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Cite as: [2001] IEHC 59

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Hannon v. Commissioners of Public Works [2001] IEHC 59 (4th April, 2001)

THE HIGH COURT

1998 No. 8347P

BETWEEN

PATRICK HANNON

PLAINTIFF

AND

THE COMMISSIONERS OF PUBLIC WORKS, THE MINISTER FOR FINANCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice McCracken delivered the 4th day of April 2001 .

1. These are proceedings in which the Plaintiff, who is an engineer employed by the first Defendant, seeks a number of declaratory and injunctive relief's arising out of the hearing of certain grievances and complaints of the Plaintiff by the first Defendant pursuant to the grievance procedures in place. In addition, the Plaintiff is also claiming:-

“Damages for personal injury, loss and damage, sustained by the Plaintiff as a result of the negligence, breach of duty (including statutory duty), breach of contract and breach of the Plaintiffs constitutional rights by the Defendants, their servants or agents and damages for the reckless and wilful infliction of emotional suffering and stress.”

2. The Plaintiff sought certain interlocutory relief which was refused, but by Order dated 12th October, 1998 Kelly J. ordered that the Defendants do within four weeks of the close of pleadings make discovery on oath of the documents which are or have being in their possession or power relating to the matters in question in the action. Discovery has been made by the Defendants, and I am informed that over 3,500 documents have been discovered. This is a motion for further and better discovery of a large number of further documents as set out in the Affidavit of Eric Bradshaw, the Plaintiff’s solicitor.

3. It is accepted by both parties that the principles set out in the long standing decision of Compagnie Financiere et Commerciale du Pacifique -v- Peruvian Guano Company (1882) 11 QBD 55 are still applicable. In that case Brett L. J. said:-

“The documents to be produced are not confined to those which would be evidence either to prove or to disprove any matter in question in the action .... It seems to me that 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 .... The question must be whether from the description either in the first Affidavit itself or in the list of documents referred to in the first Affidavit or in the pleadings of the action there are still documents in the possession of the party making the first Affidavit, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring a further Affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description, it is necessary to consider what other questions arise in the action; the Court must look, not only at the Statement of Claim on the Plaintiffs case, but also at the Statement of Defence and the Defendants case.”

4. This was a case which dealt generally with what documents ought to be produced on discovery. There have been several more recent cases which have dealt with the position where an Affidavit of discovery has been sworn, in which the Deponent swears that there are no other relevant documents, and the party seeking discovery maintains there are further documents. A prime example of this is Bula Limited (in receivership) -v- Crowley and Others (1991) 1 I. R. 220. In that case Finlay C. J. quoted from the unreported judgment of Murphy J. in the High Court where he stated:-

“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.”

5. The Chief Justice than commented on this passage and said at page 223:-

“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.”

6. There are, therefore, certain matters which I must take into account in deciding whether and to what extent to grant further and better discovery. These principles could briefly be stated as follows:-

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 Order 31 Rule 12 of Superior Court Rules 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 parties 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.

7. To turn to the pleadings in this case, the Plaintiff is basically seeking relief under three headings. Firstly, he complains that the Defendants failed to appoint a mediation officer pursuant to their grievance procedures to consider his complaints. Secondly, he seeks the repayment of certain remuneration which he claims was wrongfully withheld from him and thirdly, he claims damages for personal injury due to negligence breach of duty, breach of contract and breach of the Plaintiffs constitutional rights. The personal injury referred to relates to severe anxiety and stress symptoms which are alleged to have been caused by the Defendants behaviour. The Defendants seeks to justify their refusal to refer matters to a mediation officer and bases this to some degree on the Plaintiffs failure to continue to work and indeed on the Plaintiffs general behaviour during the complaint procedures. The Defendant also denies any entitlement to remuneration and denies any negligence or breach of duty to the Plaintiff.

8. Matters are complicated considerable by allegations by the Plaintiff that the Defendant in effect required him to carry out work in an unprofessional manner and that the Defendant circulated or allowed to be circulated within the Plaintiffs place of work misinformation with regard to the Plaintiff. It is very difficult to separate the allegations being made by the Plaintiff in these proceedings from the allegations which were being considered under the grievance procedures. The Court in hearing this case cannot and should not simply take the place of the mediation officer which the Plaintiff is seeking to have appointed, for if the Plaintiff succeeds in that claim, then his grievances will be dealt with by that officer. However, matters which are relied on as being particulars of negligence or other wrong doing which gave rise to the claim for damages for personal injuries are clearly matters which are within the pleadings in this case.

9. In the light of these remarks I would turn to the specific classes of documents which are sought. These are set out in paragraphs 5 to 30 inclusive of the Grounding Affidavit of Eric Bradshaw, and I annex hereto a schedule of them with reference to the paragraphs in that Affidavit.

SCHEDULE

10. Paragraph 5 to 8 inclusive. These documents do not appear to be relevant to the issues in the pleadings.

11. Paragraph 9 and 10. These documents are discoverable, and in so far as either of them may have been mislaid, should be discovered as documents which were, but no longer are, in the Defendants possession or power.

12. Paragraph 11. These documents should be discovered.

13. Paragraph 12 and 13. These documents are not relevant to the issues.

14. Paragraph 14. These documents should be discovered.

15. Paragraph 15. If such documents exist they would be discoverable. The further Affidavit of discovery should aver that documents do not exist under this heading.

16. Paragraph 16 to 19. These documents are not discoverable.

17. Paragraph 20. These documents are discoverable.

18. Paragraph 21 to 27. These documents are not discoverable.

19. Paragraph 28. Any such documents as exist should be discovered.

20. Paragraph 29(1). Any such documents which came into existence since the contemplation of these proceedings are clearly privileged. This includes the report of Mr. Foley which I have seen.

21. Paragraph 29(2) and (3). These documents are discoverable in so far as they came into existence prior to the threat of these proceedings.

22. Paragraph 29(4) and (5). It there are any further documents under these headings they are discoverable.

23. Paragraph 30. These documents are not discoverable.