement are unknown to the plaintiff. Such agreements and/or arrangements may also give rise to breaches of competition law. The plaintiff reserves the right to provide particulars of such breaches following discovery having been made by the defendants.”
143. Notable in the just-quoted text is that there is no allegation that there is some illegality in terms of price. Goode Concrete’s entire focus in its own claim is on the notion that the first and second-named defendants are part of the one undertaking. It follows inexorably from this the price at which they transfer cement between themselves is irrelevant for the purposes of competition law. It is the cost of production, not the price of cement that is relevant.

III. Conclusion.
144. For the reasons aforesaid, discovery of this category of documentation is refused.

(xi). Category 11.
I. Documentation Sought.

145. Category 11, as sought, comprises the following documentation:
“All documents created between 1st January 2006 and 31 December 2011 and relating to the supply by Irish Cement Ltd or any other company, entity or person within or related to the first defendant’s group, to the third defendant or any related person or entity, of cement, including, without prejudice to the generality of the foregoing, invoices and quotations; credit notes; rebates; documents evidencing the supply of cement that was not ticketed or not invoiced.”

II. Observations.
146. Category 11 again essentially narrows down Category 9, save that the focus now (as in Category 10) is the supply of cement, as opposed to products generally. And again it is irrelevant because the only abuse alleged against Irish Cement is below-cost selling of concrete in the concrete market. There is no allegation that CRH/Irish Cement is engaged in below-cost selling of cement to Kilsaran.

III. Conclusion.
147. For the reasons aforesaid, discovery of this category of documentation is refused.

(xii) Category 12.
I. Documentation Sought.

148. Category 12, as sought, comprises the following documentation:
“(i) All documents, including documents evidencing communications between the First or Second Defendant (or any person or entity related to the First or Second defendant, including employees, subsidiaries) and John Paul Construction, relating to the supply of concrete for the project at St Vincent’s Hospital as referred to at paragraph 30(i) of the statement of claim.
(ii) All documents, including documents evidencing communications between the First or Second Defendant (or any person or entity related to the First or Second Defendant, including employees, subsidiaries) and John McCann Property and/or Castleway Developments, relating to the supply of concrete for the project at a factory in Ballycoolin, Dublin as referred to at paragraph 30(ii) of the statement of claim.”

II. Observations.
149. The court cannot but note that in a previous interlocutory injunction application that featured in the within proceedings, Goode Concrete was able to put before the court an affidavit by a distinguished economist in which that economist defined the relevant market, and gave evidence of market shares and of his opinion as to dominance. So the court struggles to see why this category of discovery is required. Be that as it may, when it comes to Category 12 there has been a degree of rapprochement between the parties concerning their dispute as to what ought to be discovered. The dispute now arising between them is this: the first and second-named defendants have proposed an amended version of this category which refers to four specified contracts and uses the same formulation in respect of each category. Thus the first and second-named defendants propose an amended category of discovery whereby they will “make discovery of all documents evidencing communications between the second-named defendant” and, to use the first category by way of example “John Paul Construction up to the conclusion of the tender process relating to the supply of concrete for the project at St. Vincent’s Hospital as referred to in paragraph 30 of the Statement of Claim.” Goode Concrete has reverted to indicate that it wants this category to include not just communications between the second defendant and John Paul Construction, but any person or entity related to the first and second-named defendants, as well as the first and second-named defendants (even though it was the second-named defendants who put in the tender). The first and second-named defendants have indicated that they are satisfied for this category of discovery to extend to the second-named defendants, their servants or agents (and if the first-named defendant is acting as servant or agent of the second-named defendant, then that also). However, they rightly dispute on grounds of vagueness and the need for precision in discovery, the broad term “related to”.

III. Conclusion.
150. Having regard to the criteria of relevance, necessity and proportionality, the court will order discovery of the documentation as offered by the first and second-named defendants but for the year period identified by the court previously above as being generally appropriate (01.11.2007-28.02.2011).

XII. The Kilsaran Dimension
(i) Overview.

151. Before the court turns to a substantive consideration of Goode Concrete’s discovery application against Kilsaran, it pauses to make a few general observations:
(1) the case pleaded against Kilsaran is notably vague and speculative;
(2) a large portion of the case pleaded against Kilsaran relates to the allegation that there are “close links” between CRH and Kilsaran (Statement of Claim, para. 5), a phrase in respect of which the court has made critical comment previously above and returns to later below; and

(3) Kilsaran has expressed considerable concern as to the expense arising for it from the within proceedings, in circumstances where the likelihood of recovering costs from Goode Concrete appear, at best, to be small.

(ii) The Statement of Claim.
1. Paragraph 5.

152. The pertinent part of the statement of claim, from Kilsaran’s perspective, commences at para. 5, stating as follows:
“…The plaintiff pleads that there are close links between CRH and Kilsaran. Discovery and/or interrogatories will be required to establish whether CRH exercises decisive influence over Kilsaran such that CRH and Kilsaran are part of one and the same undertaking. In the premises, the conduct of the defendants the subject matter of these proceedings may constitute a violation of sections 4 and/or 5 of the Competition Act 2002 and/or Articles 101 and/or 102 of the Treaty on the Functioning of the European Union”.
153. The court has touched previously above on the mistaken usage of the notion of “decisive influence” in the context presenting. At this juncture, it would but note that there is, in truth, no plea against Kilsaran in the foregoing. All that presents is an allegation that there are “close links” between CRH and Kilsaran, without any identification of what that means (and not much more to go on when it comes to the replies to particulars). Requiring discovery of Kilsaran on foot of such a non-allegation is not allowed under the rules of discovery. The court recalls in this regard the decision of the Supreme Court in Carlow Kilkenny Radio Ltd v. Broadcasting Commission [2003] 3 IR 528. That was an unsuccessful appeal against an order of the High Court refusing various categories of documentation of which discovery sought in the context of a judicial review application commenced by the disappointed bidders for the award of a radio broadcasting licence. In the course of his judgment in that case, Geoghegan J. made, inter alia, the following observations, at 534:
“[I]n a very careful review of…case-law [in Shortt v. Dublin City Council [2003] 2 I.R. 69], Ó Caoimh J. cites, inter alia, a passage from the judgment of…Bingham M.R. in… R. v. Secretary of State for Health, ex parte Hackney London Borough (Unreported, English Court of Appeal, 24th July, 1994) at p. 82:-
‘The basic approach is that discovery and production will be ordered in judicial review proceedings where they are necessary for disposing fairly of the application but not otherwise. The rules themselves provide no guidance as to when discovery should be treated as necessary for disposing fairly of an action or application, but over the years a practice has developed, the broad principles of which are clearly understood, even if the application of those principles inevitably gives rise to controversy in individual cases. It is undesirable to attempt any precise definition of the existing practice, but I think it is broadly true to say that discovery will be regarded as necessary for disposing fairly of the action, or application, if a party raises a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to try the issue fairly, fairly that is to all parties, without discovery of documents bearing on the issue one way or the other.

In the ordinary inter partes civil action the plaintiff usually makes a series of factual averments which may well be challenged, but which are not usually sufficiently plausible to raise issues calling for discovery. It is not open to a plaintiff in a civil action, or to an application for judicial review, to make a series of bare unsubstantiated assertions and then call for discovery of documents by the other side in the hope that there may exist documents which will give colour to the assertions that the applicant, or the plaintiff, is otherwise unable to begin to substantiate. This is the proscribed activity usually described as ‘fishing’: the lowering of a line into the other sides waters in the hope that the net may enclose a multitude of fishes, the existence or significance of which the applicant has no rational reason to suspect.’

That statement of principle is easily recognisable in this jurisdiction also and would seem to represent Irish law clearly.” [Emphasis added].
154. Applying the above-emphasised principle to the plea which is contained in the statement of claim as regards Kilsaran, all of the discovery application as against Kilsaran, which is based on the premise that there are “close links” between Kilsaran and the first and second-named defendants falls away. This is because Goode Concrete is not entitled at law to ‘come in’, so to speak, to Kilsaran’s business and, to use a colloquialism, to ‘rumble around’ therein in the hope that it will stumble upon something which will give them the hope of making a case.

2. Paragraphs 15 and 16.
155. The next paragraphs of the statement of claim that are of especial application to Kilsaran are paragraphs 15 and 16 of same. These claim, inter alia, as follows:
“15. The plaintiff will allege that…

(ii) CRH/Roadstone and Kilsaran are in a position of collective dominance in the Dublin ready-mix concrete market; in the alternative, Kilsaran is part of the same undertaking as CRH/Roadstone and this undertaking holds a dominant position in the Dublin ready-mix concrete market.

16. The plaintiff will allege that the defendants have breached and are continuing to breach the EU and Irish competition laws. The extent to which such breaches have occurred and are continuing to occur may not be fully identifiable, at least until the plaintiff has had the opportunity to inspect the defendants’ discovery. The plaintiff therefore reserves its right to advance, following discovery, further particulars of breaches of competition law on the part of the defendants, if necessary by the delivery of an amended statement of claim.”
156. All this claim states, in effect, is that ‘We will claim that you have done wrong, we have nothing to justify this claim, we hope that we find something useful through discovery, and if we do we may amend our statement of claim.’ The judgment of Murray J. in Framus (considered previously above) and that of Geoghegan J. in Carlow Kilkenny Radio make clear that such an approach is not permissible in the context of a discovery application.

3. Paragraph 17.
157. Paragraph 17 of the statement of claim, states as follows:
“The majority of sales of concrete in the Dublin area are made following tenders conducted by construction firms. Since at least late 2007, each of CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at prices below cost, and in particular below average variable cost (‘AVC’), in concrete tenders in the Dublin are. The aim of this practice has been to distort competition and eliminate the plaintiff as a competitor in the concrete market.”
158. In the context of this claim, counsel for Goode Concrete pointed to certain conversations which he maintained had been held with a senior officer of Kilsaran indicating an intention to eliminate Goode Concrete from the market as a result of vigorous, perhaps even ruthless, competition. Without reaching any conclusion as to the allegations made by Goode Concrete in this regard, which is not the role of this Court at this time, the court would but note that when the foregoing conversations were opened to it, it could not but recall that there is, at law, a very real difference between a formal strategy to eliminate a competitor from the market and what might be styled ‘business speak’ with and about one’s competitors: lawful competition may be beneficial to society; it is not necessarily attractive to behold. Which category the said alleged conversations fall into will, of course, fall to be decided at the trial-stage of the within proceedings.

4. Paragraphs 18 and 19.
159. Paragraph 18 of the statement of claim continues with the following assertion:
“18. During this period [i.e. the period referred to in para. 17 (quoted above)], the ‘winning’ prices put forward by each of CRH/Roadstone and Kilsaran in concrete tenders have fallen in line with each other.”
[This commonality of decline is the sole basis, according to the statement of claim, upon which the defendants have breached and are breaching competition law, Goode Concrete stating that it is only explicable if there is anticompetitive behaviour.].

“19. The plaintiff will claim that the pricing practices of each of CRH/Roadstone and Kilsaran in concrete tenders are explicable only on the basis that the defendants have breached and are breaching competition law, in particular in one or more of the following ways:

(i) CRH/Roadstone and Kilsaran have engaged in collusive tendering in the Dublin concrete market in breach of section 4 of the Competition Act 2002 and/or Article 101 TFEU…”

[No specifics are pleaded in respect of any such collusion].”
160. There is a distinction between being required to plead specific evidence in a statement of claim and pleading a substantive basis for the claims being made. In the within case, if Goode Concrete considers (and it clearly does consider) that the defendants were engaged in anticompetitive behaviour of the type alleged in the above-quoted text, it was incumbent upon it to state how and why it believes they were engaged in anticompetitive behaviour.

5. Paragraph 24.
161. Paragraph 24 of the statement of claim states as follows:
“The agreements and/or arrangements between CRH and Roadstone and between CRH and Kilsaran for the supply and purchase of cement are unknown to the plaintiff. Such agreements and/or arrangements may also give rise to breaches of competition law. The plaintiff reserves the right to provide particulars of such breaches following discovery having been made by the defendants.”
162. The above text is concerned with breaches of competition law in the cement market. Yet Kilsaran claims that it has no presence on the cement market; because cement is a component of concrete it occasionally purchases cement from Irish Cement (a CRH subsidiary), but no more. When, in Kilsaran’s request for particulars, it requested that Goode Concrete:
“identify the ‘breaches of competition law’ to which any such arrangement and/or agreement are alleged to give rise as referred to in paragraph 24 of the Statement of Claim”,
it received the uninformative reply that:
“The breaches are those of section 4 of the Competition Act 2002 and Article 101 TFEU, if Kilsaran and CRH are separate undertakings; and breaches of section 5 and Article 102 TFEU if Kilsaran and CRH are part of one and [the] same undertaking”,
a response which was further touched upon in a subsequence notice for further and better particulars issued, with the following reply then issuing from Goode Concrete:
“The Plaintiff does not accept that the matters called for have not been adequately pleaded. Very detailed particulars of the conduct giving rise to breaches of competition law have been set out in the Statement of Claim. The plaintiff repeats the remainder of its reply to paragraph 26 of the Notice for Particulars [being the last-quoted text]”.
163. So, as can be seen, no good reply has been received in relation to the query raised, and no better answer was offered in the course of the hearing of the within applications. Yet discovery continues to be sought from Kilsaran in respect of its purported involvement in the cement market without any proper basis for same identifiable in the statement of claim beyond the barest of assertions.

(iii) Notices for Particulars and Replies Received.
164. The court has touched previously above on certain of the replies received to Kilsaran’s notices for particulars. Certain other aspects of the replies received to those notices are worth touching upon, if only to give a flavour of the overall tenor of the replies received:

A.
Particulars Sought: “1. Please provide full and detailed particulars of the alleged ‘close links between CRH and Kilsaran’ referred to in paragraph 5 of the Statement of Claim.”
Reply Received: “The Plaintiff contends that Kilsaran is secretly controlled by CRH. The relevant facts cannot be particularised further at this stage given that the close links have been kept secret. The plaintiff reserves the right to add further particulars after discovery and/or delivery of interrogatories.”

B.
Particulars Sought: “2. Please provide full and detailed particulars of the ‘decisive influence’ which CRH is alleged to exercise over Kilsaran.”
Reply Received: “Please see reply 1.”

C.
Particulars Sought: “3. Please provide full and detailed particulars of the basis for the allegation that ‘CRH/Roadstone and Kilsaran are part of one and the same undertaking’.”
Reply Received: “Please see reply 1.”

D.
Particulars Sought: “9. Specifically please identify the basis for the identification of an ‘Irish cement market’ and a ‘Dublin ready-mix concrete market’.”
Reply Received: “This is a matter for evidence.”

E.
Particulars Sought: “10. Please provide full and detailed particulars of how it is alleged that the ready-mix concrete market is geographically limited to either a Dublin market or a number of sub-markets.”
Reply Received: “The precise scope of the relevant geographic market is a matter for evidence, in particular, expert evidence. Without prejudice to the foregoing, the reference to the ‘Dublin concrete market’ is sufficiently precise to allow the first and second named defendants to know the case they have to meet. Further, without prejudice to the foregoing, the relevant market encompasses the geographic area of approximately 25/30 radial kilometres from each plant outside the city boundaries of the M50 and the whole area inside the M50 road that encircles Dublin City. A map is attached illustrating the area referred to.”

F.
Particulars Sought: “12. Please set out the basis for the market shares identified in paragraph 10 of the Statement of Claim.”
Reply Received: “This is a matter for evidence. Without prejudice to the foregoing, the market shares at paragraph 10 of the statement of claim are those estimated by the plaintiff to the best of its belief, based on its knowledge of the market.”

G.
Particulars Sought: “In relation to paragraph 17 of the Statement of Claim, please provide full and detailed particulars of how the Third Defendant is alleged to have tendered, offered for sale or sold concrete at prices below cost and in particular below average variable cost in concrete tenders in the Dublin area.”
Reply Received: “In this paragraph, the plaintiff was referring to the years 2007 to 2011 (when the statement of claim was delivered). The plaintiff has adequately particularised the claims of below cost and below average variable cost selling, in particular in Schedule 1 of the statement of claim. The Plaintiff reserves the right to add further particulars after discovery and/or delivery of interrogatories.”

165. In truth, the entirety of the case that is pleaded against Kilsaran, as is evident from the statement of claim and the replies to particulars, is along the lines of ‘We have come up with an allegation of some kind of anticompetitive behaviour. We don’t have to explain to you or plead what exactly that encompasses or entails. If we discover something on discovery which allows us to form a basis for the allegation which is put out there, then we will serve an amended statement of claim and the case can run on the basis of an amended statement of claim. In the interim, we will require wholesale levels of discovery from your client in order to allow us to establish that case’. Such an approach is clearly impermissible at law, and in truth it is so clearly impermissible that Goode Concrete has seen fit to invoke Regulation 1/2003 as a basis on which the court may and must side-step, in the competition law sphere, the usual rules as to discovery. The court has already indicated above why this contention is, with respect, entirely wrong.

(iv) Categories of Discovery Sought.
166. As regards all of the following categories of discovery, the court reiterates the observations as to temporal scope made in the context of the application for discovery brought against the first and second-named defendants.

1. Categories 1 and 2.
I. Documentation Sought.

167. Categories 1 and 2, as sought, comprise the following documentation:
“Category One

All documents created between 30 June 2006 and 30 June 2001 relating to the market to which cement belongs, the products with which cement competes and the competition which Irish Cement Limited faces, including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes, but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.

Category Two
All documents created between 30 June 2006 and 30 June 2011 relating to the market share and/or competitive position of Irish Cement, CRH, Kilsaran and/or competitors in the cement sector, including but not limited to all documents containing market shares of Irish Cement, CRH/Kilsaran and/or competitors in the cement sector and further including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.”

II. Breadth of Discovery Sought.
168. The court notes the usage of the phrase “relating to” (so the category could not be more widely drawn) and the list of documentation that follows reads more like a wish-list than a request for discovery that is tailored to be relevant, necessary and proportionate.

III. “Close Links”.
169. Mr McMahon, in the affidavit grounding Goode Concrete’s application for discovery, avers in effect that whereas Kilsaran has indicated that it is not active in the cement market at all, this ignores the “close links” claim in paragraph 5 of the statement of claim (as considered above). However, the term “close links” is not a term of law on which Goode Concrete is entitled, to use a colloquialism, to ‘hang its hat’ in respect of an application for discovery. For Kilsaran to be acting on the cement market, Goode Concrete would have to establish, at trial, that Kilsaran is owned by CRH and that for competition law purposes they are a single economic unit. However, the manner in which this is pleaded in the statement of claim shows, with respect, a fundamental misunderstanding of the concept of a single economic unit for competition law purposes.
170. For Kilsaran to be implicated on the cement market, Goode Concrete would have to plead that (i) CRH owns Kilsaran, and (ii) CRH not only has the ability, but does in fact exercise decisive influence over Kilsaran. Neither of these matters is pleaded, i.e. there is no pleading in the statement of claim which could amount to a plea that Kilsaran and CRH are a single economic unit for the purposes of the within proceedings. Accordingly, there is no basis in the pleadings for a determination that Kilsaran is part of CRH. In truth, when one looks at matters from this perspective, i.e. from the perhaps mechanical but nonetheless crucial perspective of how the within proceedings have been pleaded, the issue raised as to “close links” can be seen to have been a ‘red herring’. This is because for the court at trial to find that Kilsaran was in a cement market where it is not a participant, it would have to find that Kilsaran is owned and controlled by CRH…and there is no pleading to that effect.

IV. Conclusion.
171. For the reasons aforesaid, discovery of each of Category 1 and 2 is refused.

2. Categories 3 and 4.
I. Documentation Sought.

172. Categories 3 and 4, as sought, comprise the following documentation:
“Category Three

All documents created between 30 June 2006 and 30 June 2011 relating to the market to which the supply of ready-mix concrete in the greater Dublin area belongs, the products with which ready-mix concrete competes and the competition which the Third Defendant faces including but not limited to marketing and sales reports, reports on existing and potential competitors, external reports, strategic plans, business forecasts and documents relating to the competitive environment in general. This category also includes but is not limited to reports made to executives, management monthly reports, identification of targets/assessment of performance against those targets, minutes of business review meetings and other regular/one-off reports dealing with such issues.

Category Four
All documents created between 30 June 2006 and 30 June 2011 relating to the market share and/or competitive position of competitors, including but not limited to the position of the plaintiff, the second defendant and the Third Defendant in the supply of ready-mix concrete in the Greater Dublin area.”

II. Breadth of Discovery Sought.
173. In Categories 3 and 4 almost identical categories of documentation as are sought in Categories 1 and 2, but this time in respect of the ready-mix concrete market where Kilsaran does have a presence. Because the categories are drafted in the same sweeping terms as Categories 1 and 2, they are subject to similar criticism made by the court in this regard in respect of Category 1.

II. The Market Definition Exercise.
174. A further difficulty presents in ordering such discovery as is sought. Goode Concrete’s contention is that the type of information referred to in the just-quoted text will be necessary for the trial court to engage in a market definition exercise. But that, with respect, is not so. The reality is that when the trial court engages in a market definition exercise it will do so with the benefit of expert economic testimony that will invoke the hypothetical monopolist test. Kilsaran’s monthly management reports, or the assessment of performance against targets, or any of the myriad of such documents which are sought by Goode Concrete are neither here nor there (as demonstrated by the fact that Goode Concrete has previously submitted to the court, in the context of the within proceedings, a lengthy report by a well-known economist who undertakes his analysis of the relevant market definition, competitive structure and market shares without any recourse to the type of information which Goode Concrete is saying is now necessary). A market definition is pleaded, market shares are posited in the statement of claim, and they will be defended by expert economic analysis; they will not be defended by reference, e.g., to monthly board meetings or whether specific targets for sale forecasts were met on a particular market at a particular time. That is not how the market is going to be defined and it is not how market shares are going to be established.

IV. Conclusion.
175. Having regard to the foregoing, discovery of Categories 3 and 4 is refused.

3. Categories 5 and 6.
I. Documentation Sought.

176. Categories 5 and 6, as sought, comprise the following documentation:
“Category Five

In respect of each instance of supply by the Third Defendant, in the Greater Dublin area, of ready-mix concrete, from 1 January 2007 to 30 June 2013, in respect of the jobs or tenders listed in Schedule 1 of the Statement of Claim and jobs/tenders involving supply above 1,500 cubic metres of ready-mix concrete, all documents evidencing the costs of production and supply, including all fixed and variable costs.

Category Six
In respect of each instance of tender and/or supply by the Third Defendant, in the Greater Dublin area, of ready-mix concrete, from 1st January 2007 to 30 June 2013, in respect of the jobs/tenders listed in Schedule 1 of the Statement of Claim and jobs/tenders involving supply above 1,500 cubic metres of ready-mix concrete, all documents evidencing the prices at which the Second [Third?] Defendant tendered, offered to supply and supplied ready-mix concrete, such documents to include those which indicate all tenders in which the Second [Third?] Defendant participated and the outcome of such tenders.”

II. Observations.
177. When it comes to these categories, Goode Concrete is looking for discovery over a 5½ (five and one-half) year period, extending not just to the jobs/tenders listed in Schedule 1 but to all jobs/tenders involving more than 1,500 cubic metres of ready-mix concrete. That is entirely disproportionate. It will be recalled that the first and second-named defendants offered a schedule of the prices that they tendered for in respect of the contracts that are listed in the schedule to the Statement of Claim. That, it seems to the court, is a proportionate approach that is consistent with the MTV decision. However, Kilsaran was minded, subject to concerns in respect of the establishment of a confidentiality ring and the provision of security for costs, to make a concession and agree to both of these categories, as sought. Nonetheless the category remains at this time in dispute.

III. Conclusion.
178. For the reasons aforesaid, the court will order discovery on the terms as offered by the first and second-named defendants. Those terms seem to it to meet best the needs of relevance, necessity and proportionality.

4. Category 7.
I. Documentation Sought.

179. Category 7, as sought, comprises the following documentation:
“Category Seven

“(a) All documents evidencing any communications between the First or Second Defendant (or any person or entity related to the First or Second Defendant, including employees, subsidiaries) and the Third Defendant (or any person or entity related to the Third Defendant including employees, subsidiaries) relating to the supply (and including documents relating to prices, proposed prices, bids and/or tenders) of ready-mix concrete and/or speciality concrete products in the Dublin area between 1 January 2007 and 31 December 2011, including, without prejudice to the generality of the foregoing, all correspondence, e-mails, memoranda/notes of conversations, minutes and recordings.
AND
(b) All documents evidencing any communications between the Third Defendant and any competitor relating to the supply (and including documents relating to prices, proposed prices, bids and/or tenders) of ready-mix concrete in the Dublin area between 1 January 2007 and 31 December 2011, including, without prejudice to the generality of the foregoing, all correspondence, e-mails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, details of phone calls.”

II. Observations.
180. As regards item (a), this goes to the issue of “close links” (as considered in the context of Categories 1 and 2 above). However, as previously noted, there is no pleading as to what form those “close links” take or what the implications of those “close links” are – and it is to the pleadings that one looks, not to allegations separately contained in affidavit evidence. There is nothing in the statement of claim which justifies an order for discovery on the basis of “close links”. In fact the statement of claim reveals, at para.16, that Goode Concrete requires discovery to see if there are “close links” and breaches of competition law and reserves the right to serve an amended statement of claim post-discovery. That is not permitted under the rules on discovery. It is, to use a metaphor, impermissible ‘fishing’. As regards item (b), the court notes that there is no allegation against the second-named defendant of bid-rigging with anybody other than the third-named defendant. To look for material relevant to alleged or possible bid rigging with other competitors is, to use the metaphor aforesaid, ‘fishing’.

III. Conclusion.
181. For the reasons aforesaid, discovery of Category 7 is refused.

5. Category 8.
I. Documentation Sought.

182. Category 8, as sought, comprises the following documentation:
“All documents evidencing the relationship between, on the one hand, the First Defendant or any person or entity related to the First Defendant (including employees, subsidiaries), and, on the other, the Third Defendant or any person or entity related to the Third Defendant (including employees, subsidiaries), including, without prejudice to the generality of the foregoing, all documents relating to payments or transfers of money or other assets by the First Defendant or any person or entity related to the First Defendant to the Third Defendant or any person or entity related to the Third Defendant; any guarantees, letters of comfort or letters of support provided by or on behalf of the First Defendant or any person or entity related to the First Defendant to, or for the benefit of, the Third Defendant or any person or entity related to the Third Defendant; and all correspondence, emails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, details of phone calls.”

II. Observations.
183. This is a vastly wide category (not least because CRH includes Irish Cement and Kilsaran has made no secret of the fact that it purchased some of its supplies of cement from Irish Cement). There is no temporal scope on this category. It includes “all correspondence, emails, memoranda/notes of conversations, minutes, recordings, mobile phone text messages, [and] details of phone calls”, making it another category of discovery that reads more like a wish-list than a request for discovery which is tailored to be relevant, necessary and proportionate. It is impossible that all of the documentation sought would be relevant or necessary to the case as pleaded, including (as it does) all communications between employees in respect of CRH and Kilsaran. To order this category of discovery would be to place an entirely disproportionate obligation on Kilsaran.

III. Conclusion.
184. For the reasons aforesaid, discovery of this category of documentation is refused.

6. Category 9.
I. Documentation Sought.

185. Category 9, as sought, comprises the following documentation:
“All documents created between 1st January 2006 and 31 December 2011 relating to the supply by the First Defendant, the Second Defendant or any company, entity or person within or related to the First Defendant’s group, to the Third Defendant or any related person or entity, of products, including aggregates, bitumen and explosives, and including, without prejudice to the generality of the foregoing, invoices and quotations; credit notes; rebates; and documents evidencing the supply of cement that was not ticketed or not invoiced.”

II. Conclusion.
186. This category of documentation mirrors the Category 9 documentation sought by Goode Concrete of the first and second-named defendants in its separate but related application for discovery against them. For the same reasons (mutatis mutandis) identified in respect of that other Category 9, discovery of this category of documentation is refused.

7. Category 10.
I. Documentation Sought.

187. Category 10, as sought, comprises the following documentation:
“All documents created on [and?] between 1st January 2006 and 31st December 2011 relating to the supply by Irish Cement Limited or any other company, entity or person within the First Defendant’s group, to the Third Defendant (or any related person or entity) of cement, including, without prejudice to the generality of the foregoing, invoices and quotations; credit notes; rebates; documents evidencing the supply of cement that was not ticketed or not invoiced; contracts.”

II. Observations.
188. Category 10 essentially narrows down Category 9, save that the focus now is the supply of cement, as opposed to products generally. Again, it is, to borrow a colloquialism, a ‘fishing’ exercise. The only plea that is any way relevant to this category of discovery appears in para. 24 of the statement of claim which, it will be recalled, claims as follows:
“The agreements and/or arrangements between CRH and Roadstone and between CRH and Kilsaran for the supply and purchase of cement are unknown to the plaintiff. Such agreements and/or arrangements may also give rise to breaches of competition law. The plaintiff reserves the right to provide particulars of such breaches following discovery having been made by the defendants.”
189. Notable in the just-quoted text is that there is no allegation that there is some illegality in terms of price. Goode Concrete’s entire focus in its own claim is on the notion that the first and second-named defendants are part of the one undertaking. It follows inexorably from this the price at which they transfer cement between themselves is irrelevant for the purposes of competition law. It is the cost of production, not the price of cement that is relevant.

III. Conclusion.
190. For the reasons aforesaid, discovery of this category of documentation is refused.

8. Category 11.
191. This category has been agreed.
2. APPLICATION OF CRH PLC AND ROADSTONE WOOD LIMITED FOR DISCOVERY FROM GOODE CONCRETE.

XIII. Categories Sought and Agreed
192. Fifteen categories of discovery have been sought by the first and second-named defendants against Goode Concrete. Only two categories (Categories 4 and 12) are in dispute but an order is nonetheless sought as regards the other thirteen categories. The court will therefore order discovery as sought of Categories 1-3, 5-11 and 13-15.

XIV. Agreement as to Applicable Principle
193. The court does not understand there to be any difference between the parties in relation to the principles applicable, being, in essence, relevance, necessity and proportionality, with relevance falling to be determined by reference to the pleadings in the case and necessity generally falling upon a finding of relevance. At hearing, reference was made in this regard to Ryanair v. Aer Rianta and Framus v. CRH plc, both of which have been considered previously above.

XV. Category 12
(i) Documentation Sought.

194. Documentation Sought: “All documents evidencing, recording or relating to the reasons why the Plaintiff ceased trading as of 18th February 2011, including but not limited to the following:
(i) Minutes of board meetings and management meetings of the Plaintiff for the period 2004 to 2011 addressing this issue;
(ii) Communications between the Plaintiff and any regulatory authority, including but not limited to, any planning authority and the Revenue Commissioners in relation to issues which led to the Plaintiff ceasing trading;

(iii) All documents relating to breaches of loan covenants and any acts of default on any loans and all documents relating to any hire purchase or lease agreements entered into by the Plaintiff in the period between 2004 and 2011;

(iv) Consolidated audited accounts for the Plaintiff for the years ended 31 December 2004 to 2011;

(v) Audited accounts for the concrete business of the Plaintiff for the years ended 31 December 2004 to 2011;

(vi) Management accounts for the Plaintiff for the consolidated entries for the years ended 31 December 2004 to 2011;

(vii) Management accounts for the concrete business of the Plaintiff in respect of the Greater Dublin Area for the years ended 31 December 2004 to 2011;

(viii) Management accounts for the concrete business for the Plaintiff for the years ended 31 December 2004 to 2011;

(ix) Consolidated accounts for the Plaintiff group of operating companies prepared at a Jersey ownership company level for the years ended 31 December 2004 to 2011;

(x) All documents relating to Goode Concrete’s plants at Naas, Co Kildare, Killeen Road, County Dublin and Ballycoolin, Co Dublin, and its sand and gravel quarries at Carbury, County Kildare and Kinnegad Co Westmeath, including but not limited to documents regarding their location, permitted reserves, planning status and documents demonstrating their operational structure for the haulage of aggregates to the sites;

(xi) All documents relating to any applications for planning permission for extraction at the Plaintiff’s sites and all documents relating to compliance with same;

(xii) All documents relating to the purchase of lands by the Plaintiff in the period between 2004 and 2011, to include but not be limited to, the investment rationale underlying such decisions to purchase the said lands and the expected reserves and planning outcome;

(xiii) All documents evidencing the cost of producing aggregate from the Plaintiff’s plants at Carbury and Kinnegad and the costs of haulage to downstream plants;

(xiv) All documents evidencing the period of operation of the Plaintiff’s plants;

(xv) All documents evidencing or relating to the payments or benefits made by the Plaintiff to directors, or persons connected to the directors, including but not limited to, all documents in respect of salaries, pensions and rent, or any other payments whatsoever, between 1st January 2004 and 31st December 2011;

(xvi) All documents relating to the Statement of Affairs produced on appointment of the receiver to the Plaintiff and all communications between the Receiver and the Plaintiff and/or the directors of the Plaintiff and all reports produced by the Receiver in relation to the financial position of the Plaintiff;

(xvii) All documents relating to the costs reduction measures implemented by the Plaintiff during the period from 2008 to 2011 having regard to the collapse in the Irish construction sector;

(xviii) All documents evidencing the ownership of each of the sites used by the Plaintiff in the operation of the Plaintiff and, where relevant, the rent paid in respect of these sites and all documents evidencing the level of reserves and the site remediation requirements at all sites owned and/or operated by the Plaintiff up to the date of the closure of the sites; and

(xix) All documents comprising or evidencing any financial advice given to the Directors of the Plaintiff relating to the Plaintiff’s financial position from 2005 onwards and in particular including in relation to the reasons for the financial difficulties suffered by the Plaintiff.”

195. This category relates to documents that go the question of why Goode Concrete went out of business. How does that issue arise in the pleadings?

(ii) Predatory Pricing
1. Statement of Claim.

196. Paragraph 17 of the statement of claim, it will be recalled, claims as follows:
“The majority of sales of concrete in the Dublin area are made following tenders conducted by construction firms. Since at least late 2007, each of CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at prices below cost, and in particular below average variable cost (‘AVC’), in concrete tenders in the Dublin area. The aim of this practice has been to distort competition and eliminate the Plaintiff as a competitor in the concrete market.”
197. As can be seen from the just-quoted text, a claim is being made of predatory pricing on the part of the defendants, which predatory pricing has (as it must if it is to be predatory pricing) the aim and objective of eliminating Goode Concrete as a competitor in the market.
198. Paragraph 20 of the statement of claim then pleads as follows:

“The defendants have succeeded in their aim of eliminating the Plaintiff as a competitor in the concrete market. Due to its inability to compete with the defendants’ pricing concrete at below AVC, the plaintiff was forced to cease trading as of the 18th February 2011. Furthermore, the price of ready mixed concrete in the Dublin area has increased significantly since the Plaintiff’s exit from the market.”
199. In this text there is a clear allegation that Goode Concrete’s cessation of trade is attributable to the defendants’ predatory pricing. The plaintiff asserts that that is why it went out of business: it was forced out of business by below cost selling that had the intention and the effect of forcing the Plaintiff out of the market. And the last sentence pleads something that is an integral part of an allegation of predatory pricing, viz. that following the elimination of Goode Concrete from the market, the price of ready mix concrete increased significantly.

2. Notice for Particulars and Replies to Same.
200. As part of the notice for particulars raised by the first and second-named defendants, Goode Concrete was requested to “specify the material facts relied on to support the contention that the Defendants have succeeded in their aim of eliminating the Plaintiff as a competitor in the concrete market”. To which Goode Concrete has replied as follows: “This is a matter for evidence. Without prejudice to the foregoing, the plaintiff relies on the breaches of competition law complained of and the fact that the plaintiff was forced to cease trading.”
201. That then is the evidence relied upon and the case that has been made, viz. that the cessation of trade of Goode Concrete was and is attributable, and attributable only, to alleged breaches of competition law on the part of the Defendants.

3. Defence.
202. The allegations aforesaid are denied. Thus paras. 27 and 33 of the Defence read as follows:
“It is denied that, since late 2007 (or any time), the first and/or second Defendants and/or third Defendant have tendered, offered for sale or sold concrete at prices below cost, and in particular below average variable cost (‘AVC’) in concrete tenders in the Dublin area. It is denied that the claim of this alleged practice (which practice is denied) has been to distort competition and eliminate the Plaintiff as a competitor in the concrete market (and it is denied that the extent of this market is as particularised by the Plaintiff.”
…

It is denied that it has been at any time the aim of the first and/or second Defendants to eliminate the Plaintiff as competitor in the alleged concrete market, and it is further denied that the first and/or second-named Defendants priced concrete at [or] below AVC.”

203. So, looming through the foregoing as a central issue in dispute in the within proceedings is whether the first and/or second-named defendants: engaged in pricing practices that had the aim of eliminating the plaintiff from the market; and succeeded in so doing.

(iii) Mismanagement, High Levels of Debt, etc.
204. A further feature of the Defence is para. 34 of which, where it is pleaded as follows:
“The first and second Defendants are strangers as to the circumstances in which the Plaintiff ceased to trade but it is denied that this occurred as of 18th February 2011. It is further denied that it was caused or contributed to by the alleged anti-competitive conduct on the part of the Defendants, or any of them. On the contrary, the Plaintiff ceased to trade in circumstances where its business was badly managed, it had a high level of debt, payments to directors in respect of salaries, pensions and rent were excessive, its cost base was uncompetitive and it had incurred significant debt on the purchase of sites for which it was unable to obtain planning permission in an attempt to secure necessary aggregate supplies.”
205. Apparent from this line of defence is that there is a stark conflict of fact as to the reasons why the Plaintiff ceased trading. And continuing in this vein, paras. 50 and 51 of the Defence plead as follows:
“50. If the Plaintiff has suffered the alleged or any loss or damage (which is denied), same was not caused or contributed to by any act or omission on the part of the first and/or second Defendants.
51. If the Plaintiff has suffered the alleged or any loss or damage (which is denied), same was caused and/or contributed to by the acts or omissions of the Plaintiff and/or the directors and/or management of the Plaintiff in that the Plaintiff was badly managed, had a high level of debt, had an inflated cost base and low margins, made payments to directors in respect of salaries, pensions and rent that were excessive, lost significant sums of money on the purchase of sites for which it was unable to obtain planning permission in an attempt to secure necessary aggregate supplied and failed to cut costs and take other measures in response to the very significant downturn in the construction industry.”

206. The foregoing are the reasons identified in the Defence as to why Goode Concrete’s business failed. As a result, one of the core issues that the court is going to have to determine in the within proceedings is whether Goode Concrete’s business failed because of the alleged anti-competitive conduct or because of the factors just described or, conceivably, an element of both.

(iv) Notice for Particulars and Replies to Same.
207. Goode Concrete served a Notice for Particulars arising from the Defence, yielding, inter alia, the following replies:
“ The Irish Construction Industry enjoyed unprecedented high levels of output in the years 2006, 2007 and even 2008….
 In the period between 2002 and 2006, when there was no allegation of anti-competitive activity, the operating profit of the Plaintiff dropped from a margin of 14.4% to 4.4% due to the doubling of overhead and depreciation levels and by the end of 2006, the Plaintiff’s net debt had increased from 13.1 million in 2003 to 27 million.

[Court Note: The court recalls in this regard that the allegations of anti-competitive conduct are made in the proceedings are alleged to have commenced towards the end of 2007. So the just-recited facts relate to the period prior to the commencement of any alleged anti-competitive conduct and show a doubling of debt and a significant huge decrease in margin.]

 The decline in the Plaintiff’s market share was exacerbated by its decision to close various plants which were located in poor locations (the Plaintiff closed plants in Naas, Co. Kildare, Ballycoolin, Co. Dublin in 2008 and Carbury, Co. Kildare in 2009). This left the Plaintiff with only one remaining plant, its plant at Killeen Road, Co. Dublin.

 With the exception of its plant at Carbury, Co. Kildare, where the reserve is largely exhausted, the Plaintiff failed to locate its plants on sites which enjoyed the cost benefit of onsite stone aggregates and was therefore at a considerable disadvantage vis-a-vis its competitors.

 The Plaintiff failed to have secure self-owned permitted reserves which provide a cost-effective long term source of aggregate supply and was therefore at a considerable competitive disadvantage vis-à-vis its competitors.

 The Plaintiff purchased sites in locations where planning permission for extraction could not be obtained. The Plaintiff was therefore bearing the debt of these investments with no return. An alternative method commonly employed in the construction industry was to purchase sites subject to planning permission for extraction being obtained. Typically these types of arrangements involved some option fee being paid but ultimately it protects the purchaser from finding itself in the adverse position in which the Plaintiff found itself.

 The most cost-effective method for haulage delivery is sub-contract haulage. However, the Plaintiff operated a substantial fleet of haulage trucks which they owned or leased and the trucks were driven by their employees. This cost burden increased as the market contracted further and truck utilisation factors declined.

 Good plant is key to efficient concrete operation. From the accounts presented for the Plaintiff, the written down value of plant and machinery at the end of 2010 was 27.8% of the cost, indicating that this plant is coming to end of life. As plant ages, reliability and utilisation factors decline whilst maintenance costs increase. Ultimately, all plant must be replaced, requiring a substantial capital investment. Based on the Plaintiff’s debt levels, it is unsurprising that replacement plant could not be financed.

 By the end of 2006 the Plaintiff’s suppliers were waiting an average of seven months for payment. The Plaintiff was dependent upon a business model that was predicated on the market remaining at peak levels to service both these high costs and its large debt. It therefore encountered serious difficulties on entering the economic downturn. These difficulties were then exacerbated by the Plaintiff’s failure to reduce its fixed costs in line with the fall in volume and demand that had been experienced by the industry since late 2007. As a percentage of volume of sales, these fixed costs increase from 11% in 2003 to 38% in 2010. The return on capital employed was 4.3% in 2006, down from 15.2% in 2002 and 10.8% in 2003.”

208. In the foregoing the first and second-named defendants have identified a series of factors that they say contributed to the demise of Goode Concrete’s business and which show (so the first and second-named defendants claim) that Goode Concrete was under financial pressure well before the commencement of the alleged anti-competitive conduct. The court, of course, does not know how this defence will fare at the ultimate trial of action. For present purposes it suffices to note that it is a rationally grounded plea rooted in the evidence before the court. In particular in this regard, the court notes that among that evidence is an expert report to the court dated May 2011 and prepared, in the context of a previous application for security for costs in the within proceedings, by Mr Kevin Spillane, then a Director of Corporate Finance within KPMG. In his report, Mr Spillane identifies why he considers the business of Goode Concrete to have failed, relying on the (relatively limited) information then available to him (detailed later below), and does so in terms that accord with the case advanced by the first and second-named defendants, being that Goode Concrete’s downfall was (in his view; this may not be accepted by the court at trial) attributable to low operating margins generated by its business in 2006 and 2007, a high level of debt contracted in 2006 and 2007, the severity of the downturn in the construction sector and the national economy post-2007, and the absence of a significant reduction in net debt in the company between 2006 and 2010. Perhaps most notable, however, for present purposes is Mr Spillane’s averment in the affidavit to which his report is exhibited that “I confirm that I have reviewed category 12 of the request [for discovery] and, in the context of this case, I consider that all of the information requested in the enumerated sub-categories is relevant and necessary in order for me to give my expert opinion on why the Plaintiff ceased trading.” That, it seems to the court, is an averment to which some weight ought be attached: it is an expert saying that in his professional opinion certain information is relevant and necessary to his giving a fully informed expert opinion. Notably, in this regard, there is no replying affidavit from any expert acting for Goode Concrete averring that such information is not required to give an informed view on Goode Concrete’s finances during the relevant time-period and the reasons why it failed as an enterprise.

(v). Objections to Discovery.
209. A number of arguments are made by Goode Concrete as to why it should not make discovery.

1. An issue of damages only.
210. Goode Concrete contends that (i) the question here is whether there was anti-competitive conduct and whether ensuing damages were suffered, and (ii) the question of why Goode Concrete went out of business is something that goes to the assessment of damages only. So, for example, Mr McMahon avers as follows in his affidavit evidence:
“Mr Lenny [avers]…that the cause of the Plaintiff’s demise is a central issue at the heart of these proceedings. The central question in the proceedings is, in fact, whether the defendants committed the breaches of competition law and other laws alleged in the Statement of Claim. The extent to which these breaches caused the Plaintiff to cease trading would likely only be relevant, as one factor, to the assessment of damages. Certainly, the Plaintiff, in order to succeed in these proceedings and establish an entitlement to damages, is not required to show that it ceased trading on account of the breaches of competition law and other laws on the part of the Defendants. Its position is that it is entitled to damages whether or not the breaches of laws on the part of the Defendant ultimately caused it to cease trading, as for example, the breaches of competition law by the Defendants will have resulted in the Plaintiff on losing work and market share that it would otherwise have obtained and also being forced to reduce its prices to artificially low levels in order to remain in the market. Once the Defendants have made discovery and the Plaintiff has had the opportunity of reviewing the information discovered, it should be able to provide further particulars in this regard.”
211. However, it seems to the court that this is to downplay the significance of the issues raised by the first and second-named defendants. Those issues are not confined to a question of quantum and assessment of damages; rather they go to the core of the case being made by Goode Concrete, which is that the defendants engaged in predatory pricing. Predatory pricing is a practice that normally involves an undertaking selling significantly below a competitor’s prices, even at no price, in order to force that competitor to lose market share or to leave the market entirely. Once an undertaking achieves what it considers to be sufficient market share, then it would typically raise its prices to monopoly levels so as to recoup the losses made during the predatory period. And the foregoing is precisely what is alleged in paras. 17 and 20 of the statement of claim (as quoted above), viz. below-cost selling to force Goode Concrete from the market and a related raising of prices once Goode Concrete was gone. Another feature of predatory pricing is that it typically involves a dominant undertaking acting in a predatory manner; however there is no reason why it could not also involve collective predatory action by a number of undertakings, whether dominant or not, acting collectively against a common competitor. And, again, that is what is alleged in this case: Goode Concrete alleges collective dominance on the part of the defendants so that they had a sufficient position of dominance to engage in predatory pricing; that is the precursor to the allegation of anti-competitive conduct. Lest there be any doubt that the foregoing is in fact the case that Goode Concrete is making, the following extracts from the written submissions of counsel for Goode Concrete make clear that this is so:
“12. Assuming for the moment that CRH/Roadstone and Kilsaran are separate undertakings, the conduct of the defendants would be explicable on the basis that there was an agreement between them to engage in predatory pricing with the aim of eliminating the Plaintiff from the Dublin concrete market….
17. The plaintiff has also supplied evidence to show that CRH/Roadstone and Kilsaran have abused their collectively held dominant position in the Dublin concrete market. The plaintiff submits that predatory pricing by firms in a position of collective dominance is an abuse of that dominant position in the same way as predatory pricing by a firm in a position of single firm dominance is an abuse. It has also been established that firms in the position of collective dominance abuse that dominant position by engaging in practices aimed at eliminating the competitor from the market (e.g. Cases T-24/93 etc., Compagnie Maritime Belge Transports SA v. Commission [1986] ECR II-1201, para. 248). In respect of firms occupying a collective dominant position pricing below AVC is presumed to be an abuse whereas pricing at a level between AVC and average total cost (‘ATC’) is an abuse if an eliminatory intention is shown. (Case C-62/86 AKZO Chemie BV v. Commission [1991] ECR I-3359, paras. 71-72)….In any event, there is evidence of eliminatory intent on the part of CRH/Roadstone and Kilsaran so that if any of the prices identified as being below AVC were in fact below AVC and ATC, they would still be abusive on the basis of the eliminatory intent on the part of the Defendants.”

212. It is clear from the foregoing that the question as to whether Goode Concrete was forced out of business by the anti-competitive conduct of the defendants is core to the case that is being made by Goode Concrete. And the documents that are sought by the first and second-named defendants in Category 12 go to the question of whether Goode Concrete’s business did fail for the reasons alleged by Goode Concrete and/or for the detailed reasons alleged by the first and second-named defendants. Additionally, when it comes to assessing any (if any) damages that might fall to be ordered following the trial of these proceedings, the trial court would concern itself with, inter alia, whether Goode Concrete went out of business (a) because the defendants forced it out of business, or (b) because of its financial situation, etc., and not because of the defendants’ conduct. The way in which the trial court would approach the quantification of damages would be very different depending on which (if either) of those two scenarios was found to obtain. In Scenario (a), Goode Concrete would be trading today; however, in Scenario (b) the court would be looking at a position where Goode Concrete would have gone out of business in any event but in which the court might find (and this Court, of course, has no view and makes no finding in this regard) that that cessation of business had been accelerated and/or precipitated by some form of anticompetitive conduct that is presently alleged. The outcome on damages could and likely would be significant, so again the issue of whether Goode Concrete’s business did fail for the reasons alleged by Goode Concrete and/or for the detailed reasons alleged by the first and second-named defendants goes to that .

2. Goode Concrete’s Offer.
213. Goode Concrete has offered to make discovery of its audited accounts for the years ended 31st December 2007, 2008 and 2009 and its management accounts for the period ended 31st October 2010. However, Mr Spillane, at para. 4 of his above-mentioned expert report, states as follows:
“During the course of my review I had access to the following information:
 The audited accounts of Goode Concrete for the years ended 31 December 2007, 2008 & 2009 and the company’s management accounts for the period from 1 January 2010 to 31 October 2010…

 Affidavits by John O’Gorman and Peter Goode and other documentation from the proceedings;

 The audited financial statements of Readymix plc (Cemex), a direct competitor of Goode Concrete identified by Peter Goode.”

214. As can be seen from the above, among the information used by Mr Spillane to prepare his report of May, 2011 is the information that was available to the first and second-named defendants over six years ago. So the offer, properly viewed, is an offer of nothing. And not surprisingly it is an offer that has not been accepted by the first and second-named defendants, effectively because Mr Spillane, in uncontroverted evidence, has averred that “I have reviewed category 12 of the request [for discovery] and, in the context of this case, I consider that all of the information requested in the enumerated sub-categories is relevant and necessary in order for me to give my expert opinion on why the Plaintiff ceased trading.”

3. Proportionality.
215. Goode Concrete complains that to order discovery of the documentation sought in Category 12 would offend against the requirement as to proportionality in the ordering of discovery.
216. What does proportionality mean in the context of a discovery application? Is it a concept with real meaning, or is it but the last refuge of a desperate person at the receiving-end of such an application? If one looks to Framus, that was a decision handed down not too long after the Rules of the Superior Courts had been amended, with those amendments introducing for the first time the concept of necessity. In Framus, it would be fair to say that the question of proportionality is dealt with under the umbrella of necessity. However, in the years since Framus was decided, proportionality has come to play a more distinct role in the analysis undertaken by the courts in relation to discovery application such that nowadays it is often, perhaps even more often than not, broken out separately from necessity and considered on a stand-alone basis by the deciding court. Thus while conceptually the notion of proportionality still remains within the framework of necessity, in recent years there has been, concomitant with the increasing concern manifested by the courts as to the cost and burden of discovery, a tendency in reality for the courts to treat proportionality as a separate matter for analysis and not just a matter considered under the rubric of necessity. The essence of disproportionality, in this context, is that what is being ordered is too large in comparison with something else. (Though the word ‘disproportionality’ obviously extends to something being too small in comparison with something else, in the courtroom context the person at the receiving-end of a discovery application seems unlikely ever to claim that not enough is being sought of it by way of discovery). But what is that ‘something else’ by which a claim of disproportionality falls to be construed? Finlay Geoghegan J. in Boehringer Ingelheim Pharma GmbH and Co KG v. Norton (Waterford) Limited t/a Teva Pharmaceuticals Ireland [2016] IECA 67, touches succinctly on this issue, at para. 45 of her judgment, when she observes that “The proportionality between the potential advantage to Teva in obtaining these documents for use in these proceedings and the probable cost and time involved in Boehringer making discovery and taking into account the position in the UK proceedings is such that discovery of categories 2 and 3 is not necessary for the fair disposal of the proceedings.” So on one side of the scales the court looks to how relevant documents are, how important they are to the issues in the proceedings; on the other side the court balances time and cost. Thus, to put matters at their simplest, if there are documents that are not very relevant to a case and it is going to cost a lot of money to make discovery of them, a court will likely say that the discovery sought is disproportionate. By contrast, if discovery of certain documentation is going to cost a lot of money but the documents are very relevant, a court will likely say that that is not disproportionate, given how important the documents are to that particular case. (And the test falls always to be applied in the particular context of a particular case, i.e. what the issues are, what the costs are, etc., in that particular context).

217. Bringing the foregoing to the context of the within proceedings, the court notes that it has been offered a bald averment by Goode Concrete that what is being sought by the first and second-named defendants offends against proportionality. This has been coupled with the assertion by counsel for Goode Concrete in his oral submissions that, to paraphrase, ‘Goode Concrete is little and is being asked for lots’. However, no evidence has been offered with which the court could properly engage when it comes to the issue of proportionality in this regard. No facts or figures have been provided in evidence to the court. Mention was made by counsel that it might be difficult to obtain documents from a receiver but no evidence has been furnished in this regard. Indeed, a feature of the within proceedings is that while Mr Goode swore a number of affidavits in relation to Goode Concrete’s application for discovery, he has not sworn a single affidavit in relation to the other applications for discovery. Turning however, to address the issue of proportionality as argued by counsel for Goode Concrete in his oral submissions, the court would make the following observations (the quoted text represents each limb of Category 12).

218. “(i) Minutes of board meetings and management meetings of the Plaintiff for the period 2004 to 2011 addressing this issue”.

No evidence has been given to the court as to why this category of discovery is disproportionate. So there is nothing before the court to suggest how many documents are in issue.
219. “(ii) Communications between the Plaintiff and any regulatory authority, including but not limited to, any planning authority and the Revenue Commissioners in relation to issues which led to the Plaintiff ceasing trading”.
Again, counsel for Goode Concrete in his oral submissions contended that this category is disproportionate. However, there is nothing before the court by way of evidence in this regard. There could be any number of documents in this category, from no records to a few to a large number (and if there are a large number of records this is relevant because these are documents that go to the issues which led to Goode Concrete ceasing trade).
220. “(iii) All documents relating to breaches of loan covenants and any acts of default on any loans and all documents relating to any hire purchase or lease agreements entered into by the Plaintiff in the period between 2004 and 2011”
These are documents that go directly to the financial difficulties of Goode Concrete. What the first and second-named defendants anticipate that they will find if they get discovery of these documents is that there were breaches of the loan covenants and of hire purchase agreements and acts of default long before the alleged anticompetitive conduct started.
221. “(iv) Consolidated audited accounts for the Plaintiff for the years ended 31 December 2004 to 2011;
(v) Audited accounts for the concrete business of the Plaintiff for the years ended 31 December 2004 to 2011;
(vi) Management accounts for the Plaintiff for the consolidated entries for the years ended 31 December 2004 to 2011;

(vii) Management accounts for the concrete business of the Plaintiff in respect of the Greater Dublin Area for the years ended 31 December 2004 to 2011;

(viii) Management accounts for the concrete business for the Plaintiff for the years ended 31 December 2004 to 2011;

(ix) Consolidated accounts for the Plaintiff group of operating companies prepared at a Jersey ownership company level for the years ended 31 December 2004 to 2011”

When it came to these various accounts, counsel for Goode Concrete especially objected to the fact that the first and second-named defendants want accounts dating back to 2004, However, accounts of such vintage are relevant and necessary because the first and second-named defendants plead that the seeds of Goode Concrete’s demise long pre-date the anticompetitive conduct that is alleged to have commenced in late-2007.

As to category (ix), the relevance of which was queried by Goode Concrete, this category must, with respect, be clear to Goode Concrete. It (Goode Concrete) is an unlimited company owned by Jersey companies. As a result, Mr. Spillane in his expert report has identified this sub-category of documentation as necessary for him to provide rounded expert advice in relation to the matters on which he has been asked to report and opine, the filing requirements of unlimited companies obviously being less onerous (and so the accounts filed less informative) than those of a limited company, i.e. the companies at the Jersey level.

222. “(x) All documents relating to Goode Concrete’s plants at Naas, Co Kildare, Killeen Road, County Dublin and Ballycoolin, Co Dublin, and its sand and gravel quarries at Carbury, County Kildare and Kinnegad Co Westmeath, including but not limited to documents regarding their location, permitted reserves, planning status and documents demonstrating their operational structure for the haulage of aggregates to the sites”
A particular query was raised by counsel for Goode Concrete as to the relevance of sub-category (x). Again, however, it seems to the court, with respect, that the relevance of this sub-category must be clear: the first and second-named defendants have pleaded in their replies to particulars that Goode Concrete’s plants were badly located and that offers a proper basis for discovery of this sub-category.
223. “(xi) All documents relating to any applications for planning permission for extraction at the Plaintiff’s sites and all documents relating to compliance with same;
(xii) All documents relating to the purchase of lands by the Plaintiff in the period between 2004 and 2011, to include but not be limited to, the investment rationale underlying such decisions to purchase the said lands and the expected reserves and planning outcome;
(xiii) All documents evidencing the cost of producing aggregate from the Plaintiff’s plants at Carbury and Kinnegad and the costs of haulage to downstream plants;

(xiv) All documents evidencing the period of operation of the Plaintiff’s plants”.

Again, each of these sub-categories of discovery goes to the pleadings about the (allegedly deficient) commercial management of Goode Concrete in the years immediately preceding that entity’s eventual collapse.

224. “(xv) All documents evidencing or relating to the payments or benefits made by the Plaintiff to directors, or persons connected to the directors, including but not limited to, all documents in respect of salaries, pensions and rent, or any other payments whatsoever, between 1st January 2004 and 31st December 2011”
The need for this sub-category of documentation again derives from Mr Spillane’s report. Mr. Spillane has specifically noted how while Goode Concrete’s business was collapsing the directors continued to take large sums out of the business by way of salaries, pension and rental payments. The first and second-named defendants plead that one of the reasons why Goode Concrete got into financial difficulties was because as sales dropped rapidly, overheads, including salaries, etc., were not cut commensurately. Hence these documents are relevant and necessary and as with all these sub-categories there is no evidence before the court that to order discovery of any or all of these sub-categories would be disproportionate.
225. “(xvi) All documents relating to the Statement of Affairs produced on appointment of the receiver to the Plaintiff and all communications between the Receiver and the Plaintiff and/or the directors of the Plaintiff and all reports produced by the Receiver in relation to the financial position of the Plaintiff;
(xvii) All documents relating to the costs reduction measures implemented by the Plaintiff during the period from 2008 to 2011 having regard to the collapse in the Irish construction sector;
(xviii) All documents evidencing the ownership of each of the sites used by the Plaintiff in the operation of the Plaintiff and, where relevant, the rent paid in respect of these sites and all documents evidencing the level of reserves and the site remediation requirements at all sites owned and/or operated by the Plaintiff up to the date of the closure of the sites;

(xix) All documents comprising or evidencing any financial advice given to the Directors of the Plaintiff relating to the Plaintiff’s financial position from 2005 onwards and in particular including in relation to the reasons for the financial difficulties suffered by the Plaintiff”.

Again, each of these sub-categories of discovery goes to the pleadings about the (allegedly deficient) commercial management of Goode Concrete in the years immediately preceding that entity’s eventual collapse.

(vi) Conclusion as to Discovery of Category 12.
226. It seems clear to the court that Category 12, for the reasons aforesaid, is relevant and necessary, going to a central issue in the proceedings. Based on the evidence and submissions before it, and noting the want of meaningful evidence as to disproportionality, the court does not see that to order this category of discovery would offend against the requirement as to proportionality. The court will therefore order discovery of Category 12 as sought.

XVI. Category 4
227. Documentation Sought: “In respect of each instance of supply by the Plaintiff, in the Greater Dublin area, of ready-mixed concrete in the period between 31 October 2007 to 12 November 2010, all documents evidencing, recording or relating to the Plaintiff’s costs of production and supply, including all fixed and variable costs.”
228. As with Category 12, the relevant portions of the statement of claim are paras. 17 and 20 and have been quoted above. As to the particulars of the claims in relation to below-cost pricing, pursuant to an order of Charleton J., inter alia, the following details were provided:

“The Plaintiff cannot know the average variable cost (‘AVC’) of the Second Named Defendant of supplying ready-mix concrete and concrete products. Discovery will be required to establish this. However, the Plaintiff does know its own costs and to its best knowledge and belief the Second-Named Defendant did not have a lower AVC to the Plaintiff at any of the material times relevant to these proceedings….
Without prejudice to its position that the components of AVC and those of fixed costs are properly a matter for legal submission and evidence, the Plaintiff says that its own AVC includes:

Cement

GGBS (slag)

Sand/Aggregates

Wages

Transport Costs

Energy

Other variable overheads including maintenance, materials testing, Admixture.

The average variable cost to the Plaintiff of producing and supplying 35N20mm concrete in the greater Dublin area in each of the years ending March 2008, March 2009 and March 2010 across all of its supplies of concrete, was approximately as follows:

– 2008 – €67/m3

– 2009 – €65/m3

– 2010 – €65/m3”.

229. It appears from the foregoing that, at this time, Goode Concrete intends to rely, perhaps inter alia, on its own AVC at trial to suggest that the defendants were selling below AVC because they were selling below the Goode Concrete’s AVC. And certainly its counsel, in oral submission indicated that some of Goode Concrete’s witnesses as to fact may want to rely on Goode Concrete’s AVC history. Even so, Goode Concrete has resisted discovery of this category of documentation on the basis that the issue in these proceedings is the defendants’ AVC, not that of Goode Concrete. That is the key issue; however, it is Goode Concrete that has made its own AVC relevant in these proceedings by introducing it through its replies to particulars. Yet despite entreaties from the first and second-named defendants that Goode Concrete confirm that it does not intend to rely on its own AVC, Goode Concrete has not so confirmed. Subject to the requirements as to relevance, necessity and proportionality, a plaintiff will generally encounter difficulty in resisting discovery if it pleads a case, then pleads that discovery should not be ordered on the basis of what it has pleaded, yet simultaneously seeks to retain the right to proceed at trial precisely on the basis of what it has pleaded. In these proceedings such an approach could lead to a manifestly unfair situation at trial in which Mr. Peter Goode would give evidence as to what Goode Concrete’s AVC was, yet the first and second-named defendants would previously have been deprived by this Court of access to relevant documents by way of discovery, all but closing off the opportunity of the first and second-named defendants effectively to cross-examine Mr Goode on such testimony and/or to call a suitable expert to give evidence. Absent confirmation to the court (and there has been no such confirmation) that Goode Concrete will not seek at trial to rely on its own AVC in the manner described above, this category of discovery is patently relevant, necessary and proportionate. The court will therefore order discovery of Category 4 as sought.
3. APPLICATION OF KILSARAN CONCRETE FOR DISCOVERY FROM GOODE CONCRETE

XVII. Introduction
230. The notice of motion whereby Kilsaran Concrete seeks discovery of Goode Concrete comprises nine categories of discovery. Only one of these categories (Category 5) is now in dispute. It comprises the following documentation: “All documents relating to and/or referring to the Plaintiff’s decision to cease trading.”

XVIII. The Statement of Claim
231. Turning to the pleadings, the court recalls in this regard paras. 17-20 (incl.) of the statement of claim, which claim as follows:
“17. The majority of sales of concrete in the Dublin area are made following tenders, conducted by construction firms. Since at least late 2007 each of CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at prices below cost, and in particular below average variable cost (‘AVC’), in concrete tenders in the Dublin area. The aim of this practice has been to distort competition and eliminate the plaintiff as a competitor in the concrete market.
18. During this period, the ‘winning’ prices put forward by each of CRH/Roadstone and Kilsaran in concrete tenders have fallen in line with each other.

19. The plaintiff will claim that the pricing practices of each of CRH/Roadstone and Kilsaran in concrete tenders are explicable only on the basis that the defendants have breached and are breaching competition law, in particular in one or more of the following ways:

(i) CRH/Roadstone and Kilsaran have engaged in collusive tendering in the Dublin concrete market in breach of section 4 of the Competition Act 2002 and/or Article 101 TFEU.
(ii) CRH/Roadstone and Kilsaran have engaged in an agreement or agreements and/or have engaged in a concerted practice or concerted practices, to tender, offer for sale and/or to sell concrete at below cost prices contrary to section 4 of the Competition Act 2002 and/or Article 101/TFEU.

(iii) CRH/Roadstone and Kilsaran have abused a collective dominant position in the Dublin concrete market by tendering, offering for sale and/or selling concrete at below cost prices contrary to section 5 of the Competition Act 2002 and/or Article 102 TFEU.

20. The defendants have succeeded in their aim of eliminating the plaintiff as a competitor in the concrete market. Due to its inability to compete with the defendants’ pricing of concrete at below AVC, the plaintiff was forced to ceased trading as of 18th February 2011. Furthermore the price of ready mixed concrete in the Dublin area has increased significantly since the Plaintiff’s exit from the market.”
232. As can be seen from the just-quoted elements of the statement of claim, Goode Concrete’s claim against Kilsaran is, in essence, as follows: prices fell, they allegedly fell below Goode Concrete’s AVC and Goode Concrete maintains that the only possible explanation for this is anti-competitive behaviour which had the realised aim of eliminating Goode Concrete as a competitor from the market. So it is a central and critical aspect of Goode Concrete’s case that it was forced to cease trading by alleged anti-competitive activity. This allegation is expressly denied by Kilsaran in its Defence. So again one is back essentially to the core issue touched upon previously above as arising between Goode Concrete and the first and second-named defendants, viz. what was the true reason for Goode Concrete’s collapse?

XIX. Relevance and Necessity
233. Ms Murdock, a solicitor acting for Kilsaran treats fulsomely with the rationale for this category of discovery in her affidavit evidence, and a related offer of discovery in respect of this category (which she maintains points to an acknowledgement by Goode Concrete of the relevance of same) averring, inter alia, as follows:
“13. I say that the relevance of the documents and their necessity to the fair disposal of the proceedings has been recognised by the Plaintiff in their agreement to provide discovery of the documents sought in category 5 in a limited form. The Plaintiff has agreed to furnish the Third Named Defendant with its audited accounts for the years ending 31 December 2007. 31 December 2008, 31 December 2009 and management accounts for the period ending 31 October 2010.
14. However, I say that in the Third Named Defendant’s view that offer is insufficient. The Category is drafted so as to cover all documentation in the Plaintiff’s power or possession which would shed light on the basis for the decision to cease trading. I say and believe and am advised that it is the Third Named Defendant’s belief that the said decision was taken by virtue of the impact of commercial pressures felt as a result of management decisions and other difficulties in the Plaintiff company. However, without the documents sought the Third Named Defendant may be unable to sustain any challenge to the Plaintiff’s assertion that the decision to cease trading was taken by virtue of anti-competitive pressures from other market participants as opposed to by virtue of any of the myriad of other reasons why an undertaking might decide to cease trading.”

234. The court respectfully does not see that an offer of part-discovery necessarily points to any concession by the offeror that the category of documentation to which that offer relates is relevant. That would not be so very different from pointing to a settlement of litigation between parties as necessarily pointing to one or other (or both) of the settling parties accepting that they are somehow at fault. Such an offer, such a settlement, may simply be and often is a calculated step taken in the overall context of proceedings and can be informed by an array of factors, notably but not only the expense that any protraction of litigation invariably involves. However, the court accepts, by reference to the above-quoted pleadings that this category of documentation is both relevant and necessary, both as to the core issue presenting and also when it comes to damages (quantification of harm/damages being a major element of competition law proceedings, and one part of the applicable assessment, as touched upon previously above, being that the trial court must consider how the market would have developed absent any (if any) anti-competitive behaviour found by that court to present).

XX. Proportionality
235. The issue of proportionality has been raised by Goode Concrete as regards Category 5 as sought. Thus Mr McMahon, a solicitor acting for Goode Concrete has averred, inter alia, in his affidavit evidence that “The contention by the Third Defendant that the cause of the demise of the Plaintiff is a central issue at the heart of the proceedings…is a mischaracterisation of the position and the breadth of the discovery which is sought is entirely disproportionate.” That, in essence, and unsupported by any evidence as to the scale of the potential exercise involved, is Goode Concrete’s case as regards the issue of proportionality in this regard. Factors that seem to the court of relevance to its assessment of proportionality in this regard are the following. First, it does not seem to the court that the request is unjustifiable given the pleadings in the statement of claim, and the express denial in the Defence, as touched upon above. Second, as to the scope and cost of disclosure, these are identifiable documents which should in truth be available (and at low cost) to Goode Concrete. But if they are not available, then they are not available and cannot be discovered. As to the general desirability of not having non-specific searches, this is a very specific search, not some wide-ranging request for discovery. Finally, as to the confidentiality and commercial sensitivity of the documents requested, it has repeatedly been asserted at the hearing of the within proceedings that Goode Concrete per se is no longer trading, so there can be no issue in respect of the confidentiality of the company’s documents.

XXI. Conclusion as to Discovery of Category 5
236. It seems clear to the court that Category 5, for the reasons aforesaid, is relevant and necessary, going to a central issue in the proceedings. Based on the evidence and submissions before it, and noting the want of meaningful evidence as to disproportionality, the court does not see that to order this category of discovery would offend against the requirement as to proportionality. The court will therefore order discovery of Category 5 as sought.

Telefonica O2 Ireland Limited v Commission for Communications Regulation

[2011] IEHC 265
JUDGMENT of Mr. Justice Clarke delivered the 30th June, 2011
1. Introduction
1.1 This application relates to the potential disclosure of confidential documentation. In the underlying proceedings the applicant (“O2”) seeks to quash a determination made by the respondent (“ComReg”) fixing the price at which emergency calls which are free to the public are to be charged as and between service providers.

1.2 While it will be necessary, in due course, to say a little more about the regulatory regime which governs such emergency calls, there is an obligation, as a matter of European Union law, to permit members of the public to make such calls free of charge. The regime which applies in Ireland is that a single service provider is nominated to handle all such calls by the provision of call centres. The decision as to who should provide such services is made after an open tendering process. At the present time the second named notice party (“BT”) holds the contract. The contract itself is between BT and the first named notice party (“the Minister”).

1.3 In simple terms, all emergency calls are, under that contract and the relevant law, handled by BT. Insofar as the caller may be a BT customer, then BT bears the cost of that emergency call. Insofar as the caller may be a customer of another telephone service provider (such as O2), then BT is entitled to charge for the handling of the relevant emergency call at a rate to be fixed by ComReg. The relevant service provided by BT is described as the Emergency Call Answering Service (“ECAS”). ComReg’s entitlement to determine the maximum call handling fee that the ECAS operator can charge is made under s. 58D of the Communications Regulation Acts 2002-2010 (“the 2002 Act”).

1.4 There is a sense in which the provision of such free emergency calls is the price paid by service providers for operating in the Irish marketplace. The price is paid, in relation to all providers other than BT, by paying an appropriate proportion of the cost of maintaining the relevant call centres and, in the case of BT, by it bearing its own proportion of those costs.

1.5 There is a mechanism for determining the amount to be charged. There is no suggestion made by O2 in these proceedings that there is anything wrong with the overall architecture of the relevant scheme. It is accepted that it is permissible for Ireland to put in place a scheme whereby there is a single operator of emergency call centres who is entitled to pass on an appropriate share of the costs of maintaining those call centres to other service providers. O2, therefore, does not make any complaint about the principle that it should have to pay an appropriate share of the reasonable costs of providing a free emergency service to all phone customers (including its own). The challenge in the underlying proceedings refers to the amount currently fixed by ComReg for such charge.

1.6 In that general context, O2 seeks disclosure of certain documentation relating both to the process whereby the charge was fixed and the contractual arrangements under which BT provides the service concerned. ComReg opposes any greater disclosure than has already been made. In addition, both the Minister and BT were joined as notice parties to this application (even though they are not parties to the proceedings generally) for both the Minister and BT have an interest in arguing in favour of the confidential nature of the information sought to be disclosed.

1.7 In the course of the hearing before me it became clear that a central question which arises in these proceedings generally (being the question of the standard of review to be applied by the court) had the potential to be of significance in determining the relevance to the proceedings of at least some, and possibly all, of the information and material sought to be disclosed. In those circumstances it is appropriate to turn first to the issue of the standard of review which might be applied in these proceedings generally.
2. The Standard of Review
2.1 O2 argues that it is appropriate that the court should exercise a standard of review using the “manifest error” or “serious and significant error” tests applied in respect of certain EU law matters. In particular, O2 argues that the requirement contained in Article 4(1) of Directive 2002/21 (“the Framework Directive”), which provides that there should be an effective mechanism available to any undertaking providing electronic communications networks, to appeal against a decision of a national regulatory authority, requires that the court apply what might loosely be called a European standard of review rather than the standard of review traditionally applied by the Irish courts in judicial review proceedings. Reference in that regard is made to McQuen (Case C-103/96). That proposition is strongly contested by ComReg. That issue would, ordinarily, come to be determined as part of the full hearing. However, the fact that that issue is live has the potential to have some significance for the way in which it is appropriate for the court to address the questions of disclosure which arise in these proceedings. In particular, it was quite properly conceded by counsel on behalf of O2 that the materials whose disclosure is sought in this application would not be relevant to an assessment of whether a test of irrationality (as identified in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39) had been met.

2.2 Put briefly, the factual position is that ComReg invited Howarth Bastow Charleton (“HBC”) to produce a report to assist it in fixing the relevant fee. The report in question is dated the 17th December, 2010. That report has been disclosed but in a redacted form. Strictly speaking O2 seeks, separately, disclosure and discovery. Disclosure is sought in respect of an un-redacted version of the HBC report (the report having been referred to in the evidence placed before the court on behalf of ComReg) and also in respect of the contract between the Minister and BT (similarly referred to in the evidence filed). In addition, discovery is sought of both of those documents together with certain drafts, working papers, and input documents, relevant to the HBC report. One of the principal objects of the application which O2 now makes is to seek to have disclosed the redacted portions of that report.

2.3 However, it is clear that the report recommends the call charge which was ultimately fixed on by ComReg. On that basis there clearly were materials before ComReg which would allow it to come to the view that the call charge which it actually fixed was appropriate. Also, at least at a general level, the methodology adopted by HBC is clear from the un-redacted portions of its report. To the extent, therefore, that it might be said that the broad methodology adopted was impermissible (for example, that relevant factors were not considered or irrelevant factors taken into account) then the detail of the redacted portions does not seem to be material. In those circumstances it seems clear that counsel for O2 was correct when he conceded that the material now sought to be disclosed would not be necessary to determine those aspects of these proceedings which seek to challenge the merits of the decision made by ComReg if the standard of review is O’Keeffe irrationality. However, it is argued on behalf of O2 that, in the event that O2 is correct in its submission that the standard of review is a stricter one having regard to Article 4 of the Framework Directive, then a wider range of materials would be relevant to the case and ought to be disclosed.

2.4 It should be noted that ComReg, supported in this respect by both the Minister and BT, argues that, even allowing for a more stringent standard of review, the materials sought are not relevant. It will be necessary to return to that aspect of the argument in due course. However, the fact that there is a dispute between the parties as to the appropriate standard of review is a matter which seems to me to be of some significant relevance to the proper approach which the court should adopt to this disclosure application. In that context it is appropriate to turn to the status of confidential documentation.
3. Confidential Documentation
3.1 In Independent Newspapers (Ireland) Limited v. Murphy [2006] 3 IR 566, I stated that:-

“…it seems to me that the balancing of the rights involved also requires the application of the doctrine of proportionality. To that extent, it seems to me to be appropriate to interfere with the right of confidence to the minimum extent necessary consistent with securing that there be no risk of impairment of a fair hearing.”
Earlier Lynch J., in National Irish Bank Limited v. Radio Telefís Éireann [1998] 2 IR 465, had noted a legitimate public interest in the maintenance of confidentiality in appropriate cases for the benefit of society at large. More recently in Thema International Fund Plc v. HSBC Institutional Trust Services (Ireland) Limited [2010] IEHC 19, I held that the principle of proportionality that applies to the breadth of discovery applies equally where discovery is being sought of highly confidential documents. In Thema I noted that:-
“…it has already come to be recognised that there must be some proportionality between the breadth of discovery sought and the likelihood of the discovered category of documents having some meaningful bearing on the proceedings. Likewise, similar considerations have led to the view that where documents which have a significant confidentiality attaching to them are sought, same should only be discovered (again on the basis of proportionality) where it is necessary that they be discovered…”
3.2 It must, of course, be recognised that the issue of the status of confidentiality in the discovery or disclosure process only arises where the materials sought to be disclosed are relevant to the proceedings. If the materials are not relevant then there is no basis for their disclosure in the first place. The first question must, therefore, be one of relevance. I have already noted that there is an issue between the parties as to whether the materials sought to be disclosed on this application would be relevant even on the basis of the standard of review which O2 contends for.
3.3 However, it seems to me that the overall approach to discovery or disclosure can perhaps be summarised in the following fashion:-

1. In order for discovery or disclosure to be appropriate the documents or materials sought must be shown to be relevant.
2. If the documents are relevant, then confidentiality (as opposed to privilege) does not, of itself, provide a barrier to their disclosure.

3. The court is required to exercise some balance between the likely materiality of the documents concerned to the issues which are anticipated as being likely to arise in the proceedings, and the degree of confidentiality attaching to the relevant materials. In that context, the confidence of third parties may be given added weight for it must be accepted that those parties who become embroiled in litigation will necessarily have to disclose information about their confidential affairs when that information is necessary to the fair and just resolution of the relevant litigation. See the discussion of the relevant authorities by Kelly J. in Koger Inc v. O’Donnell [2009] IEHC 385.

4. In attempting to balance those rights the court can seek to fashion an appropriate order designed to meet the facts of the individual case so as to protect both the legitimate interests of the party seeking disclosure to ensure that all relevant materials potentially influential on the result of the case are before the court and, to the extent that it may be proportionate, the legitimate interests of confidence asserted. Thema, Yap v. Children’s University Hospital Temple Street [2006] IEHC 308 and Hartside v. Heineken Ireland Ltd [2010] IEHC 3. The discovery aspects of Yap are not addressed in the written judgment cited but involved a postponement of disclosure of confidential patient records until determined necessary by the trial judge.

3.4 In the context of the last point it should be noted that, in somewhat different contexts, I had occasion to make orders which were designed to ensure that documents would be available at trial if required, but were not to be immediately disclosed in circumstances where it was not by any means clear at the time when the disclosure application fell to be decided that the materials concerned would, in fact, be necessary to a proper resolution of the proceedings in question. In Independent Newspapers the underlying case involved an attempt to set aside a settlement of defamation proceedings in circumstances where the Flood Tribunal had made findings of fact which, it was said, suggested that the materials published by the newspaper concerned were truthful. The precise legal basis on which it would be appropriate for the court to set aside such a settlement was far from settled law. It followed that the precise factual materials that might be relevant to the consideration of the court were likewise far from clear at the time of the discovery application in question. What was sought were the records of communications made in confidence to journalists. As I pointed out in Independent Newspapers the balance, viewed at least at the stage of the discovery application, was between the possibility that the documentation in question might be relevant as against the certainty that there would be a significant breach of confidence in its disclosure. In those circumstances I made an order designed to preserve the relevant documentation and to ensure that it would be available at the trial if, in the light of the case then made, the trial judge took the view that the information was relevant to the issues which needed to be decided. It does, of course, need to be reiterated that, if information is really of some significance to the fair determination of proceedings, then it is most unlikely that any confidentiality would be sufficient to outweigh the need for the proper administration of justice. At a general level, it seems likely that confidence will only come into play where there is a disproportion between the level of confidence which would be breached and a very limited potential relevance of the material concerned. Highly confidential information, which would only have a very tangential relevance to proceedings, might legitimately not be disclosed.
3.5 However, what cases such as Independent Newspapers, Yap, and Hartside were concerned with was the slightly different situation where the precise information that might be necessary for a fair resolution of the proceedings was not clear at the time when the discovery application was being made. For the reasons set out in those cases, it seems to me that the court has a jurisdiction to put in place an appropriate regime designed to minimise the risk that confidential information will be disclosed only for it to transpire later that the disclosure in question was unnecessary. The regime that may best achieve that end can, of course, vary from case to case. In those circumstances it is appropriate to turn to this case.
4. Application to this Case
4.1 In opening his application counsel on behalf of O2 put his argument in the following way. He suggested that there was at least an argument in favour of the proposition that, a standard of review beyond O’Keeffe irrationality was applicable. It is, of course, always open to any applicant in judicial review proceedings to place reliance on issues arising out of an allegation that improper factors were taken into account or proper factors were not considered. However, where all and only proper factors are considered, the traditional standard of review as to the merits of the judgment reached on those factors is, of course, O’Keeffe irrationality. In dealing with the standard of review to be applied in this case I am, it should be noted, concerned, therefore, with the extent to which it may be required of the court to analyse the merits of the decision reached by ComReg by reference to a higher standard of review than O’Keeffe irrationality. It is only in the context of such a higher standard of review being applicable that it would be necessary for the court to consider the detailed calculations and methodology to be found in the HBC report and the other documents which fed into the final version of that report. Counsel for O2 argued that, if he were successful in persuading the court at the full hearing that such a higher standard of review was to be applied, then the materials which he sought to have disclosed or discovered were likely to be relevant. In those circumstances it was argued that disclosure of those materials should be ordered for, it was said, such materials were relevant to an issue which, on the pleadings, arose in the case.

4.2 Counsel for the Minister was the first to broach the possibility that, in those circumstances, there was at least an argument in favour of the proposition that the question of the standard of review should be determined first in these proceedings as a stand alone issue on a modular basis with any question of disclosure being postponed until after that issue had been determined. It seemed to me that there was significant logic in the position adopted by counsel for the Minister which was supported by counsel for BT and ComReg and indeed was accepted, in reply, by counsel for O2 as having some merit.

4.3 Given that it was accepted on behalf of O2 that the disclosure sought would not be appropriate if the standard of review is found to be O’Keeffe irrationality, it seems to me that I am faced with a case where I am presently being asked to order the disclosure of what I am satisfied is significantly confidential commercial information against the possibility that the trial judge may be persuaded that a higher standard of review is appropriate and may, consequentially, come to view at least some of the information sought to be disclosed as being relevant. It might well be that, if there were no disclosure and confidence difficulties, the balance would not favour separating out the issue of the standard of review from all other issues in this case. That being said that balance, on the facts of this case, is, in my view, a fine one. It will be necessary to turn shortly to whether I am satisfied that the disclosure sought would not be relevant even on the basis of the standard of review contended for on behalf of O2. If that were to be the case, then the appropriate order to make would be to decline disclosure at this stage and allow the case to take its natural course. That course would, on balance, it seems to me, be a unitary trial of all issues including those issues concerned with the standard of review. However, in the event that I am not satisfied that the disclosure sought (or at least some of it) could not be relevant even on the basis of the standard of review contended for on behalf of O2, then it seems to me that the balance of justice would favour directing a modular trial with the issue of the standard of review being tried first and postponing the question of disclosure until after that issue had been determined. It is clear, for example, that if O2 fails in persuading the court that a standard more stringent than O’Keeffe irrationality is to apply, then the disclosure sought ought not be directed. In the event, therefore, that ComReg wins the standard of review argument, it follows that disclosure of what is undoubtedly confidential information will not need to occur.

4.4 In those circumstances, it seems to me that it would be appropriate to depart from what might otherwise be the normal way of dealing with all issues in this case at a unitary trial and separate out, on a modular basis, the standard of review issue from all remaining issues. In that context, I should add that counsel for O2 drew attention to the fact that there was a narrow and discreet fair procedures point made in the case which would also be capable of being dealt with without the need to enter into a final determination of the disclosure issues with which I am currently concerned.

4.5 Unless, therefore, it is clear that none of the confidential information sought would be relevant even on the basis of the standard of review contended for on behalf of O2, it seems to me that it would be appropriate to direct a modular trial with the standard of review and fair procedures questions being dealt with first and all other issues being dealt with at a subsequent hearing. In that eventuality it would be appropriate to adjourn a consideration of the disclosure issues now before the court until the standard of review issue had been determined.

4.6 In that context it is necessary to return to the question of the documents which might be said to be relevant having regard to the standard of review.
5. Relevancy and the Standard of Review
5.1 In order to assess this matter it is necessary to consider the argument put forward on behalf of O2 as to the appropriate standard of review. This application is not, of course, the place to reach a final determination on that question. What I am concerned with is whether there is any basis on which the result of the standard of review issue might affect the relevance of documents and materials for if it could not so affect the question of relevance then there is no reason to delay dealing with relevance at this stage.

5.2 The traditional standard of review (being O’Keeffe irrationality) which is argued for by ComReg as being the appropriate standard of review hardly needs to be analysed. On the other hand O2 argues that Article 4 of the Framework Directive requires that member states ensure that there be a right of appeal to an independent appeal body in respect of any decision of a national regulatory authority which affects an electronic communications network provider such as O2. O2 also draws attention to the provision in Article 4(1) of the Framework Directive which places an obligation on member states to ensure that the appeal mechanism is “effective”. On that basis it is argued that the remit of the High Court on a judicial review application concerning a decision of a national regulatory authority must necessarily be wider than O’Keeffe irrationality.

5.3 A number of points are made by ComReg against that proposition. First, it is pointed out that there is an appeal mechanism specified in the relevant domestic legislation which, it would appear, does not cover a decision of the type made by ComReg in this case. If, therefore, it is suggested, there is an EU law obligation to provide an appeal mechanism which is effective in a case such as this, then Ireland has failed to adequately implement the Directive. In those circumstances it is suggested that the remedy lies in an appropriate form of proceeding designed to ensure compliance by Ireland with its obligations under the Directive rather than with attempting to rewrite the scope of Irish judicial review. See, for example, the decision of Kelly J. in Ryanair v. Commission for Aviation Regulation [2008] IEHC 278.

5.4 In addition, it should be noted that, on the basis of an analysis of the Framework Directive, it is suggested on behalf of ComReg that ComReg is not itself acting as a national regulatory authority (in the sense in which that term is used in the Framework Directive) when it is making a decision of the type involved in these proceedings. ComReg draws attention to the provisions of Article 2(g) of the Framework Directive which defines national regulatory authority by reference to the tasks assigned in the Framework Directive and certain other specific Directives referred to. Thus, ComReg argues that, even though ComReg is a national regulatory authority for the purposes of the Framework Directive not all, it is said, of the statutory tasks given to ComReg fall within the scope of the Framework Directive. It is said that the decision under review in this case arises solely under s. 58D of the 2002 Act and is not, therefore, covered by the Framework Decision. In those circumstances it is said that the Framework Directive does not require that there be an effective appeal from a decision such as that with which I am concerned in these proceedings.

5.5 Furthermore, ComReg argues that there is an inherent difference between an appeal and a review. There is no doubt that this proposition is correct at the level of principle. However, even within what might generically be called “appeals” and “reviews” there are differences as to the scope of the matters which the appellate or review body can address or alter. It is unnecessary to go beyond the appeal mechanisms available in the courts to identify that appeals can range from what might be called a full re-hearing (such as that available to the Circuit Court in respect of most decisions of the District Court and, in civil cases, from the Circuit Court to the High Court) where the facts are reviewed afresh on the basis of evidence tendered anew to the appeal court. In those circumstances no real weight is placed on the decision of the lower court. On the other hand an appeal from this Court to the Supreme Court in civil proceedings involves a limitation on the scope of a review in respect of the facts found by this Court in accordance with the principles identified in Hay v. O’Grady [1992] 1 I.R. 210.

5.6 Likewise, the judicial review jurisprudence involves a range of cases which identify the possibility that there may be some variation in the precise scope of review that may be appropriate in different types of cases (see, for example, Sweetman v. An Bord Pleanála [2008] 1 IR 277). While it is true, therefore, to say that there is a distinct difference between an appeal and a review there are within each category a range of possibilities as to the jurisdiction of the appellate or review body to come to a different view from the body whose decision is under consideration.

5.7 The problem with which I am faced is that there is no definitive ruling which, in my view, would allow me to form, with any great confidence, a view as to the appropriate basis of review that is likely to be applied in this case. The range of possibilities is wide. It would be wrong, on the basis of a relatively brief hearing at a procedural motion, to express any view as to the standard of review which the trial judge will consider appropriate in all the circumstances of this case. I cannot rule out, therefore, the possibility that the trial judge may determine that some degree of analysis of the underlying factual basis for ComReg’s decision in this case may be permissible and required within the confines of a judicial review. I am mindful in that context of decision of the European Court of Justice (“ECJ”) in cases such as Uniplex (UK) (C- 406/08) in which the ECJ determined that procedural rules in the United Kingdom (which, as it happened, were mirrored in this jurisdiction) concerning time limits for judicial review had, insofar as it was within the relevant court’s jurisdiction, to be dis-applied or moulded to ensure compliance with the European law on public procurement then under consideration. I am, of course, also mindful that the extent to which it may be permissible to mould procedural rules may not be the same as the extent to which it may be permissible to mould the question of the standard of review. There are arguments both ways on that issue. However, it does have to be noted that there are some authorities (for example my own decision in Sweetman) which imply that the standard of review in judicial review proceedings may at least be flexible enough to accommodate some of the requirements of EU law.

5.8 I have, therefore, come to the view that it is not possible at this stage to give a definitive ruling as to the standard of review which is properly applied in a case such as this. However, perhaps of even greater importance to the application with which I am now concerned, I have come to the view that there are a range of possible outcomes as to the precise basis on which the trial judge will consider it appropriate to review the impugned decision of ComReg. I do not believe that I can safely rule out, again at this stage, the possibility that at least some of the information sought to be disclosed in this application might be relevant to the court’s consideration if the court were to take a more expansive view of the basis of review. In those circumstances, it would not seem to me to be appropriate to reject O2’s application for disclosure at this stage. However, for the reasons which I have already sought to analyse, it seems to me that it would be disproportionate to allow O2 access to what is likely to be significantly confidential information at this stage against the mere possibility that some (indeterminate) part of that information might be relevant to the court’s final determination, depending on the precise view which the court takes as to the basis of review.

5.9 In those circumstances it seems to me that it is appropriate to leave over for the moment any question of disclosure and to direct a modular trial of the substantive judicial review hearing with the questions concerning the standard or basis of review and fair procedures to be determined first and all other issues to be determined, if necessary, at a second hearing. In addition, it seems to me that no disclosure should be ordered at this stage but that O2 should be given liberty to renew the application for disclosure after the standard of review issue has been determined. It seems to me that it is the judge who ultimately has carriage of the substantive trial that should then address the question of whether any disclosure is appropriate for it is that judge who will, by that time, have reached a refined view as to the precise basis of review permitted, and who will be best able to decide whether any of the disclosure now sought is really likely to have a bearing on the case. Obviously if ComReg are correct in their assertion as to the standard of review then no disclosure is required. If, and to the extent that, O2 persuade the court to adopt a higher standard of review, then the court may have to balance the information which it considers to be relevant to such a review with the confidence asserted on this application (most particularly by BT and the Minister). However, at that time the court will have a much better view not only of the relevance of any of the material sought to be disclosed, but also the extent to which any such materials are likely to have anything more than a very marginal affect on the court’s judgment. The court will, in those circumstances, be in a much better position to engage in the balancing exercise which is required by the authorities to which I have earlier referred.
6. Conclusions
6.1 It, therefore, follows that I will decline to make disclosure at this stage, but will adjourn the application for disclosure until after the first leg of the modular hearing which I am about to direct has been concluded.

6.2 I also propose to direct a modular trial at which the issue of the standard of review and the fair procedures issue, to which I have already referred, will be tried first with all remaining issues left over for a second module.

6.3 I will hear counsel as to the directions which should be put in place to ensure that that first module can be heard at the earliest possible time. As the issues are purely ones of law, it seems to me that O2 should be asked to file written legal submissions on those matters in early course with an appropriate time being given to ComReg for a response. I will then propose to make arrangements to allow for a hearing of the first module. I will also adjourn further consideration of the disclosure application to the judge who is ultimately assigned to hear that first module.

 

Flogas Ireland Ltd v Langan Fuels Ltd

[2012] IEHC 259

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 28th day of June, 2012
1. These are two related cases in which the plaintiff claims injunctions, damages and other forms of relief against the defendants arising out of the alleged use by the defendants of the plaintiffs gas cylinders in circumstances which the plaintiff alleges amount to infringement of the plaintiffs registered trademarks and passing off. The plaintiff also claims damages under various headings and other relief.

2. This application concerns a motion for discovery brought by the defendant in each case in respect of certain categories of documents where no agreement could be reached between the parties on the issue. In proceedings bearing record number [2011 No. 242 COM], the defendants seek an order for discovery in respect of the following categories of documents:

“Category 1: All documents concerning:
(a) Any assessment of market share of the total market for LPG in Ireland (including Northern Ireland) in the past six years.

(b) Any assessment of the turnover value of the entire Irish market in the past six years.

(c) Any assessment of the LPG usage as a percentage of Irish primary energy consumption in the past six years.

(d) Any assessment of the percentage of cylinder gas as a percentage of Irish primary energy consumption in the past six years.

(e) Any assessment of the Plaintiff’s market share of the cylinder market in Ireland in the past six years.

(f) Any assessment of the aforesaid market share for LPG, turnover value, usage, consumption and market share as concerns Flogas NI and the Northern Irish Market.

(g) All returns made by the Plaintiff to the Competition Authority pursuant to Article 8 of Declaration (No. D/05/001).

Category 2: All documents concerning:

(a) Listing of all outlets currently within the Plaintiff’s dealer network. (b) Listing of all distributors currently within the Plaintiff’s Distributor network.

(c) Listing of all distributors currently engaged in the filling of cylinders from supplies of bulk gas.

Category 3: All documents concerning:

(a) The Plaintiff’s procurement of butane cylinders since 1979. (b) The Plaintiff’s procurement of propane cylinders since 1979.

(c) The Plaintiff’s procurement of newly manufactured butane cylinders since 1979.

(d) The Plaintiff’s procurement of newly manufactured propane cylinders since 1979.

(…)

Category 4: All documents concerning:

(…)

(e) All customer lists as provided for by paragraph 19 of the Authorised Dealer Agreement.

(f) All forms of agreement with ‘Direct Customer Accounts’.

(g) All customer lists maintained by Authorised Distributors under clause 6.7(d) of the Authorised Distributor Agreement.

(h) Any similar agreements, price cards, forms and lists relating to cylinders placed on the market in Northern Ireland by the Plaintiff and/or Flogas Northern Ireland

Category 8: All documents concerning:

(a) The price charged by the Plaintiff for filled cylinders supplied to authorised distributors.

(b) The price charged by the Plaintiff for bulk gas delivered to authorised distributors.

(c) The price charged by the Plaintiff for filled cylinders supplied to direct accounts.

(h) The cylinder licence fees charged by the Plaintiff to Authorised Distributor under clause 7.1 of the Authorised Distributor Agreements. Category 12: All documents concerning any alleged breaches by any other supplier or retailer of LPG of property rights asserted by the Plaintiff and its associated company Flogas Northern Ireland in the past six years.”

3. In the case bearing record number [2011 No. 244 COM], the defendant seeks an order for discovery of the following categories of documents:
“Category 1: All documents concerning:
(a) Any assessment of market share of the total market for LPG in Ireland (including Northern Ireland) in the past six years.

(b) Any assessment of the turnover value of the entire Irish market in the past six years.

(c) Any assessment of the LPG usage as a percentage of Irish primary energy consumption in the past six years.

(d) Any assessment of the percentage of cylinder gas as a percentage of Irish primary energy consumption in the past six years.

(e) Any assessment of the Plaintiff’s market share of the cylinder market in Ireland in the past six years.

(f) Any assessment of the aforesaid market share for LPG, turnover value, usage, consumption and market share as concerns Flogas NI and the Northern Irish Market.

(g) All returns made by the Plaintiff to the Competition Authority pursuant to Article 8 of Declaration (No. D/05/001).

Category 2: All documents concerning:

(a) Listing of all outlets currently within the Plaintiff’s dealer network.

(b) Listing of all distributors currently within the Plaintiff’s Distributor network.

(c) Listing of all distributors currently engaged in the filling of cylinders from supplies of bulk gas.

Category 3: All documents concerning:

(a) The Plaintiff’s procurement of butane cylinders since 1979.

(b) The Plaintiff’s procurement of propane cylinders since 1979.

(c) The Plaintiff’s procurement of newly manufactured butane cylinders since 1979.

(d) The Plaintiff’s procurement of newly manufactured propane cylinders since 1979.

[…]

Category 4: All documents concerning:

[ . .]

(e) All customer lists as provided for by paragraph 19 of the Authorised Dealer Agreement.

(f) All forms of agreement with ‘Direct Customer Accounts’.

(g) All customer lists maintained by Authorised Distributors under clause

6.7(d) of the Authorised Distributor Agreement.

(h) Any similar agreements, price cards, forms and lists relating to cylinders placed on the market in Northern Ireland by the Plaintiff and/or Flogas Northern Ireland

Category 8: All documents concerning:

(a) The price charged by the Plaintiff for filled cylinders supplied to authorised distributors.

(b) The price charged by the Plaintiff for bulk gas delivered to authorised distributors.

(c) The price charged by the Plaintiff for filled cylinders supplied to direct accounts.

(h) The cylinder licence fees charged by the Plaintiff to Authorised Distributor under clause 7.1 of the Authorised Distributor Agreements.

(k) The wholesale price charged for LPG and LPOG cylinders by the Plaintiff to distributors and by the Plaintiff or its distributors to its dealers in County Waterford.

(l) The wholesale price of LPG cylinders bearing the Norgas brand recently distributed by the Plaintiff in County Waterford.”

4. Category 1: The defendant seeks discovery of these documents in view of the plaintiffs claim of loss of reputation and having regard to the reliance the plaintiff places on the nature and extent of its market share. The plaintiff agrees to make discovery except in respect of Northern Ireland on the grounds that it is not seeking any remedy in the proceedings relating to Northern Ireland and therefore does not meet the test of relevancy.
Category 2: The plaintiff contends that it has an extensive network of distributors and dealers and that through this network it exercises rights of ownership over Flogas-branded cylinders. The plaintiff also claims that its dealers and distributors have been engaged in cylinder exchange with the first named defendant and that the members of the network are suffering loss as a result of the alleged unlawful conduct of the defendant. The defendant maintains that details of the distributors and dealers are relevant to these claims and the defendants claim that through this network, the plaintiff is engaged in anticompetitive conduct. The plaintiff agrees to make discovery of a sample of documents required in para. (a) concerning its dealer network. It objects to providing more than this on the grounds that the defendant and the plaintiff are competitors and the issue of confidentiality has to be taken into account. Paragraphs (b) and (c) are agreed.
Category 3: Discovery is sought of these documents because the plaintiff claims ownership over all Flogas and its cylinders in circulation and further claims that the service charged to customers does not represent a sale price. The defendants contend that the age and cost profile of cylinders is material to whether the service charge is an artificial charge and truly represents a sale price as well as to the extent to which the cylinders acquired were new or used. The plaintiff, in support of its claim to cylinder ownership, seeks to place reliance on the cost of operating its “cylinder refurbishment programme” which the defendants contest. The plaintiff says that the pleadings do not correspond with the reasons offered for the need to make discovery of this category of documents and the discovery sought is not demonstrated on the pleadings. The plaintiff argues that there is a world of difference between the value of the cylinders and their cost and that the distinction is relevant to Category 3.

Category 4: Discovery of this category of documents is sought because the plaintiff places reliance on the documents which are referred to in support of its claim to ownership of cylinders, which claim is denied by the defendants. The defendant claims that the discovery arises from the agreements on which the plaintiff relies. The plaintiff set out in the statement of claim the custom and practice that exists, and it relies on the terms of its agreement with dealers. It argues that it has given discovery of the agreements and the defendant now wants other documents generated pursuant to such agreements. The plaintiff said it has not pleaded these documents nor does it rely on the lists referred to in Category 4. So far as Category 4(h) is concerned, the plaintiff does not seek any remedy concerning its business in Northern Ireland and such documents as relate to Northern Ireland are irrelevant to the case as pleaded.

Category 8: The defendant says that these documents are relevant in that the plaintiff has placed considerable reliance on the effect on the prices of the conduct of the first named defendant of which it complains. The defendants, for their part, complain that the plaintiff is involved in anticompetitive price maintenance. The plaintiff denies this claim. The plaintiff agrees to make discovery in respect of Categories 8(d), (e) and (f). So far as the remaining documents are concerned in that Category, the plaintiff says that they are neither relevant nor necessary to determine the matters in issue, having regard to the pleadings.

Category 12: Only applies to record number [2011 No. 242 COM]. The defendant claims that discovery of these documents is necessary as the plaintiff has alleged that it has had ongoing concerns about ”pirate” related filling of its Flogas-branded cylinders. The first named defendant, for its part, claims that the plaintiff has been engaged in a course of threatening litigation in order to restrict competition on the cylinder LPG market.

5. Insofar as some of the documents sought relate to the plaintiffs associated company, Flogas Northern Ireland, the plaintiff alleges that these documents are irrelevant as there is no claim in respect of its Northern Ireland business. The plaintiff contends that there is no reference in the defence to any issues which would make such documents relevant. It does appear, however, that para. 54(e) contains an allegation that the plaintiff has brought the proceedings for the purpose of furthering and reinforcing unlawful anticompetitive conduct including “the pursuit of similar litigation with the object and/or effect of restricting the growth of effective competition, in particular, price competition, on the cylinder LPG market in the State.” The plaintiff claims that this is a fishing exercise and does not arise out of the pleadings.
6. A general complaint is made by the plaintiff that the nature of the discovery sought is such as to require the plaintiff to furnish sensitive information in circumstances where the plaintiff and the defendants are competitors and that this is a factor to be taken into account. The plaintiff also complains that the discovery sought constitutes a fishing exercise which is not permitted by the courts and that the discovery sought is outside the terms of the pleadings and therefore irrelevant. The defendant claims that the applications are anchored in the pleadings. The defendants also claim that the identity of the plaintiff’s dealer network is not a confidential matter.
The Law
7. The plaintiff relies on the case of Hartside Ltd. v. Heineken Ireland Ltd. [2010] IEHC 3, as setting out the current law relating to discovery.

8. In the course of his judgment in that case, Clarke J. said at para. 5.1:

“(a) It was common case that the principles which a court must have regard to in an application for discovery of documents are as set out by McCracken J in Hannon v. Commissioner for Public Works (Unreported, High Court, McCracken J, 4th April, 2001), in the following terms:-

‘(1) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant.
(2) Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that O. 31, r. 12 of the Rules of the Superior Courts 1986 specifically relates to discovery of documents ‘relating to any matter in question therein’.

(3) It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other party’s documentation is not permitted under the Rules.

(4) The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties’.

That test was approved and applied by the Supreme Court, speaking through Murray J., in Framus Ltd v. CRH plc [2004) 2 IR 20.”

9. At para. 5.7 of his judgment, Clarke J. referred to the fact that there may be competing considerations which need to be taken into account on the facts of a particular case. This might include information which is highly confidential.
10. The way in which confidential documents should be dealt with in an application for discovery was considered by Clarke J. in Independent Newspapers v. Murphy [2006] IEHC 276, where he said as follows:

“4.3 I am satisfied that the court should only order discovery of confidential documents (particularly where the documents involve the confidence of a person or body who is not a party to the proceedings) in circumstances where it becomes clear that the interests of justice in bringing about a fair result of the proceedings require such an order to be made.
4.4 It is clear that confidential information (which is not privileged) must be revealed if not to reveal same would produce a risk of an unfair result of proceedings. The requirements of the interests of justice would, in those circumstances, undoubtedly outweigh any duty of confidence. There is ample authority for that proposition which now may be taken to be well settled. Where, therefore, it is clear that the materials sought will be relevant, then discovery must be made notwithstanding any confidentiality.

4.5 However, it seems to me that the balancing of the rights involved also requires the application of the doctrine of proportionality. To that extent, it seems to me to be appropriate to interfere with the right of confidence to the minimum extent necessary consistent with securing that there be no risk of impairment of a fair hearing. .. ”

At para. 5.9 of his judgment, Clarke J. stated:
“… the overall problem is one between balancing, on the one hand, the need to facilitate a party who may have a legitimate claim but who may require access to information available only to its opponent in order to fully plead and ultimately substantiate that claim, on the one hand, and the need to prevent, on the other hand, a party by making a mere allegation, from being able to have a wide range of access to its opponent’s documentation, including what may well include highly confidential documentation.”
11. The authorities suggest that a party may be required to specify legitimate bases for seeking information which is of a confidential nature because of the undesirability of allowing a mere allegation to give rise to an entitlement to access to such information. Where contested documentation is confidential, then the courts should exercise special care to ensure that a party is not given free access to such information without having satisfied the court that there is some basis on which the documentation is likely to be relevant and necessary.
12. Applying the legal principles outlined above to the discovery sought in this case, I make the following orders:-

Category 1: I will allow (a) to (f) but without any reference to Northern Ireland.
Category 2: (a) The sample of documents offered by the plaintiff to the defendant by way of discovery is sufficient. I refuse further discovery in this category on the grounds of commercial sensitivity and I am not satisfied that it is necessary for the defendant to have this information in order to defend the claim.

Category 3: I will allow (a) to (d) for a period of three years prior to the making of this order and confined to the State.

Category 4: I refuse this category on the basis that these documents do not come within the cases pleaded and are not necessary.

Category 8: I refuse discovery of the documents in this category on the basis that they are neither relevant nor necessary. Furthermore, the information is commercially sensitive and sufficient reason has not been furnished to require that they be discovered.

Category 12: I refuse the discovery sought under this category for lack of relevance on the pleadings and because it is not necessary for the proper resolution of the issues in dispute.