High Court of Ireland Decisions

1. This is an appeal by the Respondents against an Order for non-party or, as it is sometimes referred to, Notice Party Discovery, made by the Master of the High Court on the 28th February, 1997 under Order 31 Rule 29 of the Rules of the Superior Courts in the terms of the Applicant's Notice of Motion dated the 22nd January, 1997.

2. The background to this appeal, as it appears to me to be relevant to the issues which I have to decide, is that the substantive proceedings were commenced by Plenary Summons issued on the 5th April, 1995; the Plaintiff's claim arising from the countermanding by the Defendants of five separate cheques which had been drawn on the account of the first named Defendant at the branch of the Trustee Savings Bank Plc at Dundrum,

3. Co. Dublin, the Plaintiff having permitted funds to be drawn as against those uncleared cheques in the sum of £244,544.00. In the course of the substantive proceedings, the Plaintiff sought non-party, or Notice Party, Discovery against the Trustee Savings Bank Plc. to which no objection was raised and an Affidavit of Discovery was duly sworn on the 8th August, 1995 and filed on behalf of the Trustee Savings Bank in compliance with an Order in that behalf made by the Master of the High Court on the 21st July, 1995. In that Affidavit, documents relating to three separate accounts were discovered, namely;

4. In the said Notice of Motion dated the 22nd January, 1997, the Applicant sought non-Party, or Notice Party Discovery, in respect of the matters detailed at paragraph 1(A) to (K) inclusive therein and, for their part, the Respondents, the Trustee Savings Bank plc., dispute the Applicant's entitlement to discovery of the documents detailed in paragraph 1(A) of the said Notice of Motion on the grounds that there is no account in the name of Alan Graham bearing account number 990617-29938360 at its branch at Clondalkin in the City of Dublin, their entitlement to discovery of the documents detailed at paragraph 1(G) and (I) of the said Notice of Motion on the grounds that those documents are not defined with sufficient precision to enable the Trustee Savings Bank plc to ascertain whether it has complied with its discovery obligations and the documents detailed at paragraph 1(C) and (H) of the said Notice of Motion on the grounds that those documents are not relevant to any matter in question on the said issue between the Plaintiff and the said Alan Graham. In all other respects, however, the Trustee Savings Bank Plc. has indicated to me that it has no objection to making further Non-Party, or Third Party Discovery, in the terms sought in the said Notice of Motion dated the 22nd January, 1997 and included in the said Order of the Master of the High Court dated the 28th February, 1997. However, the Respondents, Hatley Company Limited and Alan Graham, dispute the entitlement of the Applicant to discovery of all of the documents detailed at paragraph 1(A) to (K) inclusive in the said Notice of Motion dated the 22nd January, 1997 on the grounds set out at paragraph 7 of an Affidavit of one Kirby Tarrant, Solicitor for the said Respondents, sworn herein on the 28th day of February, 1997. I will refer to those grounds with greater particularity later on in this judgment.

5. In a judgment of the Supreme Court given in a case of Allied Irish Banks Plc. and Allied Irish Banks (Holdings and Investments) Limited, Plaintiffs, -v- Ernst & Whinney, Defendant, and The Minister for Industry and Commerce, Notice Party , (1993 1 I.R. at page 376) it was decided that there was an onus on an applicant for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts to establish, firstly, that the party from whom discovery is sought is likely to have or to have had the documents sought to be discovered in his possession, custody or power and, secondly, that the documents sought to be discovered are relevant to an issue arising or likely to arise out of the cause or matter in respect of which discovery is sought. In that case, the Supreme Court further decided that, in an application for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts, even after it has been established to the satisfaction of the Court that the person against whom discovery is sought has, or is likely to have, in his possession, documents which are relevant to an issue arising, the Court still has a further discretion to refuse the application if it considers that particular oppression or prejudice will be caused to the person called upon to make discovery which is not capable of being adequately compensated by the payment by the party seeking discovery of the costs of the making thereof. Nevertheless, in that case, the Supreme Court emphasised that, whatever discretion the Courts may have with regard to an application for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts, the basic purpose and reason for the procedure of discovery was to ensure as far as possible that the full facts concerning any matter in dispute before the Court was capable of being presented to the Court by the parties concerned so that justice on full information, rather than on a limited or partial revelation of the facts arising in a particular action, may be done. In this connection, in the course of the arguments before me, I was referred to another decision of the Supreme Court given in a case of Patrick Murphy, Plaintiff, -v- Anthony M. D. Kirwan, Defendant, (1993 3 I.R. at page 501) and it was submitted that, in the light of that judgment and notwithstanding the decision of the court in Allied Irish Banks Plc. and Allied Irish Banks (Holdings and Investments) Limited -v- Ernst and Whinney aforesaid, when, on an application for Non-Party, or Third Party Discovery, it is intimated, as the Plaintiff has intimated in these proceedings, that a party to the cause or matter in respect of which discovery is sought has been guilty of fraud, or other malpractice, then the application for discovery should be granted irrespective of the relevance of the documents sought to be discovered or any oppression or prejudice which may be caused to the person called upon to make such discovery. In my opinion, the decision of the Supreme Court given in Patrick Murphy -v- Anthony M.D. Kirwan does not, in any way, alter or admit to exceptions to the principles laid down by that Court in Allied Irish Banks Plc and Allied Banks (Holdings and Investments) Limited -v- Ernst & Whinney . In the case of Patrick Murphy -v- Anthony M.D. Kirwan , the Court was concerned with the question of legal professional privilege and, in particular, as to whether or not the general rule that communications between a client and his legal advisors were privileged admitted to an exception in the event that one of the persons concerned had been guilty of conduct of moral turpitude; an exception which the Court, in fact, recognised. However, in my opinion, the decision of the Court in Patrick Murphy -v- Anthony M.D. Kirwan does not recognise an exception to the rule laid down in Allied Irish Banks Plc and Allied Banks (Holdings and Investments) Limited -v- Ernst & Whinney that documents sought to be discovered pursuant to Order 31 Rule 29 of the Rules of the Superior Courts was to be relevant to the issue in respect of which those documents are sought to be discovered. notwithstanding that one of the parties to that issue may be alleging fraud on the part of another party thereto. Accordingly, in adjudicating upon this appeal, I have only concerned myself with whether or not the Trustee Savings Bank Plc. is likely to have or to have had the documents sought to be discovered in their possession, custody or power, as to whether or not any particular oppression or prejudice will be caused to the Trustee Savings Bank Plc which is not capable of being adequately compensated by the payment of costs should they be required to make such discovery and as to whether or not the interests of justice require that I should make the Order for Discovery sought.

6. In the light of the foregoing, with reference to the Applicant's Notice of Motion herein dated the 22nd January, 1997 my opinion with regard to the documents sought to be discovered is as follows;

7. The foregoing Orders are made on the usual basis under the provisions of Order 31 Rule 29 of the Rules of the Superior Courts that the Applicant should indemnify the Respondents in respect of the costs they incur.