High Court of Ireland Decisions

Ryanair Plc v. Aer Rianta Cpt [2002] IEHC 86 (25 July 2002)

THE HIGH COURT

                                                                                 Record No. 1999-9764P

BETWEEN

RYANAIR PLC

                                                                                 PLAINTIFFS

AND

AER RIANTA CPT

                                                                                 DEFENDANTS

JUDGMENT of Mr. Justice Vivian Lavan delivered the 25^th day of July, 2002

                  The provisions of Order 31 Rule 12 of the Rules of the Superior Court were amended by the provisions of statutory instrument No 233 of 1999 entitled “RULES OF THE SUPERIOR COURTS (2) (DISCOVERY) 1999, on the 3rd August, 1999.

                  Order 31 of the Rules of the Superior Courts is extensive in its provisions and I view this application in the overall context of an Order which runs to some 29 rules.  It is defined as an Order dealing with “Interrogatories, DISCOVERY AND INSPECTION”.

                  The rules making committee of the High Court, being cognisant of the abuses that an Order for Discovery (without limitation) may have, were responsible for bringing into effect the above statutory instrument.  As Morris P said, in the Swords case (Unreported, High Court, Morris P., 29th November, 2000) :-

                  “As has been pointed out by the court on a number of occasions Discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve the Discovery of a dozen documents.  In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable”.

                 

                  I wholeheartedly subscribe to that proposition.  How often have I been buried in reams of paper, necessitating the use of trolleys to bring into Court mountains of paper to enable me arrive at a decision - when sight was lost of the twelve essential documents referred to by Morris P.

                  In this case there is a challenge to the decision to Morris P.’s judgment by virtue of the general perception as to its effect on discovery.  Therefore it seems to me that I ought to consider that judgment as delivered on the 29th November, 2000.  I note with some small sense of irony that it is one year to the day since same was delivered. 

                  There are two aspects of the judgment I ought to immediately deal with and clarify:- mainly, Order 31 Rule 12 of the Rules of Superior Court in substitution for the existing Order 31 Rule 12 as follows

1.                (1)      Any party may apply to the Court by way of Notice of Motion for an Order directing any other Party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein.  Every such Notice of Motion shall specify the precise category of documents in respect of which discovery is sought and shall be grounded upon the Affidavit of the party seeking such an Order of discovery

                           (a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

                           (b) furnish the reasons why each category of documents is required to be discovered.

On this point Mr. Shipsey, counsel for the plaintiff, refers me to page eight of the judgment in which the following appears, namely that the statutory instrument imposed a

                “clearly defined obligation upon a party seeking discovery to pin point the documents or categories of documents required”.

 

                Patently that overstates the amended rule which is defined as follows

                “shall specify the precise categories of documents in respect of which discovery is sought.”

 

                Secondly at page 12 of the said judgment there is a reference to the circumstances in which the Master is of the opinion that there has been a compliance by the applicant with Order 34. 12(4)(1).  Patently that ought to be a reference to Order 31. Rule 12( 4) (1) of the Rules of the Superior Courts.

                I now turn to the judgment in the Swords Case. 

                The specific rule was amended on the 3rd August, 1999.  In the Swords case, the plaintiff claimed he was in the employment of the defendants on the 8th July, 1997 at their meat processing plant at Ballyhaunis, Co. Mayo and alleged negligence against the defendant.

                On the 29th November, 1999, three months after the aforesaid rule was amended, the plaintiff’s Solicitor wrote to the defendant’s Solicitor asking them to make discovery of certain classes of documents.

                The judgment of the President is very clear at this point.  There was not compliance with the new rule.  The rule is specific, it requires that the applicant for discovery shall have

1.              Previously applied in writing requesting that discovery be made voluntarily,

2.              Specifying the precise categories of documents in respect of which discovery is sought, and

3.              Furnishing the reasons why each category of documents is required to be discovered, and

4.              Having allowed a reasonable period of time for discovery, and

5.              The party or person requested having failed, refused or neglected to make such discovery or having ignored such request.

                It seems to me for completeness sake to set out the concluding portion of that statutory instrument in the following terms

                “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.”

 

                On the consideration of the foregoing I am satisfied that the President was dealing with this specific case as a case which did not comply with the terms of the new Order 31 Rule 12.

                In my view what the above decision decided was that the application for discovery must be in compliance with Order 31 Rule 12.  I am of the view that it did not change the substantive law of discovery.  Its states however that the discovery procedure is to be given effect to and goes no further.

                Turning to the instant case before me the following submission was made on behalf of the plaintiff.

1.The legal submissions set out in brief the case law that the plaintiffs submit is relevant to the instant Discovery application and seeks to apply these principles to the circumstances of this case.

2.Order 31, Rule 12 of the Rules of the Superior Courts (“R.S.C”) provides that a party may apply to the Court for an Order directing parties to make Discovery of documents which are or have been in his possession, custody or power.  Order 31 Rule 12 has been amended by S.I. No 233/1999 which requires that a Notice of Motion seeking Discovery shall specify the precise categories of documents in respect of which Discovery is sought and that the Affidavit grounding the Motion shall verify:

a.That the Discovery of documents sought is necessary for disposing fairly of the cause of matter or for saving costs; and

b.Furnish the reason why each category of documents is required to be Discovered.

3. Order 31, Rule 12 (3) provides that an Order shall not be made if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

4. This change in the Rules was prompted by the decision of Mr Justice Lynch in Brook Thomas Limited v. Impact Limited [1999] 1 ILRM 171.  In that case, the Supreme Court held that the meaning of “relating to” as referred to in Order 31, Rule 12 (1) had been enlarged to include any document that “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 ... or which may fairly lead him to a train of inquiry, which may gave either of these two consequences”.  In this respect reference was made to the case of Peruvian Guano Company (1882) 11 QBD 55, p. 62.

5. This passage has been cited with approval by the Irish court on many occasions, most recently in the judgment of Mr Justice Herbert in Spring Grove Service (Ireland) Limited v. O’Callaghan & Ors, (Unreported, H.C. Herbert J., 31st July, 2000).  In that judgment, Mr. Justice Herbert noted that the judgment of Brett LJ dealt not only with the question of Discovery, but also with the question of further Discovery.

6. Mr Justice Lynch also suggests that the Superior Courts Rules Committee might consider changing the Rules so as to require an Affidavit before Discovery is ordered.

7. In the recent decision of Swords v. Western Proteins Limited, judgment of Mr Justice Morris of 29th November, 2000, the President sets out the reasons for the change in Rules.  He held that “the new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to note the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be Discovered was valid.  He would then be in a position to know if he was required to comply with the request.  If he disputed his obligation to make Discovery the Court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed that the documents sought to be discovered might have to dispose fairly of the cause or save costs.”

8. Thus the purpose of the Rules was not to cut back the ambit of Discovery, but to make the process of Discovery more manageable and to net the issues.

9. In Wallace Smith Trust Co. Ltd. [1996] 4 All ER 403, it was held that where there was no claim of confidentiality or public interest immunity or objection on the ground of privilege, the Court follows a relaxed practice and allows production on the basis of relevance.  It went on to say that this “is sensible, bearing in mind the extended meaning given to relevance” in Peruvian Guano.  It continued that where confidentiality or other grounds of objection arose, it was necessary to decide whether inspection was necessary for the fair disposal of the action.  In the instant circumstances no claim of confidentiality, public interest immunity or particular claim as to privilege has been raised by the sixth, seventh or eight defendant.  However, the case law in respect to the meaning of ‘necessary’ is of some assistance.  In Taylor v. Anderton [1995] 2 All E.R. 420, Mr Justice Bingham stated that

"the meaning of the expression “disposing fairly of the cause or matter”.  These words direct attention to the question whether inspection was necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment is the test.”

 

10. In the instant case, the defendant is objecting to the plaintiffs' request for documents, if discovered, would assist the plaintiffs in making their case that Articles 81 and/or 82 EC Treaty and Section 4 and/or Section 5 of the Competition Act, 1991 have been breached by the defendant, that its economic interests have been interfered with and that it has damaged the business and reputation of the plaintiffs.

 

11. The plaintiffs submit that in a case such as the present, whereby its very nature the activities of the defendants will be covert and hidden, it is necessary in order to dispose fairly of the matter that the defendants ought to be obliged to Discover documents which provide them with a litigious advantage. The converse argument is that to deny the plaintiffs Discovery of documents which clearly establish a breach of Irish and/or EC competition rules, during the period while the plaintiffs were attempting to compete with the defendants, would be to impose an unfair disadvantage in the litigation on the plaintiffs.

12. The plaintiff submits that its submissions in this respect are supported by the decision of Mr Justice Kelly in Cooper Flynn v. RTE, (Unreported, High Court, Kelly J. 19th May, 2000).  In this case, the plaintiff alleged that the defendants had libelled her, and in particular had advised a particular individual, Mr Howard and other unnamed investors to participate in an investment scheme which had as its purpose the evasion of tax liabilities in the State. The defendant pleaded justification, i.e. that the words were true. Discovery was made by a non-party, NIB of 65 client files. The names of those clients were deleted. Mr Justice Kelly was asked to permit the defendants to obtain the documents with the names of the clients. The bank objected on the grounds that a Discovery application could not be used to obtain information to ground a plea of justification and that the Discovery was in the nature of a fishing expedition for the purpose of obtaining witnesses who could substantiate the justification plea. The defendants replied that it would be invidious and unreasonable that the plaintiff should be allowed to defeat a defence of justification by the defendants having to rely on the at present limited evidence which they may be in a position to adduce. If the defendants were not permitted to obtain client names, they would be significantly disadvantaged to the extent of being denied a fair trial. The defendants submitted that procuring the names of the clients would confer a definite litigious advantage on the defendants and their continued concealment would confer a significant litigious advantage on the plaintiff.

13. Mr Justice Kelly referred to the decision in Science Research Council v. Nasse [1979] 3 All ER 673 where Lord Salmon held, inter alia, "what does ‘necessary’ mean? It, of course, includes the case where the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order, but it is not confined to such cases. Suppose for example a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection."  Applying those principles, Mr Justice Kelly concluded that knowledge of the identity of the customers would confer a litigious advantage upon the defendants and that to deny them this entitlement would not be conducive to the fair disposition of the action. He went on to say that it had to be borne in mind that the plaintiff had full knowledge of both the identity and the commercial affairs of her clients, whereas the defendants had only a very limited knowledge of the identity of such persons.

14. It is the plaintiffs' submission that the same considerations apply in the instant case. The defendants have a full knowledge of whether or not they participated in activities contrary to Irish and EC competition law. The plaintiffs on the other hand, must by necessity have a limited knowledge of such activities given the nature of these activities and the particular documents generated. It is unlikely that any plaintiff will be in a position to have more than a limited knowledge of such activities and the documents created. Documents establishing the existence and operation of activities in breach of Irish and EC competition rules would undoubtedly confer a litigation advantage on the plaintiffs. In those circumstances the plaintiffs submit that they are entitled to such documents should they exist.

15. The plaintiffs submit that their submissions as to the special circumstances of competition cases are reinforced by the decision of Aerozip [1973] FFR 580. In this case, an action for infringement of a patent, the defendants pleaded that the plaintiffs were not entitled to the reliefs sought by virtue of Articles 85 and 86, EC Treaty. The defendants demonstrated that the EC Commission had initiated proceedings in respect of the plaintiffs' behaviour. The plaintiffs provided particulars of their plea, but such particulars were in general terms. The defendants made it clear when giving those particulars that they were unable to give better particulars until after Discovery and they sought Discovery before Mr Justice Graham. He held "in my judgement, this is not an unreasonable request in the circumstances, since it is clear that the facts of the plaintiff's conduct must be very largely within their own knowledge and not within the knowledge of the defendants ". He referred to the decision by the Commission to institute proceedings and held that he was entitled to assume that the defendants were justified in contending that there was a good reason for their plea in respect of Articles 85 and 86. He went on to say that

"the defendants were in the circumstances justified in saying that they were unable to give further particulars until after Discovery. This is a state of affairs which frequently happens when the detailed information of the facts is primarily within the knowledge of the opposing party only.  It is well recognised by our law".

I quote from Bowen L.J. in Millar v. Harper where he says

“It is good practice and good sense that where the defendant knows the facts and the plaintiffs do not, the defendants should give Discovery before the plaintiffs deliver particulars.”

16. In the plaintiffs submission, this case is relevant for two reasons. First, it establishes that Discovery may be used to ascertain information which will then be pleaded against a party in further and better particulars. This presupposes that the information has not already been alleged by the plaintiff in its particulars and therefore confirms that Discovery is not available only in respect of matters which have been pleaded with particularity.

 

1. These outline written submissions are made on behalf of the defendant in response to a motion for discovery issued on behalf of the plaintiff.

 

2. The plaintiff's motion was issued on 8 February 2001 and is grounded on an Affidavit sworn by Eamon Gill on 7 February 2001. The motion was issued pursuant to a request for voluntary discovery sent by the plaintiff's solicitors by letter dated 22 December 2000.  Following earlier correspondence, the plaintiff's letter seeking voluntary discovery was responded to in detail by the defendant's solicitors by letter dated 16 February 2001. That letter is exhibited to an Affidavit sworn by Eve Mulconry on behalf of the defendant on 30 March 2001 (exhibit "EM1" to Ms. Mulconry's Affidavit). The plaintiff purported to amend its letter seeking voluntary discovery (in a number of respects) by a further letter dated 14 March 2001 in response to the defendant's letter of 16 February 2001 sent more than one month after the motion issued. The grounds on which the defendant seeks to resist the discovery sought on behalf of the plaintiff are set out in detail in the defendant's solicitors' letter of 16 February 2001.

 

3. The plaintiff seeks discovery of fifteen principal categories of documents. However, one of those categories (paragraph (v) of the Notice of Motion) contains no less than fifteen sub-categories of documents. Paragraph (xiv) of the plaintiff's Notice of Motion seeks discovery of a further five subcategories of documents. In all there are approximately thirty-three categories of documents sought by the plaintiff by way of discovery.

 

4.  It may be helpful to summarise the defendant's response to the discovery sought by the plaintiff at this stage:

(1) The defendant maintains that the plaintiff's request for voluntary discovery made in the letter of 22 December 2000 (as purportedly amended by the plaintiff's letter of 14 March 2001) was not in compliance with the provisions of Order 31 Rule 12 of the Rules of the Superior Courts (as substituted by the Rules of the Superior Courts No.2) (Discovery), 1999 (S.I. No. 233 of 1999). The letter seeking voluntary discovery does not specify with sufficient precision the categories of documents in respect of which voluntary discovery was sought. Therefore, in accordance with the decision of Morris P. in Swords v Western, Proteins Limited, the plaintiff's motion has been improperly brought and the Court has no jurisdiction to order discovery on foot of that letter. A new letter was required. The plaintiff was invited in the defendant's solicitors letter of 12 February 2001 to reformulate its request. The plaintiff declined to do so.

 

(2) If, contrary to the above submission, the Court has jurisdiction to entertain the plaintiff's motion for discovery, discovery ought not to be granted in that:

          (i) The descriptions of many of the documents are vague and imprecise and do not satisfy the requirements of Order 31 Rule 12 (as amended) in that the motion does not specify the "precise" categories of documents as required by the Rules (as amended).

          (ii) The reasons given for requiring discovery are inadequate and fail to comply with the provisions of Order 31 Rule 12(1) and (3) (as amended). The plaintiff has failed to establish that the documents sought are (in some cases) relevant and (in all cases) necessary "either for disposing fairly of the cause or matter or for saving costs".

(3) The discovery requested by the plaintiff amounts to no less than a "fishing expedition". The plaintiff appears to have gone through the pleadings and sought discovery of every conceivable category of documents without reference to whether it is necessary to obtain such discovery in order to advance its claim. Moreover, the plaintiff has sought discovery of documents which could not be relevant to any issue raised in the pleadings in their current state.

(4) In respect of some of the categories of documents (and, in particular, many of the categories referred to in paragraph (v) of the Notice of Motion), the plaintiff seeks discovery by reference to entirely new matters which the plaintiff sought to introduce into the proceedings by way of purported "additional particulars" by letter from the plaintiff's solicitors dated 15 December 2000. This letter predated the plaintiff's request for voluntary discovery by one week and is clearly an attempt improperly to expand the scope of the discovery sought from the defendant. The defendant contends that it is not open to the plaintiff to seek to introduce such matters by way of "additional particulars". The plaintiff ought to have applied to amend its Statement of Claim. In relation to many of the matters sought to be introduced by way of the "additional particulars" in the letter of 15 December 2000, the defendant has contended that such matters are statute barred as having allegedly arisen more than six years prior to the commencement of these proceedings in September 1999. In one case the events complained of date back to the 1960's. In another case the plaintiff complains of matters alleged to have occurred in 1991 and in 1984. The defendant contends that the Court would not permit the plaintiff to amend its Statement of Claim to introduce entirely new matters which are statute barred and that a fortiori, the Court ought not to permit the plaintiff to seek discovery of such matters.

(5) The defendant requested the plaintiff to reformulate its request for voluntary discovery in a manner which complies with the Rules of the Superior Courts. However, notwithstanding that invitation and notwithstanding that the plaintiff's solicitors purported to amend the letter of voluntary discovery on 14 March 2001, such amendments were not of a substantive nature and the plaintiff refused to reformulate its request for voluntary discovery.

 

5. It is proposed to address the plaintiff's request for discovery under the following sections dealt with below:

(1) The history of the proceedings.

 

(2) The legal principles applicable to the plaintiff's application for discovery.

 

(3) The categories of documents sought by the plaintiff.

 

6. Notwithstanding that the plaintiff has been invited to reformulate its request for voluntary discovery, it has not done so. The defendant has confirmed in correspondence that it is prepared to make appropriate discovery. The defendant awaits a proper letter seeking voluntary discovery.

 

7.  The proceedings were commenced by a Plenary Summons which was issued on 30 September 1999. As appears from the Plenary Summons, the plaintiff sought injunctive relief restraining certain construction works being carried on near its check-in desks at Dublin Airport and also sought to restrain the defendant, its servants or agents or contractors from interfering with check-in desks and baggage belts used by the plaintiff at Dublin Airport. The plaintiff sought declaratory relief that the defendant's action were contrary to Articles 81 and 82 of the Treaty of Rome and/or Sections 4 and 5 of the Competition Act, 1991. The plaintiff then sought damages on various different grounds. However, from the Plenary Summons it was clear that the sole concern of the plaintiff at that stage were the construction works carried on by the defendants at Dublin Airport. The purpose of the construction works was to facilitate the extension of the main terminal building.

 

8. On the same day proceedings were commenced the plaintiff sought interlocutory relief. The interlocutory relief sought by the plaintiff was confined to relief restraining the construction works and restraining the defendant from interfering with the plaintiff's check-in desks and baggage belts at Dublin Airport. Detailed and lengthy Affidavits were sworn on behalf of the plaintiff and on behalf of the defendant for the purpose of the plaintiff's interlocutory application. It was contended on behalf of the defendant that as part of the construction works which were necessary the plaintiff was required to move on a temporary basis the location of its check-in desks with a consequent reduction from fifteen desks to twelve desks. The plaintiff was also to be required to move from one baggage belt which it used to another with a similar capacity and temporarily to move its ticket office. It was alleged by the plaintiff that the defendant gave preferential treatment to Aer Lingus in relation to facilities available to it during the course of the construction works. The interlocutory injunction application was ultimately settled on terms in October 1999.

 

9. A Statement of Claim was then delivered on behalf of the plaintiff on 22 November 1999. As appears from the Statement of Claim, the plaintiff's claim against the defendant mushroomed and was greatly expanded when compared with the complaints made in the Plenary Summons and in the Affidavit sworn for the purpose of the interlocutory injunction application which, as already indicated, were confined to the issues concerning check-in desks and baggage belts. In the Statement of Claim the plaintiff sought to expand its claim beyond the issue of check-in desks and baggage belts (which are dealt with in paragraphs 1 to 12 of the Statement of Claim). At paragraph 13 of the Statement of Claim the plaintiff introduced a whole range of new complaints against the defendant in relation to Dublin Airport (and two in relation to Shannon Airport) which were not raised in the Plenary Summons or in the plaintiff's application for interlocutory injunction.

 

10. By way of example at paragraph 13 of the Statement of Claim the plaintiff alleged that the defendant acted in abuse of a dominant position or otherwise in an anti competitive manner in relation to many matters such as in:

 

(1) Introducing and subsequently increasing a fuel levy on all carriers at Dublin Airport;

 

(2) Requiring the plaintiff (and other airlines) to use a computerised check-in system at Dublin Airport known as CUTE (Common User Terminal Equipment);

 

(3) Discriminating against the plaintiff in relation to the extension of its hangar space at Dublin Airport;

 

(4) Discriminating against the plaintiff in relation to arrangements in place for using and paying for facilities at Pier A in Dublin Airport;

 

(5) Discriminating against the plaintiff in relation to VIP lounges and car parking;

 

(6) Discriminating against the plaintiff in relation to its third party handling arrangements at Shannon Airport in 1995;

 

(7) Discriminating against the plaintiff by allegedly not using the plaintiff's services for business travel for the defendant's staff;

 

(8) Discriminating against the plaintiff In relation to clamping and vehicle recovery services for the plaintiff's staff in Dublin Airport.

 

11. In the Statement of Claim and in particulars subsequently furnished the plaintiff has sought to turn its claim in these proceedings into a sort of Tribunal of Inquiry into the operation by the defendant of Dublin Airport (and in relation to two matters, Shannon Airport). No complaint was made by the plaintiff in the Statement of Claim or any of the particulars (including the purported "additional particulars" sent by letter dated 15 December 2000 in relation to Cork Airport although the plaintiff has sought discovery of documents relevant to Cork Airport (paragraph (iv) of the Notice of Motion).

 

12. The defendant sought particulars of the plaintiff's claim. While particulars were originally furnished by the plaintiff on 26 April 1999, the plaintiff refused to furnish replies to a further Notice for Particulars dated 14 June 2000. The plaintiff was ordered by the High Court by Order dated 16 February 2001 to furnish certain of the further replies sought by the defendant.

 

13. A full Defence was filed on behalf of the defendant on 13 December 2000.

 

14. After the Defence was filed, the plaintiff sought to adduce "additional particulars" in a letter from the plaintiff's solicitors dated 15 December 2000. That letter predated by seven days the plaintiff's request for voluntary discovery which was made by letter dated 22 December 2000. That letter contained the following introduction:

"The plaintiff has been made aware of the following additional information since the plaintiff delivered its Replies to Particulars. Please note that the additional information will be relied upon by the plaintiff as setting forth additional particulars of its claim and more detailed particulars justifying the discovery sought":

 

15. The letter of 15 December 2000 was, clearly therefore, sent for the purposes of further expanding the scope of the discovery to be sought by the plaintiff against the defendant. However, in that letter the plaintiff sought to introduce a number of entirely new issues which had not previously been raised in the Statement of Claim or in the Replies to Particulars previously furnished. Many of the new matters which the plaintiff sought to introduce into the proceedings in the letter of 15 December 2000 are alleged to have occurred more than six years prior to the commencement of the proceedings. For example, one of the matters referred to in paragraph (b) is alleged to have occurred in the 1960's. Another matter referred to in that paragraph is alleged to have occurred in 1984. The matter referred to at paragraph (a) of the letter is alleged to have occurred in 1991.

 

16. The defendant contends that it is not open to the plaintiff to seek to introduce such "additional particulars" by way of letter and in the absence of seeking an amendment of its Statement of Claim. If the plaintiff were to seek to amend its Statement of Claim to introduce the matters referred to in the letter of 15 December 2000, the defendant would oppose any such amendment on the grounds that any alleged cause of action arising from such matters would have been statute barred on 30 September 1999 when the plaintiff's claim commenced. In other words this is not a case where it is alleged that the claim has become statute barred in the period between the date of commencement of the proceedings and the date on which any amendment might be sought. The defendant's contention is that those matters were already statute barred when the proceedings commenced. In those circumstances the defendant would oppose an amendment to the Statement of Claim on the grounds that many of the matters sought to be introduced are statute barred and no useful purpose would be served in permitting the plaintiff to introduce such matters into the Statement of Claim when the defendant could successfully rely on its plea that the claim is statute barred.

 

17. If the matters sought to be introduced by the plaintiff in the letter of 15 December 2000 require amendment to the Statement of Claim as contended by the defendant, then this is all the more reason why it is inappropriate for the plaintiff to seek to rely on such matters in the "additional particulars" to justify a claim for discovery in respect of documents relating to those matters (for example, paragraphs (v) (d), (e) and (f)). The defendant's solicitors objected to the plaintiff's attempted reliance on the letter of 15 December 2000 to ground its claim for discovery in their letter of 16 December 2001. This compliant has never been satisfactorily addressed by the plaintiff's solicitors and no application to amend the Statement of Claim has ever been brought.

 

18. The principles applicable to discovery have been significantly altered by the Rules of the Superior Courts (No. 2) (Discovery), 1999 (the "1999 Rules") (S.I. No. 233 of 1999) which amended Order 31 Rule 12 of the Rules of the Superior Courts.

 

19. The 1999 Rules have been considered in a number of recent decisions including Swords v Western Proteins Limited and Burke v D.P.P. (Unreported, Supreme Court, 21st June, 2001).  However, before looking at the position under the 1999 Rules it might be helpful to refer to some earlier Irish decisions which demonstrate the requirement that the party seeking discovery must ensure that the documents sought are relevant to the matters at issue in the proceedings and necessary for the disposal of those proceedings and that discovery sought may constitute a "fishing expedition". It is clearly established by the authorities that the discovery sought must be referable to pleaded issues. This is, of course, now subject to the 1999 Rules. As can be seen from the Notice of Motion and the plaintiff's request for voluntary discovery the same cannot be said for the discovery sought by the plaintiff in this case.

 

20. The defendant will refer and rely on a number of Irish decisions on that issue.

 

21. In Bula Limited (In Receivership) v Crowley, [1991] 1 I.R. 220 in an application for further and better discovery, Finlay CJ observed that:

"... any order for further discovery ... should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation"'

 

22. In Allied Irish Banks plc. v Ernst & Whinney [1993] I.R. 375 which concerned the issue of non party discovery, O'Flaherty J. in the Supreme Court had a number of pertinent comments which are applicable to discovery in general and not merely non party discovery. He observed that:

"The purpose of discovery is to help to define the issues as sharply as possible in advance so that the actual hearing is allowed to take its course as smoothly as possible."

    He continued by stating that:

"Discovery is but an instrument to advance the cause of justice. It should be availed of to give the parties a proper appraisal of the case and on occasion, at least, to remove some issues from the debate thus saving time and costs."

    He continued:

"There has been experience in other jurisdiction where discovery is used to swamp the opposing party with masses of material, to engage in such a tactic is as much an abuse as to withhold relevant information".

    He further stated:

"There is no doubt that the party applying for discovery must satisfy the Court that it is likely that the party against whom discovery is sought has documents which are relevant to an issue arising or likely to arise out of the cause or matter. Of course, if the documents are not relevant then they should not be discovered at all."

    He concluded by stating:

"... these interlocutory matters, such as discovery and interrogatories, are a means to an end and should never be allowed to take on a life of their own" .

    It will be submitted by reference to the particular categories of documents sought by the plaintiff in the present case that if discovery is ordered of the documents sought by the plaintiff it will not help to define the issues and will not permit the hearing to take its course "as smoothly as possible" in the words of O'Flaherty J. It will not give the parties "a proper appraisal of the case" and will not "remove some issues from the debate thus saving time and costs" as stated by O'Flaherty J.

 

23. In Irish Intercontinental Bank Limited v Brady (Unreported, Supreme Court, Blayney J., 1st June 1995) in delivering judgment in the Supreme Court, Blayney J. emphasised the fact that documents sought by way of discovery must be relevant to issues disclosed in the pleadings. This was emphasised by Blayney J. at page 7 of the judgment.

 

24. In one of the leading cases on discovery prior to the 1999 Rules, the Supreme Court made it clear that unrestricted discovery was not appropriate. In Brooks Thomas v Impac [1991] 1 ILRM 171 the Court emphasised the requirement on a party seeking discovery to establish that the documents sought were necessary and not merely relevant. In that case, the Supreme Court allowed an appeal from an Order granting discovery and refused to order further discovery. Although the Court approved the dicta of Brett L.J. in Companie Financiere du Pacifigue v Peruvian Guano Company in relation to the relevance of documents, the Court went on to analyse whether notwithstanding the relevance of documents discovery should fairly be ordered. The case concerned a particular category of documents. The conclusion of the Supreme Court can be seen in the following extract from the judgment of Lynch J.:

    "I am driven to the inference that discovery in this case was no more than a fishing exercise and was quite unnecessary . . . "(emphasis added)

    He continued:

    "In relation to the further discovery the subject matter of this appeal, I am satisfied that it is not necessary either for disposing fairly of the action or for saving costs and I would therefore reverse the order of the High Court and dismiss the motion for further discovery.  (emphasis added)

 

25. The defendant will refer to two further cases in which the court depreciated the use of discovery as a "fishing expedition". In Aguatechnoloaie v Natinal Standards Authority of Ireland and Others (Unreported, Supreme Court, 10th July, 2000 Murray J.) Murray J. stated:

    "The Appellant in its application relied upon the decision of the Court in Sterling Winthrop Group Limited v Fabenfabriken Bayer ... where it was held that

‘every document relating to the matters in question in an action, which not only would be evidence upon any issue, but which, it is reasonable to suppose, contains any information which may - not which must - enable the party requiring the Affidavit to advance his own case or to damage the case of his adversary, should be discovered'. However, it seems to me that there is nothing in that statement which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly to the matters in issue between the parties to the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.”

    In McDonnell v Sunday Business Post Limited (Unreported High Court, O’Sullivan J., 2nd February 2000)  O'Sullivan J. stated:

 

"I would consider a fishing or exploratory operation to be one where there was no stated objective or delimitation by reference to the pleadings. In the present case, however, in general the list of categories of documents sought are capable of being, and in all but one case have been, specifically related to paragraphs in the plaintiff's pleadings. I have gone through this list carefully and I cannot agree that it bears the hallmarks of an exploration or fishing expedition. On the contrary, in the vast majority of incidents, specific documents are identified with a reasonable degree of precision.'

 

26. Order 31 Rule 12 was amended by the 1999 Rules. Under Order 31 Rule 12(1) (as amended), a Notice of Motion for discovery is required to "specify the precise categories of documents in respect of which discovery is sought" and is required to be grounded on an Affidavit verifying the discovery of documents sought is "necessary for disposing fairly of the cause or matter or for saving costs" and is required to furnish the reasons why each categories of documents is required to be discovered. Under Order 31 Rule 12(3) it is provided that:

"(3) An order shall not be made under this Rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs."

 

27. Under Order 31 Rule 12(4), a party seeking discovery is required to send a letter in advance requesting voluntary discovery. Order 31 Rule 4(1)(a) requires that a letter seeking voluntary discovery must specify "the precise categories of documents in respect of which discovery is sought" and must furnish the reasons why each categories of documents is required to be discovered.

 

28. The 1999 Rules clearly demonstrate the importance of initially sending a letter seeking voluntary discovery specifying the precise categories of documents in respect of which voluntary discovery is sought and furnishing the reasons for the discovery sought. The 1999 Rules also require that the motion for discovery must specify the "precise" categories of documents in respect of which discovery is sought. These principles were considered by Morris P. in Swords v Western Proteins Limited. In that case the letter seeking voluntary discovery sought general discovery of documents and, in particular (inter alia) "accident report book / record details". Morris P. upheld an appeal from the Master ordering discovery of such documents on the grounds that the letter seeking voluntary discovery which was the source of the Court's jurisdiction to order discovery, did not specify with sufficient precision the documents sought by way of discovery. In his judgment, Morris P. stated as follows:

 

"With regard to Counsel's first point, 1 am satisfied that the amendment to Order 31 Rule 12 was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had developed whereby Orders for Discovery were obtained unnecessarily and such Orders delayed litigation. As has been pointed out by the court on a number of occasions, Discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve the discovery of a dozen documents. In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable."

   

    Morris P. went on to consider the reason for the introduction of the 1999 Rules. He stated as follows:

"Accordingly, 1 believe that S.1. No. 233 of 1999 imposed a clearly defined obligation upon a Party seeking Discovery to pinpoint the documents or category of documents required and required that Party to give the reasons why they were required. Blanket discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to know the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make discovery the Court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed that the documents sought to be discovered might help to dispose fairly of the cause or save costs".

 

    Morris P. concluded that if the letter seeking voluntary discovery did not comply with the Rules then the issue was not identified and there was no power vested in the Master to make determination on any issue even where an elaborate Affidavit was filed. He concluded that the Master derived his jurisdiction from the letter seeking voluntary discovery. Morris P. found that the description of documents such as "accident report books, record details" was not sufficient and did not specify the precise categories of documents sought. He held therefore that there was a failure in that case to specify the precise categories of documents sought by way of discovery and that the 1999 Rules had not been complied with".

 

29. The sentiments of Morris P. were echoed by Keane C.J. in delivering the judgment of the Supreme Court in Burke v DPP.  In that case Keane C.J. endorsed the comments of Morris P. in Swords and stated:

"It is pointed out in the judgment of the President of the High Court ... [in] Michael Swords v Western Proteins Limited ... - and I should perhaps refer to the actual passage in the President's judgment - that this amendment to the original rules was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had developed whereby Orders for discovery were obtained unnecessarily and such Orders delay litigation. As has been pointed out by the courts on a number of occasions, discovery before the advent of the photocopying machine, fax, E-mail and word processors would probably involve in many cases the discovery of not more than a dozen documents. In recent years, the number of documents discovered can amount to many thousand and the process has become in many cases unmanageable. The learned President said that the new rule imposed a clearly defined obligation upon a party seeking discovery to pin point the documents or categories of documents required and required that party to give the reasons why they were required: blanket discovery had become a thing of the past. I have no doubt that the learned President was entirely correct in his view as to the object of a new rule and indeed its importance."

 

    Keane CJ emphasised the importance of compliance with the Rules for the reasons referred to by Morris P.

 

30. It is respectfully submitted that the 1999 Rules and the authorities referred to above demonstrate the importance of ensuring that the letter seeking voluntary discovery specifies with sufficient precision and pinpoints the precise categories of documents in respect of which discovery is sought. If it does not do so then neither the Master nor the Court has jurisdiction to order discovery on foot of that letter. The importance of specifying with precision the categories of documents sought is highlighted in the 1999 Rules and in Swords and Burke. So too is the importance of giving adequate reasons for seeking discovery and of demonstrating the necessity of discovery sought. The cases referred to earlier highlight the requirement that the documents sought must be referable to issues raised in the pleadings and discovery cannot be a "fishing expedition". In this regard reference may also be made to the decision of Whitford J. in British Leyland Motor Corporation v Wyatt Interpart Co. Limited [1979] FSR 39.  In that case (a competition case), the court refused to order the wide discovery sought by the defendant on the grounds that it would be "oppressive". Whitford J. highlighted the fact in such cases the party seeking discovery was not entitled to embark on a “fishing exercise”.

 

31. As indicated earlier, the plaintiff's request for voluntary discovery was made by letter dated 22 December 2000. This letter was replied to in detail by the defendant's solicitors on 16 February 2001. In that letter two preliminary points were made

    (i)  It was firstly contended that the plaintiff's letter seeking voluntary discovery did not comply with the provisions of Order 31 Rule 12 (as amended by the 1999 Rules) in that it did not specify or pinpoint the precise categories of documents in respect of which discovery was sought. In many cases, the description of documents was so vague, uncertain and imprecise that the defendant could not be in a position of knowing what documents the plaintiff was seeking by way of discovery. It was, therefore, contended that the letter for discovery was not in compliance with the Rules and therefore there was no jurisdiction to make an order for discovery on foot of that letter.

 

    (ii)  The plaintiff was not entitled to rely on the "additional particulars" purportedly furnished by letter dated 15 December 2000 to ground its request for discovery since no attempt had been made to amend the Statement of Claim to introduce these matters many of which are statute barred.

 

32. Without prejudice to those preliminary contentions, the defendant sought to address the particular categories of documents sought by way of discovery.

 

33. As indicated earlier the plaintiff seeks discovery of some fifteen principal categories of documents. However, one of those categories (paragraph (v)) contains no less than fifteen sub-categories. In all the plaintiff seeks discovery of some thirty-three categories of documents. The plaintiff appears to have trawled the pleadings and sought to supplement the pleadings by way of the "additional particulars" and then sought discovery of each and every single issue raised in the pleadings and in the "additional particulars" without reference to what is necessary in order fairly to dispose of the claim or to save costs (being a requirement under the 1999 Rules). It is respectfully submitted that not only is the discovery sought by the plaintiff a "fishing expedition" but that it is not in compliance with the 1999 Rules.

 

34. Each of the particular categories of documents sought by the plaintiff will now be addressed, adopting the same paragraph numbering as in the Notice of Motion:

    (i) These documents concern a number of passengers checked in by Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The defendant's objection is as follows:

    (a) The request is not sufficiently precise as required by Order 31 Rule 12 and the decision in Swords v Western Proteins Limited.

 

    (b) While the question of passenger numbers is relevant, the plaintiff has not provided a sufficient reason as to why it is necessary that it obtains discovery of the categories of documents (even if they could be discerned by the defendant) referred to in paragraph (i) of the Notice of Motion.

 

    (c) It is not necessary that the plaintiff obtains discovery of such documents. The plaintiff has already given what it regards as the number of passengers handled by Aer Lingus in the Statement of Claim (paragraph 7) and in the Affidavit sworn by Charlie Clifton on 29 January 1999 for the purpose of the interlocutory application.

 

    (d) The reasons given for seeking discovery are, therefore, inadequate.

 

    (e) Without prejudice to those submissions the plaintiff was invited to reformulate its request explaining why discovery was necessary and if it did so the defendant would be prepared to make discovery of documents demonstrating the number of passengers handled by Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The plaintiff did not do so.

 

 (ii) These documents concern the check-in desks and baggage belts provided by the defendant for Aer Lingus at Dublin Airport in 1998 and up to 27 September 1999. The defendant objects to making discovery of these documents on the following grounds:

    (a) The request lacks the precision required by Order 31 Rule 12 of the Rules and the decision in Swords v Western Proteins Limited.

    (b) While documents concerning the check-in desks and baggage belt facilities made available by the defendant to Aer Lingus may be relevant to the proceedings, the plaintiff has not established that it is necessary that he obtains discovery of such documents even if they could be identified by the defendant notwithstanding the imprecision in the description.

    (c) It is not necessary that the plaintiff obtains discovery of such documents. The plaintiff has asserted in the Statement of Claim (at paragraph 7) and in the Affidavit sworn by Charlie Clifton on 29 January 1999 (at paragraph 2) that the defendant has made available "at least fifty six check-in desks and three baggage belts" to Aer Lingus. No good reason has been advanced as to why documents are required by the plaintiff in support of this plea.

    (iii) These documents are described in the most general of terms but appear to relate to the facilities in place during the construction works at Dublin Airport. The defendant's objection to the discovery sought in the manner set out at paragraph (ii) of the Notice of Motion is as follows:

    (a) The description of the documents lacks the necessary precision required by Order 31 Rule 12 (as amended by the 1999 Rules) and the decision in Swords v Western Proteins Limited. The plaintiff has failed to pinpoint the documents required.

    (b) While it is accepted that minutes and notes of the consultations which predated the arrangements complained of by the plaintiff during the construction works are relevant, the defendant has already furnished copies of the relevant documents by way of an exhibit in its Affidavit sworn in response to the plaintiff's interlocutory injunction application (exhibit "DT4" to the Affidavit of Don Treacy sworn on 4 October 1999).

    (c) The plaintiff has not given good reason as to why the further documents (even if they could be identified notwithstanding the imprecision in the description) are necessary in order fairly to dispose of the claim or to save costs. The reasons advanced by the plaintiff are, therefore, inadequate.

    (d) Notwithstanding the deficiencies in the request, the defendant is prepared to furnish again the documents previously furnished by way of an exhibit to the Affidavit of Don Treacy together with any public notices about the arrangements.

    (e) The plaintiff was requested to reformulate its request for voluntary discovery to enable the defendant to reconsider its request. However, the plaintiff has failed to do so.

    (iv) These documents concern introduction of a fuel levy at Dublin Airport on 1 January 1995, an alleged attempt by the defendant to introduce a similar fuel levy at Cork Airport and negotiations with fuel companies in relation to supply of fuel. The defendant's objections to the discovery sought are as follows:

    (a) The documents are not described with sufficient precision as required by the Rules or by the decision in Swords v Western Proteins Limited.

    (b) As regards fuel levy at Dublin Airport, the plaintiff has not given good reason as to why such discovery is necessary. The plaintiff presumably knows that a fuel levy was introduced and levied on it and other airlines and the amount of that levy. No good reason has been advanced as to why it is necessary to obtain discovery of such documents in order fairly to dispose of the claim. Discovery will merely increase the costs contrary to the provisions of the Rules.

    (c) The documents sought in relation to Cork Airport are of no relevance to any issue pleaded in the case. Furthermore, accordingly to the plaintiff's solicitors' letter of 14 March 2001, the alleged attempt to introduce a similar fuel levy at Cork Airport was in July 2000. This is long after the proceedings. The plaintiff seeks these documents in order to establish a "pattern of abuse of conduct with respect to unjustifiable levies". However, there is no explanation for this. Not only are the documents irrelevant but the plaintiff has otherwise failed to comply with the Rules.

    (d) Documents concerning negotiations with fuel companies are not relevant to any pleaded issue. They are not relevant. No good reason has been advanced as to why it is necessary that the plaintiff obtains discovery of these documents.

    (v) This paragraph seeks discovery of fifteen sub-categories of documents. The documents are described in general terms at the beginning of paragraph (b) of the Notice of Motion and in the letter seeking voluntary discovery. However, by way of a general point, the description of the documents in this paragraph is vague and imprecise. It does not comply with the Rules or with the decision of Morris P. in Swords v Western Proteins Limited. That general point applies to all of the fifteen sub-categories. Turning to those sub-categories in turn:

    (a) These are documents concerning an alleged refusal by the defendant to consent to the plaintiff funding an extension of its hangar facilities at Dublin Airport in 1998. While this issue is raised in paragraph 13 of the Statement of Claim, it is not accepted that the plaintiff has given good reason as to why it is necessary that the plaintiff obtains discovery of such documents. Therefore, the request does not comply with the provisions of the Rules.

    (b) This concerns a decision to extend a lease in respect of Team Aer Lingus and to grant consent to the financing and construction of a new hangar in February 1999. Again, while this is referred to at paragraph 13(c) of the Statement of Claim, no proper attempt has been made to demonstrate why it is necessary that the plaintiff obtains discovery of such documents. There has not, therefore, been compliance with the Rules and no discovery should be ordered.

    (c) This concerns the joint funding in 1998 of check-in area q between the defendant and Aer Lingus. While this is pleaded at paragraph 13(c) of the Statement of Claim, no attempt has been made to give sufficient reasons as to why discovery is required. The defendant contends that discovery should not be ordered on the grounds of non compliance with the Rules and on the grounds that the request constitutes a "fishing expedition".

    (d) Documents sought here contain an alleged agreement between the defendant and Team Aer Lingus in 1991. In addition to the general point that there has not been compliance with the Rules, the defendant further objects that this issue is not raised in the pleadings; it was raised in the purported "additional particulars" in the letter of 15 December 2000; the plaintiff is not entitled to rely on the "additional particulars" to advance its claim for discovery in the absence of seeking to amend its Statement of Claim; the issue raised would be statute barred since it is alleged to have occurred in 1991; no attempt has been made to explain why it is necessary that the plaintiff obtains discovery of such documents.

    (e) The documents sought here concern an alleged lease by the defendant to Aer Lingus in respect of a tract of land reserved for unspecified purposes and/or development. In addition to the general point made earlier, the defendant objects to making discovery on the grounds that this is not an issue raised in the pleadings, it was purportedly raised in the "additional particulars" in the letter of 15 December 2000. No attempt has been made to amend the Statement of Claim. No attempt has been made to state when this lease was allegedly granted. No proper attempt has been made to advance the reason why it is necessary the plaintiff obtains discovery of these alleged documents. (f) The documents here concern the alleged refusal by the defendant to extend to the plaintiff similar terms to those extended to Aer Lingus and referred to at (e) above. However, this is not relevant to any issue raised in the pleadings. It is not raised in the Statement of Claim. It is not even raised in the "additional particulars" in the letter of 15 December 2000. No indication is given as to whether any request for similar facilities was made by the plaintiff and, if it was, when it was refused. Therefore, the documents sought here are not relevant. Nor has the plaintiff advanced sufficient reasons as to why discovery is necessary.

    (g) These documents concern an alleged assignment of a lease to FLS. The defendant objects to discovery of these documents on the grounds that there is no such allegation in the pleadings. It was raised in the purported "additional particulars" in the letter of 15 December 2000. However, no attempt has been made to amend the Statement of Claim. It is not alleged anywhere in either the Statement of Claim or in the "additional particulars" that the plaintiff sought an assignment of the lease and that it was refused. It is submitted that no good reason has been advanced as to why it is necessary for the plaintiff to obtain discovery of these documents even if they could be identified notwithstanding the imprecision in the description.

    (h) These documents concern an alleged assignment of a lease by the defendant to Aer Lingus in respect of an area of land of approximately 13 acres on which the head office was constructed. This is not an issue raised in the pleadings. It was not in the Statement of Claim or in any of the particulars furnished. It was contained in the purported "additional particulars" contained in the letter of 15 December 2000. However, as is clear, the events are alleged to have occurred in the 1960's. Any claim is therefore statute barred. The defendant was not given a good reason as to why it is necessary that the plaintiff obtains discovery of these documents.

    (i) This request concerns a "Memorandum of Understanding" allegedly agreed between the defendant and Aer Lingus. However, again this is not an issue raised in the pleadings. It was raised for the first time in the purported "additional particulars" in the letter of 15 December 2000. The defendant has the same objections as in relation to (h) above. The agreement was alleged made in 1984. It is therefore statute barred. No good reason has been given as to why it is necessary that the plaintiff obtains discovery of these documents.

 (j) The documents here concern an alleged agreement between the defendant and Aer Lingus to develop a hanger facility for A320 aircraft in Shannon. However, this is not an issue raised in the pleadings. It is not in the Statement of Claim or in any of the particulars. It was raised in the purported "additional particulars" in the letter of 15 December 2000. It introduced a new element not previously raised in relation to Shannon Airport. It is not relevant to the matters at issue in the proceedings. Nor has the plaintiff given good reason as to why it is necessary that it obtains discovery.

    (k) This request concerned an agreement to allow an additional floor on top of the Aer Lingus Catering and Personnel Building at Shannon Airport. This is not an issue raised anywhere in the pleadings. It was purportedly raised in the "additional particulars" on 15 December 2000. However, no amendment has been made to the Statement of Claim. In any event the agreement concerns Dublin Airport and an identical arrangement was made with the plaintiff. Therefore, these documents are not relevant to any issue in the proceedings and the plaintiff has not given good reasons as to why it is necessary that it should obtain discovery of these categories of documents.

    (I) These documents concern an alleged agreement between the defendant and UPS Shannon Airport in relation to hangar facilities. Again such documents are not relevant. They are not relevant to any issue raised in the Statement of Claim. They were purportedly raised in the "additional particulars". However, no attempt was made to amend the Statement of Claim. Not only are they not relevant but no good reason as been advanced as to why it is necessary that the plaintiff obtains discovery of them.

    (m) These documents appear to overlap with paragraph (c) above. The same objection applies.

    (n) These documents concern the alleged granting by the defendant to Mr. Goodman of a lease for the development of an airside hangar facility. However, they are not relevant to any issue raised in the proceedings. The documents do not derive from any issues pleaded in the Statement of Claim. This issue was raised for the first time the purported "additional particulars" in the letter of 15 September 2000. This was an attempt to render the issues relevant to the matters in the proceedings. However, it is not relevant and no attempt has been made to demonstrate its relevance. Nor is it necessary that the plaintiff obtains discovery of such documents.

    (o) Documents relating to "any other favourable arrangements" entered into with other operators such as Aer Lingus, DHL, SIPTU and Gate Gormet. This request is totally imprecise. It is clearly a fishing expedition. No attempt has been made to show the relevance of the documents sought here to any matter pleaded in the Statement of Claim. It is not even raised in the "additional particulars" in the letter of 15 December 2000. The plaintiff has made no attempt to demonstrate why it is necessary that it obtains discovery of these documents.

    (vi) These documents concern the computerised check-in services known as CUTE at Dublin Airport. However, the description of the documents does not satisfy the provision of the Rules or the decision in Swords v Western Proteins Limited. The description is imprecise and no attempt has been made to pinpoint the documents requested. No attempt has been made to explain why it is necessary that the plaintiff obtains discovery of such documents. The plaintiff was given an opportunity by the defendant's letter of 16 February 2001 to reformulate its request for discovery explaining why these documents were required. This was not done.

(vii) Two further categories of documents are sought here. They concern:

(a) The elimination of discounts applicable to Pier A at Dublin Airport on 1 January 2000; and

(b) Details of the cost for the construction of Pier C, the passenger terminal extension and Pier A including contract prices.

 

    As to (a), the plaintiff has not described the documents with sufficient precision to comply with the Rules and the decision of Morris P. in Swords v Western Proteins Limited. No attempt has been made to identify what documents are requested. No adequate attempt has been made to explain why it is necessary that the plaintiff obtains these documents. The plaintiff has alleged the elimination of the discounts. Why should discovery be required of this? The discovery concerns events which occurred after the commencement of the proceedings (on 1 January 2000) where as the proceedings were commenced on 30 September 1999. If, contrary to the submissions, documents are ordered under this heading they should be limited in time. As to (b), the plaintiff is not entitled to "details" of anything by way of discovery. The plaintiff appears to be seeking a vast amount of documentation concerning the construction of a number of different facilities. No attempt has been made to explain why these are relevant or why they need documents in order to make the case. It is alleged by the plaintiff that it is required to pay the same rate as operators using Pier C for substantially inferior services and infrastructure. However, it is clear, therefore, that the plaintiff is aware what it and other operators are paying and the facilities which it is getting for what it is paying. It is not clear why discovery of documents under this heading is necessary. The discovery sought here is oppressive, irrelevant and unnecessary. 

    (viii) Documents here concern VIP lounges, car-parking and facilities at Dublin Airport. The plaintiff also seeks a "list" of all persons / companies to whom such facilities are made available. The defendant maintains its objection that the description of documents is inadequate and does not comply with the provisions of the Rules or the decision in Swords v Western Proteins Limited. The defendant makes the point that the plaintiff has never requested VIP lounges for its passengers. However, without prejudice to its objection, the defendant is prepared to provide copies of agreements entered into by the defendant with other airlines concerning VIP lounges. With regard to the car parking, the defendant makes the point that it provides 370 staff car parking spaces free of charge to the plaintiff. Without prejudice to its objection, the defendant is prepared to make copies of such agreements with respect to the provision of car parking to the plaintiff and Aer Lingus as may exist. However, both these documents and the documents in relation to VIP lounges should be limited in time. The defendant does object to making discovery of a "list" of persons and companies. This is not an appropriate matter for discovery. The defendant also objects to making discovery of the alleged withdrawal of VIP facilities from the plaintiff's employees. The defendant does not accept that such documents are relevant or that it is necessary that the plaintiff obtains discovery of them. The plaintiff should be aware of those employees from whom it is alleged VIP facilities were withdrawn.

(ix) The documents sought here concern alleged refusal by the defendant to allow the plaintiff's chosen third party handling agent access to Shannon Airport in 1995. The defendant makes a general objection that the description of documents does not comply with the Rules and the decision in Swords v Western Proteins. The plaintiff has also failed to explain why it is necessary that it obtains discovery. However, notwithstanding that objection the defendant is prepared to furnish copies of documents concerning the plaintiff's request to have its own third party handers at Shannon Airport in 1995.

(x) The documents here concern an alleged decision by the defendant in 1995 to change the designation of the plaintiff's parking stands at Shannon Airport. The defendant maintains its objection to the discovery sought in this paragraph on the grounds that the description of documents does not comply with the Rules or with the decision in Swords v Western Proteins. However, without prejudice to that objection, the defendant has indicated that it is prepared to make copies of whatever documents it has concerning this alleged decision available to the plaintiff.

(xi) The documents here concern an alleged refusal by the defendant up to 1995 to allow the plaintiff's passengers access to Pier A through a link access. The defendant submits that the description of documents does not comply with the provisions of the Rules or with the decision in Swords v Western Proteins Limited. The defendant does not accept that the plaintiff has advanced good reason as to why it is necessary that it obtains discovery of such documents.

(xii) The documents here concern an alleged policy of the defendant to give its airline travel business for its executives and staff to Aer Lingus and not the plaintiff. The description of documents here is vague and uncertain. The plaintiff has failed to comply with the provisions of the Rules and has not identified with sufficient precision the documents requested by it. The plaintiff has not given good reason as to why it is necessary that it obtains discovery of such documents. It is unclear as to what documents are being sought or the period for which such documents are sought.

(xiii) The documents sought in this paragraph concern an alleged decision by the defendant to clamp cars at the plaintiff's head office building and to instruct the vehicle recovery service “to make things difficult” for the plaintiff and its staff. The defendant objects to the description of the documents on the grounds that it does not comply with the provisions of the Rules or with the decision in Swords v Western Proteins Limited. The defendant contends that there was no such policy or instruction. The alleged policy or instruction according to the plaintiff was introduced in October / November 1999. This was after the commencement of the proceedings. Therefore, no discovery should arise.

(xiv) Some five sub-categories are sought in this paragraph. With regard to sub-paragraphs (a) to (c), the defendant repeats its objection that the plaintiff has not complied with the Rules or with the decision in Swords v Western Proteins Limited. However, furthermore, in so far as the plaintiff seeks discovery of documents concerning "incidents", the plaintiff has failed to identify what it means by "incidents". In particulars the plaintiff has identified two incidents, one in October 1999 and another on 16 February 2001. However, both are alleged to have occurred after the commencement of proceedings and therefore no discovery should arise. The plaintiff should reformulate its request describing the incidents which predated the proceedings with sufficient precision to enable the defendant to assess what documents are being sought and the necessity for the discovery of those documents. With regard to (d), notwithstanding that the defendant's bye-law came into effect in October 1999 after the commencement of proceedings, the defendant is prepared to provide copies of such documents. With regard to (e), this concerns complaints in relation to wheelchair / disabled faculties at Dublin Airport, the defendant is prepared to provide copies of such documents although it does not accept that the plaintiff has made a good case that it is necessary that it obtains discovery of such documents.

(xv) This is a request for documents concerning the introduction of a bye-law requiring  provision to be made for the needs of persons with disabilities at Dublin Airport. While this post dated the commencement of the proceedings, the defendant is prepared to make available to the plaintiff copies of all documents concerning the introduction of the bye-law (S.I. No. 469/99).

 

35. It can be seen from the defendant's letter of 16 February 2001 that the plaintiff was invited to reformulate its request for discovery so that it complied with the Rules and it was indicated that the defendant would consider any such further request for discovery. Notwithstanding that invitation and notwithstanding that a number of minor typographical amendments were made in a subsequent letter from the plaintiff's solicitors dated 14 March 2001, the plaintiff made no attempt to reformulate its request for discovery and pressed on with this motion notwithstanding the deficiencies identified in the defendant's letter of 16 February 2001.

 

36. The defendant respectfully submits that the plaintiff's application for discovery should be refused.

   

1. These supplemental written submissions are made on behalf of the defendant in response to an issue raised in the plaintiff's outline legal submissions.

2. The issue concerns the meaning of the term "necessary" in Order 31 Rule 12(3) of the Rules of the Superior Courts (as amended by the 1999 Rules). Order 31 Rule 12(3) provides that:

“(3) An Order [for discovery] shall not be made under this Rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.”

3. In its outline legal submissions, the plaintiff contends that all of the documents in respect of which it is seeking an order for discovery are "necessary" for fairly disposing of the cause or matter. The plaintiff relies on the decision of Kelly J. in Cooper Flynn v Radio Telefis Eireann (Unreported, High Court, Kelly J., 19th May 2000) and on a number of English authorities quoted by Kelly J. in that decision -Wallace Smith Trust Co. v Deloitte [1996] 4 All ER 403; Taylor v Anderton [1995] 2 All ER 420;  Science Research Council v Nasse [1979] 3 All ER 673.

4. The plaintiff contends that these cases establish that a party seeking discovery of documents, in order to establish that such discovery is "necessary" would in the meaning of Order 31 Rule 12(3) of the Rules (as amended), has merely to establish that it will gain a "litigious advantage" in obtaining the documents. In support of this contention the plaintiff contends that the defendant "would have taken care to hide evidence of [its alleged] illegal behaviour and that the plaintiff "must by necessity have a limited knowledge of such activity given the nature of [the alleged] activities and the particular documents generated. To bolster its argument the plaintiff submits that it competes with the defendant? The plaintiff contends that the defendant ought not to be permitted to hide documents allegedly establishing breach of competition law.

5. In response to the submissions the defendant respectfully submits as follows:

(1) Before addressing the legal principles, it is necessary to take issue with the factual basis on which the plaintiff's submissions are based. There is no question of the plaintiff competing with the defendant and no such allegation is made anywhere in the pleadings. Furthermore, there is no question of the defendant hiding evidence of any alleged illegal behaviour. No such allegation has been made by the plaintiff in any of the Affidavits sworn on its behalf in support of its application for discovery. It is most inappropriate that such an allegation is made for the first time in its legal submissions. Furthermore, there is no question of the plaintiff having "limited knowledge" of the defendant's activities. As is clear from the pleadings, the plaintiff operates from Dublin Airport and has done so for many years. The detail of the allegations contained in the Statement of Claim and in the particulars furnished by the plaintiff are totalling inconsistent of the plaintiff having a "limited knowledge" of the matters which it is alleging against the defendant in the proceedings. The plaintiff's submissions on this issue appear to be wholly unrelated to the factual position asserted by the plaintiff in the pleadings.

(2) The plaintiff relies on Cooper Flynn v RTE. However, that case did not concern an application for discovery. Orders for discovery had already been made in that case against NIB. At least one of the orders for discovery was made in December 1999, after the 1999 Rules had come into force. The application before the Court was an application for inspection of documents which had already been disclosed in NIB's Affidavit of Discovery. The application was made under Order 31 Rule 18 of the Rules of the Superior Courts and not Rule 12 (which was amended by the 1999 Rules). The basis on which NIB and the plaintiff resisted inspection (but not discovery) was banker / customer confidentiality. That case was, therefore, totally different to the present case. In that case the defendants had already overcome the hurdle of establishing that the documents sought by way of discovery were "necessary" within the meaning of Order 31 Rule 12(3). What was at issue was whether inspection of the documents (without restrictions) could be permitted. The Court was not concerned with whether it was necessary for discovery of those documents to be made in the first place. That decision had already been made by the Court which ordered discovery.

(3) A generous interpretation of the word "necessary" in Order 31 Rule 12(3) would be fundamentally inconsistent with the purpose of the amendments to Order 31

Rule 12 introduced by the 1999 Rules (as discussed by Morris P. in Swords v. Western Proteins Limited and by Keane C.J. in Burke v DPP). Nor would such an interpretation be consistent with the sentiments of Lynch J. in delivering the judgment of the Supreme Court in Brooks Thomas Limited v Impac Limited. The defendant respectfully submits that the term "necessary" should be given its natural and ordinary meaning, in order words, must be essential that the plaintiff obtains discovery of such documents in order fairly to dispose of the claim or to save costs. The plaintiff has not satisfied this test.

(4) If the principles in Cooper Flynn and in the English cases cited by Kelly J. in that case (all of which seem to involve an issue of confidentiality or public immunity privilege) are applicable to an application for discovery as opposed to inspection, then it is necessary to have regard to what those principles are as they have not been fully set out in the plaintiff's written submissions. As is clear , from the portion of the judgment of Simon Brown L.J. in Wallace Smith Trust Co. v Deloitte which was quoted with approval by Kelly J. in Cooper Flynn, disclosure will be "necessary" if three conditions are satisfied. Disclosure will be "necessary" if:

                  "(a) It will give "litigious advantage" to the parties seeking inspection (Taylor v Anderton...) and

                  (b) The information sought is not otherwise available to that party by, for example, admissions or some other form of proceeding (e.g. interrogatories) or from some other source (see e.g. Dolina -Baker v Merrett...) and

                  (c) Such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (see e.g. Science Research Council v Nasse ...)'

(5) It is clear that if principles in Cooper Flynn are applicable, the onus of establishing each of these three conditions lies on the parties seeking inspection (or, in this case, discovery). The defendant respectfully submits that the plaintiff has failed to discharge that onus. It has only sought to address the issue of "litigious advantage". It has not discharged the onus of establishing such a "litigious advantage" within the meaning of that term in Science Research Council v Nasse. The plaintiff has not sought to address the other parts of the test which is whether the information is otherwise available to the plaintiff (or known to the plaintiff) or that the discovery sought would not be oppressive. It is submitted that the discovery sought would be oppressive. The defendant's solicitors pointed out in their letter of 16 February 2001 in response to the request for voluntary discovery the vast amount of documents sought and the unnecessary costs involved -for example -the documents concerning the construction of Pier A and Pier C (paragraph (vii) of the Notice of Motion).

6. In summary, therefore, it is respectfully submitted that the meaning of the term "necessary" in Order 31 Rule 12(3) which the plaintiff contends cannot be correct having regard to the major change in the principles governing applications for discovery introduced by the 1999 Rules. Even if the principles for which the plaintiff contends are applicable, the plaintiff still fails to satisfy those principles or to meet the test for establishing the discovery sought by it is "necessary" either for disposing fairly of the cause of the matter or for saving costs.

                  In this case I’m dealing with an allegation of breach of a dominant position.  Without drawing unnecessary distinctions I am satisfied that the plaintiff’s objections to the perceived views of the Swords judgment are correct.

                  I would go further.  The defendants have a fundamental obligation as to the strategic and economic use of Irish facilities given the dominant position of the defendants it seems to me that the Court must look very carefully at the request of discovery.

                I would in the circumstances of this case direct the defendants to answer all of the plaintiff’s requirements for discovery.