High Court of Ireland Decisions

Neutral citation no. [2005] IEHC 217

THE HIGH COURT

2001 No 14206P

BETWEEN

MARIE FARNON

PLAINTIFF

AND DUNNES STORES DUNDALK LIMITED

DEFENDANT

DECISION of the Master of the High Court 23^rd June, 2005

The days of general discovery are over.

Category-specific discovery may be requested under the Rules of Court, but practitioners, for the most part, appear to be still rather fond of general discovery and have simply broken general discovery into its component parts by specifying the issues and requesting "all documents relating to" such and such a disputed fact.

And the language of practitioners hasn't changed much either. The three standard protests voiced by a respondent to a motion for discovery remain (as they were in the days of general discovery):

(1) "it's not relevant"

(2) "it's too broad"

(3) "it's fishing"

Practitioners are also apt to remind me that the test is still whether discovery is "necessary either for disposing fairly of the cause or matter or for saving costs"
(O. 31, r. 12(3)) and that the Peruvian Guano gloss on that test still holds sway as it did in the days of general discovery.

Perhaps so, but there is now a much closer scrutiny of that "need". It has to be a "genuine" need (Supreme Court, Ryanair v. Aer Rianta, 2/12/03). It has to be a "real" need (Supreme Court, Taylor v. Clonmel Healthcare Ltd., 11/2/04). The need has to be spelt out as (part of) the "reason" for the initial request for voluntary discovery. And if a court application for discovery is being made, the "need" has to be verified on oath.

The verification required of applicants should not be just an empty formula. Unless the particular circumstances as to available evidence, experts' requirements and so forth are mentioned as the basis on which the applicant has formed his conclusion as to necessity, the respondent is unable to know or meet the case being made. Unfortunately most applicants put their case (usually set out in the reason for each category sought in voluntary discovery) solely on the basis that the documents in a particular category are relevant to a particular fact which is in dispute. Clearly, that's not enough.

Because, ultimately, the test for discoverability is the fairness of the trial, which, in the final analysis, is an uncertain and almost subjective yardstick, it may be thought that discovery applications are also incapable of being judged by reference to any sort of scientific, or rational, or fixed principles. Not so. Even before the days of category-specific discovery the respondent's protests about relevance, fishing and breadth of discovery were simply user-friendly labels attaching to technical submissions rooted in the principles of pleading. These principles and these technicalities still govern our rules of procedure.

if you ask for discovery in respect of a fact which is not pleaded (or which is pleaded but not denied) or which is not a material fact, it will be refused because "it's not relevant".

if you ask for discovery for documents "relating to" a fact in issue it may be refused as unnecessarily extensive when a particular subset of documents would be equally effective … the discovery sought is clearly "too broad".

if you ask for discovery of documents in respect of a factual allegation of a general and non-specific nature (even if the fact is listed as a particular) you will not be allowed to "fish" in the respondent's papers in order to see if you spot anything: plead with specificity and then you'll get discovery.

Discovery is not about the applicant's case. It is about the applicant's case as pleaded.

If you've failed to plead the case to best advantage, don't be surprised if discovery is refused. Consider it a lucky break to have had the deficiencies in your pleadings highlighted at an early stage, after which you have an opportunity to mend your hand.

It is an entirely separate matter - upon which I will express no opinion today - as to who should ultimately bear the costs of an application which is defective for technical reasons. If it's your error, why should the respondent pay the costs if they're reserved and you win the case? If it is your error and your client ultimately loses the case, why should he have to bear the costs of the technical deficiency? Indirectly, even if he wins the action the applicant may end up paying the discovery application costs of both parties! There is clearly little real incentive here for practitioners to try to avoid making an application which is unsuccessful. It is most unsatisfactory.

It is not altogether surprising therefore that most discovery applications are approached with a healthy degree of scepticism regarding the "necessity" for discovery. Is discovery "necessary" in this case?

It appears that on 29^th April 2000 the plaintiff (a "visitor": Occupiers Liability Act, 1995) slipped on liquid (or "liquid matter") on the floor of the defendant's premises in Dundalk. That's the plaintiff's case as pleaded (actually it's not: I have had to assume that she slipped on the liquid. A fall is mentioned, and there is reference to liquid matter on the floor - I am putting two and two together!). Particulars (15.4.02) disclose that the plaintiff's fall was witnessed by a friend.

Further particulars (9.6.03) refer to a water leak "at or around a column adjacent to the accident" and "saturation of the carpet area at its base and across the aisle floor". This wording suggests that the scene had by then been inspected by the plaintiff's expert witness; and there is no evidence suggesting the contrary.

The above description is of the bones of a case which, in my experience, is one which a plaintiff can make without any discovery. Before any discovery is sought, one must assess the availability of actual witnesses. The plaintiff herself, her friend, her expert - can they not, between them, prove all the material facts? There is nothing in the applicant's grounding affidavit or elsewhere in the paperwork to suggest otherwise.

In the Taylor v. Clonmel case the Supreme Court recommended that courts order discovery of documents which were patently discoverable in cases of that sort (procedural irregularity notwithstanding). What is, or is not, patent can only be judged by practitioners and judges alike from their own experiences in practise and from first principles of law (especially the law of evidence). Equally, this informed instinctive first test will quickly spot discovery categories which are not necessary on any view of the case. It will take more than a mere formal verification of necessity to dislodge that impression.

In this particular case the applicant's solicitor verifies that she needs nine different categories of documents for her case. These are:-

1(a) defendant's contract with independent maintenance contractors,

1(b) names of cleaning staff on the day,

1(c) cleaning records (unlimited in time);

2 (a) previous similar accidents for five years,

2(b) complaints about water leaks (all documents "in respect of …" unlimited in time);

3.accident book;

4(a) safety statement (plus all other health and safety documents),

4(b) risk assessments for customers and employees;

5. staff interviews or notes regarding the accident.

Only two of these (3, 5) concern the circumstances of the plaintiff's accident itself. The rest concern the matter of whether the offending leak was a once off, or a long term problem: in the former case, the defendant might get away with a plea of no want of reasonable care (if he had a reasonable cleaning system), which plea would be likely to be considered hollow if the leak was of longstanding.

Anyone doubting my instinctive view that the plaintiff does not need any more evidence should read the Supreme Court judgments in Mullen v. Quinnsworth, [1990] 1 I.R. 59 (another supermarket slip and fall case; another wet and slippery floor; another Dundalk case !) in which the court unhesitatingly concluded that on these facts the plaintiff could rest her case on the plea "res ipsa loquitur" and throw onto the defendant the burden of disproving a want of care. Intriguingly, the court also canvassed ("for another day") the possibility that Rylands v. Fletcher might stretch to cover such supermarket cases.

But is there a "necessity" case to be made for discovery to the plaintiff of documents which may be indirectly probative (or undermine) the defendant's evidence that its system of cleaning was adequate and operational on the day in question?

When a defendant seeks discovery of the plaintiff's documents, uncertain as to what it may find, there is something of a trawl going on, a search for usable material probative of facts not yet known as such to the defendant. Likewise, in respect of a defendant's case, when a plaintiff seeks discovery there is often a degree of fishing. In respect of an allegation of contributory negligence the truth of which is already known to the plaintiff, discovery is clearly not needed if the plaintiff intends to tell the truth. (In fairness to the defendant if a plaintiff, for example, alleges he was not trained and the defendant pleads that he was, a plaintiff ought to face cross-examination on that point in ignorance of what documentary evidence the defendant may put to him: otherwise, he enjoys the luxury of withdrawing his allegation before the trial if he becomes aware that the defendant can prove him to be lying. The defendant, having such evidence, is entitled to deploy it, sight unseen, to damage the plaintiff's evidence on this point and perhaps consequently on other points also. It is unfair to the defendant to deprive him of that opportunity. Instead of seeking discovery, the plaintiff should opt for giving his evidence truthfully.

On the other hand, where a defendant, as in this case, must prove certain facts relating to his own acts and omissions if his defence (denial of negligence) is to find favour, he should not be permitted to call some evidence if he also has (and intends to conceal) other (documentary) material which is at variance therewith. In this case it is the shop owner who has all the evidence regarding his system of coping with loose water in the aisle. Unlike the instance above described of the plaintiff and training, a defendant's untruths (if any) or exaggerations may go unchallenged since he alone knows the facts. Discovery seems fair.

Funny. The Mullen case was litigated without either side bothering to seek discovery.

Perhaps practitioners were more alert to the fundamental legal limitations of a document as proof of the contents thereof: cases were fought robustly with real evidence from real witnesses and discovery of documents was a means to an end and not an end in itself. And the idea that discovery would be sought to see if anything could be found which might be useful in cross-examination (e.g. as to credibility) was not looked on with judicial favour. As late as 2001 we find an obiter in a judgment of the Supreme Court (Murphy J. in Enright v. D.J. Finn and the D.P.P.) as follows:

"Certainly the fact that documentation might cast doubt upon the credibility of a witness or provide material which could be helpful on cross-examination would not be sufficient justification for ordering discovery."

That was then. This is now. Do we have different parameters for fairness now? (Or is the change just because records are kept, now, which were not kept twenty years ago?) It would be a pity if discovery were to become an automatic request without any consideration of need. Perhaps solicitors now seek discovery merely as a precaution to see off any later claim against them by a disappointed client, though I cannot see on what basis such a claim might be realistically prosecuted. Has anybody ever made such a claim?

The plaintiff is seeking discovery which is "too broad". I will order discovery of a focused category as follows:-

"The cleaning roster for the floors of the public areas of the defendant's premises in Dundalk for the day of the plaintiff's accident and for each day of the two month period immediately prior thereto, together with any record of cleaning having actually been performed as rostered."

And another category -

"Any document as to the defendant's floor cleaning system upon which the defendant intends to rely on at the hearing."

Costs? The plaintiff's demand was excessive. On the other hand, perhaps the defendant should have offered limited voluntary discovery. Instead, both parties ended up in court and costs should be reserved. However, the defendant really shouldn't have to pay the plaintiff's costs of this motion, even if it ultimately loses the case, so I will make no order as to the plaintiff's costs and reserve only the costs of the defendant.

Approved: Edmund Honohan 23/06/05