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Cite as: [2002] 1 ILRM 237, [2001] IEHC 82, [2001] 1 IR 653

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Brian Greene & Co. Ltd. t/a Hotel Greenhills v. Instruelec Services Ltd. [2001] IEHC 82; [2001] 1 IR 653; [2002] 1 ILRM 237 (19th February, 2001)

THE HIGH COURT

1994 No. 6640p

BETWEEN

BRIAN GREENE & CO LIMITED TRADING AS HOTEL GREENHILLS

PLAINTIFF

AND

INSTRUELEC SERVICES LIMITED NOEL LAWLOR AND BY ORDER GERRY BROUDER TRADING AS GERRY BROUDER AND ASSOCIATES

DEFENDANTS

Ex tempere Judgment of McKechnie J., 19th February 2001

1. This is the Plaintiff’s Motion wherein, as against the Defendant he seeks Discovery of certain documents. The Application is moved under Order 31 Rule 12 of the Rules of the Superior Courts. Master Hill declined jurisdiction to hear the Motion pursuant to this Rule. He did so on the basis that the letter seeking voluntary discovery was insufficiently precise, and citing the decision of the learned President of the High Court in Swords -v- Western Proteins , H.C. U/R 29/11/00, held, that he, the Master, had no jurisdiction to embark upon the Motion. This notwithstanding the fact that there was consent between the parties.

2. S.I. 233 of 1999 amended the High Court Rules on Discovery by introducing a new Rule 12 in Order 31 of the Rules of the Superior Courts. The relevant portion of rule 12 is sub-rule (4)(I) which, in its entirety, reads as follows:-

“(4) (I) An Order under sub-rule 1 directing any party or under rule 29 directing any other person to make discovery shall not be made unless:

the applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered; and
a reasonable period of time for such discovery has been allowed; and
the party or person requested has failed, refused or neglected to make such discovery or has ignored such request.

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”.

3. Apart from the Swords decision there is not, to my knowledge, any other case which has examined the meaning and applicability of this particular sub-rule. Having read that judgment it is clear, on the relevant facts as presented, that the learned President was not required to consider the aforesaid proviso which appears immediately following the conclusion of paragraph (c). This is evident from several parts of the judgment and in particular from the President’s

(a) recital of the passing correspondence between the parties,

(b) his reliance solely on paragraphs (a) to (c),

(c) his acceptance of the Defendants submission as made by Mr. Clancy BL and

(d) the ratio of his decision as set forth at pages 8 and 9 thereof.

4. The reason, in the Swords case, why the proviso was not considered was that there were no circumstances in existence which could bring any of the four criteria, therein specified, into play. Accordingly in that case a prior application in writing was essential.

5. As stated by Morris P., in the concluding section of his judgment in Swords, “..... The jurisdiction to make an Order for Discovery is confined to circumstances in which the Master is of the opinion that there has being a compliance by the Applicant....... with Order 31 12(4)(1).......”. This view is one which respectfully I entirely concur with.

6. In the instant application, the parties have consented to an Order of Discovery been made in the terms of the Notice of Motion. Accordingly I am satisfied that there has been the required compliance with the aforesaid Order and Rule - this by reason of the consent of the parties. As a result the Master, and clearly this Court, has jurisdiction to make the Order as sought, should it choose to exercise its discretion, to so do. In making such a decision the Court must be satisfied on the evidence before it that the Discovery as sought is necessary to dispose fairly of the cause or matter or to save costs. See Rule 12(3).

7. On the facts of this particular case I am so satisfied and accordingly will make an Order for Discovery in the terms of the Notice of Motion.