High Court of Ireland Decisions

1. On this the Plaintiffs' application for an Order for discovery against the sixth, seventh, eighth and ninth Defendants (these Defendants) the following point falls for determination, namely, whether, in principle, at this stage in the proceedings, the Plaintiffs are entitled to discovery against these Defendants.

2. In broad terms, the proceedings relate to alleged breaches of a contract between the first Defendant, Bord Gais Eireann, and the second Plaintiff, a construction company, for the construction of the portions of the interconnector connecting the Irish and United Kingdom gas grids located on the Scottish mainland, which contract was guaranteed by the first Plaintiff. As against these Defendants, other than the Attorney General, in broad terms, the Plaintiffs claim damages for conspiracy, for inducement of breach of contract and, in relation to the application of ERDF funds, for negligence and breach of trust.

3. The state of the pleadings as between the Plaintiffs and these Defendants is as follows:-

4. Contemporaneously with delivery of their Defence, these Defendants served a Notice for Particulars on the Plaintiffs on 7th August, 1996 (the "August notice"). The Plaintiffs' replies to the August Notice were dated 20th January, 1997 (the "January replies"). Further particulars were sought by these Defendants by letter dated 3rd February, 1997 (the "February notice"). By letter dated 4th March, 1997 ( the "March replies"), the Plaintiffs replied to the February notice.

5. This motion was issued on 4th March, 1997. The first Defendant has agreed to make and is in the course of making voluntary discovery. By Order of this Court dated 27th June, 1997, which was made by consent, the second, third, fourth and fifth Defendants were ordered to make discovery and the usual cross Order was made. In a letter dated 30th September, 1996 from the Chief State Solicitor, these Defendants agreed in principle to make voluntary discovery, but, in the February notice it was indicated by the Chief State Solicitor that discovery would not be considered until proper particulars of the Plaintiffs' claim had been given.

6. The gravamen of these Defendants' objection to making discovery at this juncture is encapsulated in the following extract from the February notice, which was quoted in the Affidavit of Edmund Kent filed in opposition to this motion:-

7. Mr. Collins, on behalf of these Defendants, contended that these Defendants are entitled to know what case is being made against them before they are called on to make discovery. He contended that where, as here, the allegations are vague and the plaintiff is not able to particularise them, the Court should not direct discovery to assist the plaintiff to make his case. Furthermore, he contended that the Court should not condone a situation in which a plaintiff makes an allegation of conspiracy against a defendant and, in response to a Notice for Particulars, the plaintiff says he cannot identify the conspirators but will do so after discovery of documents.

8. In order to test the validity of these Defendants' objection, I propose looking at just one of the allegations made by the Plaintiffs and at the manner in which it is dealt with in subsequent pleadings. I am satisfied that this example is representative of the Defendants' contention that the Plaintiffs' claim against them is inadequately pleaded. The sequence is as follows:-

9. There the matter rests, although Mr. Kilty, Counsel for the Plaintiffs, informed the Court that the Plaintiffs are now in a position to furnish and intend to furnish further particulars in response to these Defendants' requests.

10. Mr. Collins, on behalf of these Defendants, referred the Court to the decision of this Court (Morris J.) in The Law Society -v- Rawlinson and Hunter (a firm) in which judgment was delivered on 24th July, 1995. In those proceedings, the plaintiff alleged that the defendants were negligent in the manner in which they carried out their function and discharged their duties as reporting accountants to a solicitor's practice in respect of which the plaintiff was facing very substantial claims against its compensation fund. An Order for discovery was sought before delivery of the Statement of Claim. In his judgment, Morris J. stated that it was well settled that, while there is power vested in the Court to make an Order for discovery under Order 31, Rule 12 of the Rules of the Superior Courts, 1986 prior to delivery of the Statement of Claim, such an Order should only be made in the most exceptional circumstances. Having reviewed the authorities and outlined the facts of the application before him, he concluded that there were circumstances and facts in the case under consideration which would render it an exceptional case which would warrant exceptional treatment and he affirmed the Order of the Master ordering discovery before delivery of the Statement of Claim. One of the points Morris J. emphasised was that the plaintiff in that case was in possession of such information as would enable it to prepare and deliver a Statement of Claim reflecting the basic ingredients of the case it wished to make, that there existed a stateable case capable of being pleaded in general terms.

11. In my view, when this motion was issued, as the example I have set out above amply demonstrates, the Plaintiffs had pleaded their claims against these Defendants with sufficient clarity to ensure that these Defendants knew the claims being made against them and the issues between the Plaintiffs and these Defendants had been established. While I express no view as to whether the Plaintiffs have adequately particularised their claims in response to these Defendants' requests for further particulars, I have no doubt that on the present state of the pleadings the Plaintiffs are entitled to an Order for discovery against these Defendants.