THE HIGH COURT
No. 1639P of 2001
BETWEEN
BARBARA CLARKE
PLAINTIFF
AND
DROGHEDA CORPORATION
DEFENDANT
Decision of The Master of the High Court 16th January, 2003.

The 40 year old Plaintiff tripped and fell at 10 p.m. on 29th June, 2001 on the public footpath at or near the entrance to St. Laurence's Park, Drogheda, the estate where she lived. She fractured her right clavicle and may have damaged the conoid and trapezoid ligaments. Her ability to carry out normal household chores is limited. Her claim against the Defendants is for damages for beach of duty of care (including Statutory duty) and for Nuisance. When particulars of Statutory duties allegedly breached were sought by the Defendant, none were forthcoming.

Although there is no reference to the presence of large boulders (or rubbish) in the description of the accident, the Plaintiff pleads (as a particular of Negligence and Nuisance) that such boulders (and/or rubbish) constituted a trap and a danger to the public. Poor lighting and poor maintenance of the footpath and the estate generally are alleged, together with the Defendant's alleged failure to warn the Plaintiff that the footpath was dangerous and/or that rubbish was present and not highlighted.

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The Plaintiff now seeks discovery of the Defendant's documents, as follows:

"all records, from the date of construction of the estate to date relating to

(i)	The placing, removal or altering of position of boulders in or around the entrance to St. Laurence's Park Drogheda.

(ii)	The design and provision of lighting around the entrance to St. Laurence's Park

(iii)	The collection of rubbish and debris from in or around St. Laurence 's Park

(iv)	Complaints made by individuals concerning the presence of large boulders, and the lack, or inadequacy of lighting and the presence of rubbish and debris (to include the failure to collect same.)

(v)	Maintenance of the general environs of St. Laurence's Park.

(vi)	Previous accidents of a similar nature.”

Not so very many years ago, a case of this sort would have proceeded to trial without discovery, even though general discovery would have been available for the asking (without any affidavit to ground the application). In a case of this sort, where the Plaintiff herself and an engineer, who would report on the accident site, were expected to be available to make the Plaintiff's case, Counsel advising proofs would not feel that anything else was required.

So what has happened in the interim? Has the substantive law of negligence changed? Have the rules of evidence changed? Has the burden of proof shifted? "No" is the answer to all of the foregoing. Why then is there now the ubiquitous application for discovery?

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There are a few theories circulating. Firstly, because there are more records kept now than was the case in the past. That may be a fact, but in itself does not constitute a reason for discovery. A party is not entitled to discovery of documents simply because the other party happens to have them.

Perhaps it is because of the calibre of documentation now being kept. The use of the word "document" in itself has perhaps led to too ready a perception that such records have a formal character and constitute good evidence of their contents. If it is a "document", it is evidence! The rules of evidence have not changed - a formal record (even if a requirement of Statute) is no more evidence of the content than the scraps of paper, notebooks, letters and diaries of litigation in former times. Discovery is about getting access to any writing (of any sort: hand or printed) which makes reference to the disputed facts. A party is not entitled to discover such written record or memo simply because it happens to be in the form of a "document" colloquially speaking i.e. something formal. It might perhaps be better if the word "document" was replaced, where it appears in the Rules, if its use is causing such a misconception.

Secondly, there is the theory that the anxious practitioner, now perhaps more acutely conscious than before of the possibility of adverse consequences if he is found wanting in his handling of the litigation, is simply covering all angles by seeking discovery even though he does not think he really needs it, and realises that he will probably find nothing in it which will advance his client's case.

It is clear that such caution will continue to prompt applications for discovery, even after the demise of general discovery, until applications are routinely refused on a consistent basis with written judgments available to justify a more rational assessment by Solicitors as to whether or not to seek discovery. [Self restraint (the requirement to file an affidavit regarding necessity etc) has not yet made any appreciable impact on the numbers of discovery applications].

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General discovery survives today in the form of a request for maximum discovery (or "issue-less" discovery such as we are now familiar with on the context of the Tribunals of Inquiry). Simply put, this involves asking for all the files the other side has (or is likely to have) without reference to the likelihood of their yielding useable material or indeed, as to the disputed fact of which they may be probative.

Practitioners are simply replacing the request for general discovery by requesting separately all the discrete categories of documentation which together would constitute general discovery. Clearly that was not the intention of the Courts when the demise of general discovery was announced.

If then, general discovery is no longer available either per se, or masquerading as so many separate categories of documents, by what criteria will categories pass the test of discoverability? What are the new boundaries of discoverability? Clearly they must be less extensive than general discovery.

There is no new law here (except, that is for the provisions of S.I. 233 of 1999). The Rules are as they always have been, namely, that documents will be discoverable if it appears that they may contain references which could directly (or indirectly) lead to evidence probative of the material facts in issue, and necessary (per S.I. 233). Practitioners need to ask themselves simple questions: What are the facts in dispute? Which of these are material, and which surplus? What documents might contain lead to probative (and admissible) evidence concerning the disputed material facts? Can I prove the disputed fact without discovery?

In this case the Defendant does not deny those facts upon which the Plaintiff relies to establish the existence of a duty of care. However, the Defendant denies that the Plaintiff fell at all or as alleged, and disputes any suggestion of negligence on its part. The Defendant denies that it caused a nuisance. Even if it was careless, says the Defendant, such did not cause the accident. Further, the accident was the Plaintiff's own fault (or she was at least partly to blame).

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The Plaintiff seeks discovery of the categories above listed to assist in the proof of what facts? (Here, I refer to the "reasons" set out in the requesting letter of 14th May, 2002).

(1)	that the Defendant placed the boulders in situ and moved them about from time to time,

(2)	the actual lighting at the time, compared with the lighting envisaged at the design stage,

(3)	whether the Defendant has a system to maintain the environment of the estate (including collection of rubbish accumulated during construction of the estate).

(4)	Whether previous accidents "of a similar nature" were known to the Defendants.

Are any or all of these facts (a) disputed and (b) material? (More fundamentally, are any of them specifically pleaded at all?)

(1)	It is not denied that the Defendant put the boulders in place. What is denied is that they did so "when they knew ... same constituted a trap or danger". That is the correct grammatical reading of the state of the pleadings. The issue is the state of knowledge of the Defendant: see (4) below. The Defendant is not denying the existence of the boulders, per se.

(2)	That the lighting was not as designed is not alleged. Frankly, whether the lighting was as designed or not is neither here nor there. The actual lighting conditions are alleged to have been inadequate (by anybody's standard - not by reference to the design specification). The Plaintiff's engineer can prove this, can he not.

(3)	Rewriting "whether the Defendant has a system to maintain" as "whether the Defendant maintained ... etc", brings us back to the fact pleaded (there is no plea about a "system" as such). The case is not about whether the estate was maintained regularly, it is about whether, on the day in question, accumulated rubbish and debris

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was present at the site of the fall. If that is the evidence (and the Plaintiff herself can give it) it is probable that poor maintenance was the cause: res ipsa loquitur.

(4)	As to knowledge of the Defendants: this is not a material fact in either Negligence or Nuisance. The Defendant cannot avoid liability by proof that it did not know that the boulders were dangerous etc. as alleged.

Accordingly I refuse the application.