THE COURT OF APPEAL
Record No. 2015/191
Ryan P.
Peart J.
Hogan J.
BETWEEN/
IBB INTERNET SEVICES LTD., IRISH BROADBAND INTERNET SERVICES LTD. (TRADING AS IMAGINE NETWORKS) AND IMAGINE COMMUNICATIONS LTD.
Plaintiffs/Appellants
Defendant/Respondent
SUPPLEMENTARY JUDGMENT of Mr. Justice Gerard Hogan delivered on the 26th day of February 2016
1. This Ruling is supplementary to the Judgment which was delivered by this Court on7th December 2015: see [2015] IECA 282.
2. Following further communications between the solicitors for the respective parties it appears that there are three relatively minor categories of discovery which still await determination which the Court overlooked when delivering the earlier judgment.
3. The background to this dispute and the principles to be applied as far as this discovery application already have fully set out in the earlier judgment of the Court. I propose now simply to address the three remaining sub categories of discovery. It may be convenient to deal first with Motorola’s appeal against the refusal of discovery orders against the first, second and third plaintiffs.
Category 10(k): All documents evidencing recording relating to any testing carried out by the plaintiffs on the efficacy of the equipment installed by the defendant
4. On this issue Barrett J. stated:-
5. Echoing the sentiments I expressed in the principal judgment I find myself in complete sympathy with the endeavours and motives of the trial judge. I entirely share his concern lest the request under this heading would generate a multitude of largely trivial and inconsequential records, the details of which would, in all probability, remain largely unread in the course of already complex litigation. Nevertheless, there can be no doubt but that these records are relevant to the issues in the proceedings and, therefore, discovery ought in principle to be directed.
6. I further agree with the trial judge the use of the phrase “efficacy” is susceptible of a variety of different interpretations. No doubt the phrase could be interpreted with absolute literalness so as to encompass every test carried out by the plaintiffs of the WiMax network supplied by Motorola. Yet, I fear that there is really no better or alternative word that could be used and any further definition of that word is only liable to create difficulties and conclusions.
7. To that extent I would accordingly I vary the Order made by the High Court and allow the appeal in the terms sought by Motorola. But I would stress for the benefit of both parties that the documents to be included in this category of discovery ought to be approached in a reasonable and realistic fashion. Both parties well know that the test results which are sought here are those that bear on the suitability and effectiveness of the WiMax network. With that guidance the Court trusts good sense will prevail on all sides and that it is documents which are only truly relevant to this issue will ultimately be discovered.
Category 10 (r): All documents created during the period from 1st February 2010 to date and evidence and/or record of the activities of the plaintiff site procurement team in consideration given by them to the capability of the plaintiff to procure and provide sufficient number of sites to meet the accelerated deployment plan
8. In the High Court Barratt J. ruled as follows:-
“The defendant has contended that the plaintiffs lacked a sufficient inventory of sites. The defendant contends, however, that the documents to be discovered under this category should include documents that evidenced the efforts by the plaintiffs site procurement team to obtain sites in sufficient number to enable the accelerated deployment plan to be met. The Court does not accept this contention. Either there was, or there was not, a sufficient inventory of sites: it matters not that the plaintiff expanded every energy, or did nothing, to procure same. The plaintiffs have offered to provide documents that evidence the number of sites actually available to the plaintiffs, which information will put the defendant in the position of being able to make the case that the number of such sites was, for whatever reason, inadequate. The Court therefore declines to order this category of discovery but orders that the plaintiffs provide to the defendants such documents as evidence the number of sites that were actually available to the plaintiffs.”
9. At para. 257(a) of its defence, Motorola pleads that the first plaintiff was guilty of failing to procure an appropriate inventory of sites. It is accordingly clear, as Barrett J. pointed out, that the issue is whether or not there is an adequate number of sites which the first plaintiff had obtained or procured. This information either has already been handed over to Motorola or will be in the course of the discovery process.
10. It seems to me, therefore, that in the light of the issues raised in the pleadings that the further discovery sought by Motorola is not relevant. As Barratt J. pointed out, what counts for this purpose is the number of sites available and it matters not whether the plaintiff’s procurement team considered they had sufficient capacity and sufficient number of sites to meet the accelerated deployment plan. For these reasons, therefore, I would dismiss Motorola’s appeal in respect of this sub category.
Category 4(ii) a/b : Withdrawal of Invoices
11. It remains to consider Motorola’s appeal against an order for discover made in favour of the plaintiffs. The remaining category under this heading is that of category 4(ii) a/b, documents that evidence and/or record:-
12. In his judgment Barrett J. observed (albeit with reference to a wider category of similar documents than that currently at issue in this sub-category):
“This category of discovery relates to the defendant’s knowledge of the companies in the Imagine Group. The plaintiffs have pleaded and particularised their claim that the defendant was at all material times aware of the corporate structure of the Imagine Group. The plaintiffs are seeking discovery of the above category of documentation so as to enable them to counter the defendant’s defence regarding the corporate structure of the Imagine Group (whereby the defendant is seeking to defeat each claim made against it on the basis that the entity that would have suffered the loss has no valid claim against the defendant to recover that loss). If, as the plaintiffs contend, the defendant was at all times aware of the corporate structure of the Imagine Group, documents that evidence this are both relevant and necessary to many of the matters in issue between these parties. The defendant has rejected discovery of the above documentation on the basis that the claim to which this ground relates is an alternative plea and that only a primary plea can be the subject of a discovery request. This ground of objection is unappealing in logic and no supporting precedent has been offered to the court. The court therefore does not accept this ground of objection as valid. The court orders discovery of the above category of documentation.”
13. In my judgment, the discovery sought under this heading is clearly relevant to one of the central issues in the case, certainly that as pleaded by the plaintiffs. As Barrett J. pointed out in the passage just quoted, the plaintiffs contend that they traded as one economic entity and that Motorola were always aware of this fact. If that is indeed the case, then documentation (if there is such) which records this understanding of the plaintiffs’ corporate structure on the part of Motorola is accordingly relevant.
14. I would accordingly dismiss the appeal brought by Motorola in respect of this aspect of the judgment of Barrett J.
