High Court of Ireland Decisions

Judgment Title: Atlantic Shellfish Ltd & Anor -v- Cork County Council & Ors

Neutral Citation: [2007] IEHC 215


High Court Record Number: 2001 15389 P

Date of Delivery: 15 August 2007

Court: High Court

A. Seeking an order reversing that part of the order of the Master made on 15th December, 2004, whereby he refused the Plaintiffs’ application for an order for discovery against the Second, Third and Fourth Named Defendants in respect of certain categories of documents;
B. An order in lieu of the order made by the Master, directing the Second, Third and Fourth Named Defendants to make discovery upon oath of the documents and categories of documents referred to in the notice of motion issued on behalf of the Plaintiffs on 5th April, 2004; and then similar orders to those sought at C, D, and E of the first motion, with both applications being grounded upon the proceedings already had in the case and on the affidavits of Richard Martin, the applicants’ solicitor, sworn on 5th April, 2004, and on 23rd July, 2004, and in the case of the First Named Defendant, the affidavit sworn on 16th November, 2004, with the exhibits to those affidavits.

“The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties.”

“The aim of the relevant rules is to enable a party to learn, in advance of the trial, of the existence of the documents on which his opponent might rely at the trial; to give a party who has obtained an order for discovery an opportunity of seeking production for inspection of any of those documents; and to debar the party who has made discovery from introducing in evidence at the trial documents which he ought to have, but has not, discovered.”

“[T]he basic purpose and reason for the procedure of discovery …
is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of being presented to the court by the parties concerned, so that justice on full information, rather than on a limited or partial revelation of the facts arising in a particular action, may be done.”

“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”.

“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 categories 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 which shall:

(2) On the hearing of such an application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or by virtue of non-compliance with the provisions of sub-rule 4(1), or make such order on terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.
(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.
(4) (1). An order under subrule 1 directing any party or under rule 29 directing any other person to make discovery shall not be made unless:
(a) The applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered; and
(b) A reasonable period of time for such discovery has been allowed; and
(c) The party or person requested has failed, refused or neglected to make such discovery or has ignored such request

“comprehend the full range of things which could become part of the court file at the end of the hearing of the proceeding in question.”

“I think that where the word occurs in the discovery rules it should be construed in terms of the scheme and purposes of those rules. Thus read, I consider that the word [documents] includes any thing which, if adduced in evidence at the hearing of the proceedings, would be put in, or become annexed to, the court file of the proceedings. All such things are part of the documentation of the case and qualify for preservation as part of the court archives.”

“Similarly, there can be no distinction in principle between the tape used to record a telephone conversation in Grant v. South Western and County Properties Ltd. which was an ordinary analogue tape … and a compact disc or digital tape on which sound, speech as well as music, is mapped by coordinates and recorded in the form of groups of binary numbers. And no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language.”

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’, because, as it seems to me, a document which can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either these two consequences.”

“[T]here 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.”

At paragraph 7 of the General Endorsement of Claim the Plaintiffs also claimed:-
7. Damages for nuisance
8. Exemplary and/or aggravated and/or punitive damages and
the usual pleas for further and other relief, interest pursuant to statute and costs.

“… there is nothing in that statement [of Brett L.J.] which is intended to qualify the principle, that the documents sought on discovery must be relevant, directly or indirectly to the matters in issue between the parties in 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.”

“1. The Court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the Court to order discovery simply because there is a possibility that documents may be relevant.
2. Relevance must be determined in relation to the pleadings in the specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in Affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that Order 31 Rule 12 of the Superior Court Rules specifically relate to discovery of documents “relating to any matter in question therein”.
3. It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other parties documentation is not permitted under the rules.
4. The Court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties.”

“The crucial consideration is, in my judgment, the meaning of the expression “disposing fairly of the cause or matter”. Those words direct attention to the question whether inspection is 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 the party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious advantage by not seeing it and will gain no litigious advantage by seeing it. That, in my judgment, is the test.”

“It may not be wise to substitute a new term of art, “litigious advantage”, for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation. The change made to O. 31, r. 12 in 1999, exemplifies, however a growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burden on parties, and the courts, arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy.
The court, in exercising the broad discretion conferred upon it by O.31, R.12 (2) and (3), must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may no doubt, include the possible service of notices to admit facts or documents. But there are two sides to litigation. The behaviour of the opposing party is relevant. That party may, for example, have made or may offer to make admission of facts, and thus persuade a court that discovery on some issues is not necessary. This is, perhaps, axiomatic. Those facts will no longer be in issue. On the other hand, it is difficult to see how a party, such as the Defendant in the present case, which contests all the relevant facts on the pleadings and has formally objected to the right of its opponent to resort to affidavit evidence can plausibly ask the court to deprive its opponent of access to documents which will enable it to prove matters which it disputes.”

“One of the main purposes of the Rules of the Superior Courts (No. 2) (Discovery), 1999, is certainly to do with away with the practice of ordering blanket discovery. This is in ease of both parties and to avoid an abuse of the discovery procedure. This abuse sometimes consisted in seeking vast numbers of documents which it would cause great hardship on the recipient of the request to identify and list, or equally can consist of vast numbers of documents being discovered by the recipient of the request which would cause grave hardship to the other party to inspect and identify the relevant documents. The object of the rules was certainly to prevent these abuses …” (per McCracken J. at p. 280).

“In most instances if they [i.e. the documents sought by way of discovery] are relevant they will be necessary but there will be cases where that will not be so.”
The purpose of the amendment [to O.31, R.12] was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be.”

“It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out the crucial question is whether discovery is necessary for “disposing fairly of the cause or matter”. I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial. That is not to gainsay in any sense that the primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.”

(i). A deterioration in the flesh quality of the Plaintiffs’ oysters by reference to the standard of 6,000 Faecal Coli per 100g of oyster flesh, and
(ii). Illness in one or more human beings resultant on the matters described at (i) above.

1. At Condition 5 of the License it was stipulated that the Council should provide a level of treatment, including ultra violet treatment, which should ensure the following effluent quality at the inspection chamber in the channel downstream of the treatment plant:- the geometric mean of faecal coliforms per 100ml of effluent was required to be 250f.c. or less. This limit could be reviewed in event of variation of effluent inputs. Compliance with this requirement was to be measured on the basis of a 50 sample rolling programme, as applicable. 95% of all samples were required to be less than 1,000f.c./100ml. In the event of a result of over 1,000f.c./100ml, the Council was obliged immediately to contact the Minister to agree necessary action.
2. Condition 6 of the licence required that a detailed sampling programme to monitor compliance with Condition 5 be agreed between the Council and the Minister before any discharge was allowed through the pipelines. It was required that the programme would cover “inter alia” frequency and times of sampling and analysis centres and methodology. It was further provided that should the analysis show that the standards laid down were not being complied with, an immediate programme should be put in place to redress the situation. Costs of the sampling and monitoring was required to be borne by the Council.
3. Condition 7 of the licence provided that should a viral health problem arise in the adjacent oyster beds (being the Plaintiffs’ oyster fishery) an objective study of the sources of contamination would be carried out to determine the contribution, if any, by the Midleton municipal discharge to this contamination and that the standards laid down in Condition 5 would be reviewed. I observe in passing that this was clearly a very significant Condition and that the documentary records in respect of this and the follow up pursuant to and in respect of this Condition 7 could well be of serious significance to the issues in conflict.
4. Condition 8 provided that should a statutory viral classification system be laid down for molluscan production areas, the licence would be revised and amended if necessary to take this into account particularly having regard to Condition 5.
5. Condition 9 required the Council to ensure that any breakdown of the effluent treatment system would be notified immediately to the Department of Marine and Natural Resources Sea Fishery Officer and Fish Quality Officers so that any health problems posed by the oysters could be contained.
6. Condition 14 provided that, in the event of the non performance or non observance by the Council of any of the conditions contained in the licence, the Minister was entitled forthwith to terminate the licence without prior notice to the County Council.

“The principle was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the Plaintiff or Defendant and which were required for purely speculative investigation. The excessively wide application of Lord Justice Brett’s formulation of relevance has probably contributed more to the increase of the costs of English civil and commercial litigation in recent years than any factor other than the development of the photocopying machine. That formulation must not, in my judgment, be understood as justifying discovery demands which would involve parties to civil litigation being required to turn out the contents of their filing systems as if under criminal investigation merely on the off chance that something might show up from which some relatively weak inference prejudicial to the case of the disclosing party might be drawn. On the contrary, the document or class of documents must be shown by the applicant to offer a real probability of evidential materiality in the sense that it must be a document or class of documents which in the ordinary way can be expected to yield information of substantial evidential materiality to the pleaded claim and the defence to it in the broad sense which I have explained. If the document or class cannot be demonstrated to be clearly connected to issues which have already been raised on the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, if sufficient information were available, the application should be dismissed” (my underlining).

“It is quite clear that if the Plaintiff has evidence of sewage, raw sewage, being discharged into the sea that he does not need to know why it was that the plant failed on any given day. It adds nothing to the Plaintiffs’ case to determine that the reason it failed was because somebody switched the wrong switch or because a wall crumbled or whatever. There is no excuse, the Defendant can’t offer an excuse that they sub-contacted it to somebody else or that they have an insurance policy which covers it or anything”.

“… the Plaintiff has no difficulty in proving that the authorities acted in the way he has alleged they acted. He doesn’t need to prove why they acted in this way. His cause of action arises out of the fact that they did act in this way. Whether there was justification for such actions or not is neither here nor there. He certainly is alleging he suffered a loss as a result of such actions. The court will not enquire into why the actions were taken, nor will justification for the actions be a matter of enquiry by the court.”

“The point of discovery is to aid a party in the process of litigation; it is not to be invoked so as to enable a person to plead a cause of action which he is not otherwise in a position to do.”

“On all the established English and Northern Irish jurisprudence on discovery and judicial review and, indeed, on our own jurisprudence in relation to discovery generally, the mere making of an unsubstantiated allegation will not entitle a party to discovery. Otherwise it would be quite simple to mount a ‘fishing’ exercise in almost any case. But it is particularly inappropriate in a judicial review application where the merits are not an issue.”

“In the present case, I am satisfied that the Plaintiff has sufficiently specified the categories of documents in respect of which it seeks discovery, for the purpose of compliance with the rule. It does not follow that the court will not cut down the categories specified. It has also sufficiently verified that discovery of these categories is necessary for the fair disposal of the action and has complied with its obligation to give reasons why each category is required. I do not accept that the Defendant has shown that its discovery is not necessary. In particular, I reject that contention that Plaintiff has sufficient alternative means of proving the relevant facts to deprive it of its right to discovery. A notice to admit facts or documents is not a means of proof. It does not, I think, lie in the mouth of a party, which has denied almost all of the pleaded facts and put the opposing party to proof, to evade discovery by claiming that the facts can easily be proved. Competition cases have, as McCracken J. suggests in his judgment, the special features that any documents relating to anti-competitive behaviour, whether by being party to agreements or concerted practices or protecting a dominant position, are likely to be in the possession of the party engaged in that behaviour. Anti-competitive agreements or practices will be kept secret.”

“Given the normal meaning, purpose and effect of a compromise, the natural inference is that the common intention of the parties is that the compromise will henceforth govern their legal relationship in connection with the disputes in which they have been engaged and that, accordingly, those disputes would still be regarded as ‘dead’ even in the event of breach of the compromise. In the circumstances, it is submitted that recourse to the original claims will not be permitted unless, upon a true construction of the compromise, it is clear that this is what the parties intended.”

“It is also well established that where proceedings between parties are settled by an agreement to compromise, such as the Consent here, the agreement to compromise constitutes a new and independent contract between the parties made for good consideration and the original rights of the parties and causes of action become superseded by the compromise agreement: see Green v. Rozen [1955] 1 W.L.R. 741; MacCabe v. Joynt [1901] 2 I.R. 115; O'Mahony v. Gaffney [1986] I.R. 36.”

“[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 required. Blanket discovery became a thing of the past. The new rule was brought into being to ensure that 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.”

“Under the amended rule, there is a preliminary requirement that the applicant shall have previously applied by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered, then a reasonable time for discovery has to be allowed and thirdly, there has to be a failure, refusal or neglect to make the discovery or an ignoring of the request.”

“(b) All documents comprising notes, memoranda, reports, correspondence and any other documentation howsoever described concerning the initial choice by the First Named Defendant, and also the retention of the location of the sewage outfall point at Rathcoursey Point near the Plaintiffs’ oyster fishery both following its commission in 1988 and for use after the construction of the waste water treatment plant, including (but not limited to) all investigations carried out into alternative discharge sites and all or any complaints made to the First Named Defendant, its servant or agents, concerning the location of the said sewage outfall point.”

of the location of the sewage tank and outfall discharge point at Rathcoursey Point near the Plaintiffs’ oyster fishery both:-

“The extent of the consideration (if any) given by the First Named Defendant, its servants or agents, to the likely impact or effect on the Plaintiffs’ oyster fishery of the location of the outfall point at Rathcoursey Point and of the waste water treatment plant and the location of the outfall point at Rathcoursey Point.”

“A meeting was convened with the Department of the Marine to ascertain various impacts which they felt could also be of concern.”

“Telemetry records have been retained at the treatment plant for March, 2002, only. I understand the previous records were automatically overwritten on the computer disc when it was full.”

“The First Named Defendant hereby undertakes that it shall, on or before 30th June, 2000, bring into operation a Secondary Waste Water Treatment Plant incorporating ultra violet disinfection facilities, for the town of Midleton.”

“Reasons:
The documents referred to in this paragraph are relevant to the matters at issue in the proceedings. The First Proceedings are described at paragraphs 13 and 14 of the Statement of Claim. As pleaded at paragraph 16 of the Statement of Claim, those proceedings were settled between the Plaintiffs and the First and Second Named Defendants on 26th November, 1996, on terms which were set out in a “Consent” which was executed by the parties on that date. As appears from paragraph 17 of the Statement of Claim, various obligations were imposed on the First and Second Named Defendants under the terms of the Consent. So far as the Second Named Defendant is concerned, the Second Named Defendant agreed, with effect from 2nd December, 1996 until 30th June, 2000, to monitor the water and oyster flesh in the North Channel on a fortnightly basis on terms which were set out in a Schedule to the Consent. It is the Plaintiffs’ claim that the First and Second Named Defendants failed to comply with the terms of the Consent and relief is sought in that regard in these proceedings. While the First Named Defendant admits the First Proceedings and the compromise of those proceedings, the First Named Defendant denies that the terms of the Consent were conditions or fundamental terms. The First Named Defendant further denies that without the undertaking given at clause 4 of the Consent, that the Plaintiffs would not have compromised the First Proceedings. The First Named Defendant further denies that it knew or ought to have known that the Plaintiffs would rely upon its undertaking in relation to the bringing into operation of the secondary waste water treatment plant incorporating ultra violet disinfection facilities. In this regard reference may be made to paragraphs 27 to 33 of the First Named Defendant’s defence. Accordingly, the documents sought in this paragraph are relevant the matters at issue in the proceedings. It is necessary that the Plaintiffs obtain discovery of these documents. The Plaintiffs have no means of obtaining discovery of these documents other than by way of discovery. In the circumstances, discovery is necessary for the fair disposal of the claim. It will also result in a saving as to costs for the same reasons as are outlined in respect of category 1 above.”

The documents referred to in this paragraph are relevant to the matters at issue in the proceedings. The Plaintiffs plead in Statement of Claim that untreated sewage was discharged into the sea at Rathcoursey Point contaminating their fishery from in or around December, 1988 and that such discharge continued even after the secondary waste water treatment plant was allegedly brought into operation. The First Named Defendant has denied this. Further the First Named Defendant has denied that the alleged discharge has caused any deterioration in water quality. The First Named Defendant is likely to have monitored the nature and extent of the discharge which was taking place together with other sewage discharges into Cork Harbour. Documents in relation to that monitoring and any tests carried out on the sewage discharged would be highly relevant to matters at issue in the proceedings. Documents relating to other sewage discharges in to Cork Harbour are relevant to the matters at issue in the proceedings having regard to the denial by the First Named Defendant that the alleged discharge has caused any deterioration in water quality. The Plaintiffs have no means of obtaining access to those documents other than by way of discovery. The Plaintiffs believe that these documents are likely to support their claim. Therefore discovery of these documents is necessary to enable the fair disposal of the Plaintiffs’ claim. Furthermore discovery is likely to result in a saving as to cost for the reasons outlined in respect of category 1 above.”

Category Q: All documents including records, reports, studies, correspondence, minutes of meetings, drawings, logs and all other documents howsoever described concerning the occurrence, measurement and discharge of all storm water to the rivers adjacent to the Bailick 1 pump house from all overflows prior to, during and after the construction of the storm overflow holding tank.

“The State Defendants are willing to provide a copy of the Second Foreshore Licence to the Plaintiffs. In those circumstances the State Defendants do not consider that it is necessary for the Plaintiffs claim that all documents comprising all application and objections and all other documents concerning the consideration of the said applications and objections relating to the Second Foreshore Licence be discovered as the only relevant document is the actual Foreshore Licence itself. In those circumstances the request for additional documents over and above the Foreshore Licence would appear to be a fishing exercise on the part of the Plaintiffs.”

“While it is the case that the Plaintiffs do have a copy of the First Foreshore Licence and the Second Foreshore Licence, I am informed by the Second Named Plaintiff and believe that the Plaintiffs do not have any of the other documents referred to in this paragraph of the notice of motion. For example, I am informed by the Second Named Plaintiff and believe that the Plaintiffs do not have a copy of any of the correspondence between the First Named Defendant, Cork County Council, (“the Council”) and the Minister for the Marine and Natural Resources and his predecessor, the Minister for the Marine, (the “Minister”). It is notable that at paragraph 18(ii) of the affidavit which he has sworn on behalf of the Council, Mr. Ó Breasail has confirmed that the Council is prepared to make discovery of such correspondence. There appears to be no reason why the State Defendants should not make discovery of such correspondence together with the other documents referred to in this paragraph. I remain of the view that with the exception of the First Foreshore Licence and the Second Foreshore Licence (copies of which the Plaintiffs have), the Plaintiff do require discovery of the further documents referred to in this paragraph. I say and believe that the consideration by the Minister and the officials in his Department given to the Council’s request for the Second Foreshore Licence is critical in assessing the approach taken by the Minister and his Department to the protection of the Plaintiffs’ oyster fishery. While various conditions were prescribed in the Second Foreshore Licence (as pleaded at paragraph 27 of the Statement of Claim), the Plaintiffs require to ascertain the extent to which specific consideration was given to the protection of the Plaintiffs’ oyster fishery in the Ministers’ considerations concerning the grant of the licence and concerning the conditions which the Minister determined to impose. These are, I believe, all relevant in determining whether there was compliance with the terms of the Consent and for the purpose of the further causes of action asserted by the Plaintiffs in the proceedings. I say and believe therefore, that discovery of these documents is necessary both for the proper prosecution of the Plaintiffs’ claim and to save costs.”

“The documents described in this paragraph are relevant to matters at issue in these proceedings. As is pleaded in the Statement of Claim, the Plaintiffs and others objected to the granting of the First Foreshore Licence in November, 1982 under which the First Named Defendant, its servants or agents commenced the discharge of raw untreated sewage into the sea at Rathcoursey Point at some time in or prior to December, 1988 when the Midleton sewage scheme was officially opened. The Statement of Claim pleads that objections were made by the Plaintiffs and by others and that the Plaintiffs made representations to the Second Named Defendant in relation to the serious deterioration in water quality as a result of this discharge of raw untreated sewage into the sea under the Midleton Sewage Scheme. Notwithstanding the earlier proceedings brought by the Plaintiffs which resulted in the execution of a Consent (the terms of which are described at paragraph 17 and 18 of the Statement of Claim), and notwithstanding the ongoing difficulties being experienced by the Plaintiffs’ oyster fishery, the Second Foreshore Licence was granted by the Second Named Defendant to the First Named Defendant. Further and ongoing problems were experienced by the Plaintiffs as a result of the continued discharge of untreated or inadequately treated sewage into the sea from the outfall at Rathcoursey Point. Following the location of the outfall point to Rathcoursey in 1988, the Plaintiffs experienced and continued to experience serious outbreaks of illness in consumers of the Plaintiffs’ oysters. These were and are facts within the knowledge of the Defendants, the Plaintiffs having advised them at all times both verbally and by correspondence about the problems experienced. The Plaintiffs objected to the retention of the outfall point at Rathcoursey. However, despite the Plaintiffs’ pleas and objections, the outfall point was never relocated and was further licensed by the Second Named Defendant as the outfall for the effluent from the waste water treatment plant under the Second Foreshore Licence. Documents relating to the location of the sewage outfall point at Rathcoursey Point are, therefore, relevant to matters at issue in the proceedings. Furthermore, it is necessary that the Plaintiffs obtain discovery of these documents for the fair disposal of their claim. The Plaintiffs have no means of obtaining access to such of these documents as are in the possession, power or procurement of the Second Named Defendant, his servants or agents, other than by way of discovery. Furthermore, discovery is likely to result in a saving as to costs for the reasons outlined in respect of category (1) above.”

“It is this problem which imposes on the solicitor to the party making discovery the duty to take positive steps to ensure that his client appreciates the extent of the obligation imposed by an order for discovery. The solicitor owes a duty to the Court carefully to go through the documents disclosed by the client to make sure, as far as possible, that no relevant document has been withheld from disclosure. (See Woods v. Martin’s Bank Limited [1959] 1 Q.B. 55) However the deponent cannot abdicate his duty in relation to disclosure to his legal advisers nor could the lawyer accept the responsibility of inspecting all of the documents in the possession of his clients. Careful consultation between the solicitor and the client should enable the deponent to extract all documents in his possession or procurement which are relevant – in the wide sense to which that word is used in relation to discovery – to matters in issue in the proceedings and to obtain the advice of his lawyers, if necessary, in relation to any particular documents the discoverability of which might be in doubt.”

The documents referred to in this paragraph are relevant to the matters in issue in the proceedings. At paragraph 23 to 28 of the Statement of Claim, the Plaintiffs refer to the First Named Defendant’s application to the Second Named Defendant for the Second Foreshore Licence which was granted by the Second Named Defendant in September 1999. In that application, the First Named Defendant proposed retaining the outfall at Rathcoursey point but represented to the Second Named Defendant that the discharge would change from contaminated raw sewage to a secondary treated effluent complete with ultra violet disinfection. The documents concerning the extent to which the Second Named Defendant gave consideration to the likely impact to the Plaintiffs’ oyster fishery are clearly relevant to the Plaintiffs’ claims that notwithstanding the new plant and notwithstanding the alleged operation of the ultra violet disinfection system, raw untreated sewage continued to be discharged into the sea at Rathcoursey Point further contaminating the Plaintiffs’ oyster fishery. These matters are denied by the Second Named Defendant in its defence. The Plaintiffs have no means of obtaining access to these documents other than by way of discovery. Discovery will greatly assist the Plaintiffs in substantiating the detailed allegations made against the Second Named Defendant in the Statement of Claim. In these circumstances, it is necessary that the Plaintiffs obtain discovery for the fair disposal of their claim. Furthermore, discovery is likely to result in a saving as to costs for the reason outlined in category (1) above.”

“The documents referred to in this paragraph are relevant to matters at issue in the proceedings. The Plaintiffs have pleaded in the Statement of Claim the terms of the certificate issued by the Minister for the Environment and Rural Development on 14th July, 1997, in relation to the works proposed for the construction of the sewage treatment plant at Midleton. It is expressly pleaded (at paragraph 21 of the Statement of Claim) that it was on the basis of the figures disclosed in the EIS that the Minister certified the works in accordance with the said certificate. It is further pleaded (at paragraph 22 of the Statement of Claim) that the First Named Defendant and its servants or agents were obliged to comply with the terms of the certificate in the manner more particularly pleaded therein. In their defence the Second, Third and Fourth Named Defendants do not admit the matters alleged at paragraph 20 of the Statement of Claim and further deny that the Plaintiffs, are entitled to rely on the said Certification in these proceedings. They further deny the contents of the addendum to the EIS pleaded at paragraph 21 of the Statement of Claim. They also plead that the EIS has no legal effect and that the Plaintiffs are not entitled to rely on the terms of the EIS in these proceedings. Finally in this regard those Defendants do not admit the alleged obligations on the First Named Defendant (see paragraphs 21 to 25 of their defence). Having regard to the nature of the claim in these proceedings as disclosed in the Statement of Claim, the Certification of the said works by the Minister for the Environment and Rural Development and the assessment (if any) of the adequacy and/or efficacy of those works by or on behalf of the Minister are of central importance to the Plaintiffs’ claim in these proceedings. The documents referred to in this paragraph are, therefore, clearly relevant to matters at issue in the proceedings. It is necessary that the Plaintiffs obtain discovery of these documents. The Plaintiffs have no means of obtaining these documents other than by way of discovery. Since they go to matters which are of central importance to the claim, discovery of these documents would greatly assist the Plaintiffs in making their claim in these proceedings. Without them, the Plaintiffs would be deprived of a legitimate juridical advantage in the proceedings. In those circumstances, it is necessary that the Plaintiffs obtain discovery of these documents for the fair disposal of their claim. Furthermore, discovery is likely to result in a saving as to cost for the reasons outlined in respect of category 1 above."

Category (g) “All documents comprising correspondence, reports, test results and data, notes, memoranda and all other documents howsoever described concerning:-
(g) (a) The monitoring by the Second Named Defendant of the water and oyster flesh in the North Channel between 2nd December, 1996, and 30th June, 2000, on the terms set forth in the "schedule" attached to the Consent.” The State Defendants have agreed to make discovery in terms of paragraph(g)(a) above.
“(b) The monitoring by the Second Named Defendant of the water and oyster flesh in the North Channel from 1st July, 2000 to the present date and all other CEFAS laboratory results taken from the North Channel by or on behalf of the Second Named Defendant or furnished to him and all other results from samples taken around the Irish coast over the same period and sent to the same laboratory.
(c) The conditions prescribed by the Second Named Defendant for the discharge to be achieved by the treatment plant, together with the requirements for monitoring, recording and the storage of data obtained;
(d) The monitoring by the Second Named Defendant, its servants or agents, of compliance by the First Named Defendant, its servants or agents with the conditions of the First and Second Foreshore Licences including all correspondence between the First Named Defendant and the Second Named Defendant and all operational performance data supplied in relation to the First Named Defendant’s compliance with the said conditions;
(e) The reporting of all faults, failures or breakdowns of the plant by the First Named Defendant to the Second Named Defendant whether pursuant to condition 9 of the Second Foreshore licence or otherwise and all investigations undertaken into the remedying of such faults, failures or breakdowns whether arising as a result of the design or the operation of the waste water treatment plant and sewerage system.”
As for Paragraph 15 (b) of the affidavit of Maria Greene, she says that the State Defendants are only willing to discover documents from 1st July, 2000 to the date of the institution of the proceedings, not to the date of the swearing of the affidavit of discovery, or indeed to date. There is a bald statement that the Plaintiffs are not entitled to documentation after the commencement of the proceedings and that neither are the Plaintiffs entitled to documentation relating to monitoring in geographical areas other than those in which the Plaintiffs are operating. She submits that discovery under category (g)(b) should be limited to the North Channel, Cork Harbour, also she submits that documentation in relation to "the Irish coast" is far too wide ranging and the Plaintiffs have not even attempted to establish why this would be either relevant and/or necessary to the proceedings. At paragraph14 of his replying affidavit, Mr. Martin says that there is no reason why the discovery in respect of the documentation should be limited to the date of the commencement of the proceedings. The Plaintiffs’ complaint is of an ongoing problem and the State Defendants should therefore be required to make discovery of documents up to the date on which such discovery is made as is usual and not up to the date on which the proceedings were commenced. From my note I think that the Plaintiffs are content with the geographical limitation in respect of the monitoring and CEFAS Laboratory results from 1st July, 2000, to the present date being those taken from the North Channel rather than other results from samples taken around the Irish coast over the same period and sent to the same laboratory. Counsel can inform me if I have misunderstood what was agreed on this. As for the suggestion that there should be a cut off point at the date of the plenary summons, since this is an ongoing problem the State Defendants should make discovery up to the date of the swearing of the affidavit. Otherwise there would be the peril that, as this is an ongoing and continuing claim, a further set of proceedings could be issued to cover the claim and loss during the period from the date of issue of the plenary summons to the date of trial or indeed into the future if there is a likelihood of the torts continuing and there being a claim into the future. Accordingly an order should be made in the terms of paragraph (g)(b) for discovery as sought from 1st July, 2000, to the date of the swearing of the affidavit.

The five categories referred to in this paragraph are relevant to the matters at issue in the proceedings. Under the "Schedule" attached to the Consent (which was to form part of the Consent) in which the first proceedings were settled, the Second Named Defendant agreed with effect from 2nd December, 1996, until 30th June, 2000, to monitor the water and oyster flesh in the North Channel on a fortnightly basis and on further terms which were set out in the Schedule. The Second, Third and Fourth Named Defendants have denied the summary of the terms of the Consent pleaded at paragraph 17 of the Statement of Claim (at paragraph12 of their defence). They plead that their obligations were limited to the obligations set out at paragraphs 2, 3, 7 and 8 of the Consent. The Plaintiffs have pleaded that the First Named Defendant its servants or agents continued to discharge untreated sewage into the sea at Rathcoursey Point nearer the Plaintiffs’ oyster fishery which caused and continued to cause contamination of the fishery and of the oysters harvested from the fishery (see paragraph 32 of the Statement of Claim). Documents relevant to the monitoring which the Second Named Defendant agreed to carry out under the terms of the Consent are relevant to the Plaintiffs’ claim in the proceedings. It is also necessary that the Plaintiffs obtain discovery of these documents in order to demonstrate the extent to which the water quality continued to deteriorate following the terms of the Consent. The First Named Defendant was obliged under the terms of the Second Foreshore Licence to agree a detailed sampling programme with the Second Named Defendant before any discharge was allowed through the pipelines (see for example, condition 6 of the Second Foreshore Licence). The First Named Defendant was also obliged under condition 9 of that licence to ensure that any breakdown of the effluent treatment system was notified immediately to the Second Named Defendant's servants or agents being the Department of Marine and Natural Resources, Sea Fishery Officer and Fish Quality Officers so that any health problems posed by the oysters could be contained. Condition 14 of the Second Foreshore Licence provided that in event of the breach, non performance or non observance by the First Named Defendant of any of the conditions contained in the Second Foreshore Licence, the Second Named Defendant was entitled forthwith to terminate that licence without prior notice to the First Named Defendant. The Plaintiffs plead that the First Named Defendant failed to comply with fundamental terms and conditions of the Second Foreshore Licence and that the Second Named Defendant, its servants or agents, owed to the Plaintiffs a duty of care in prescribing the terms and conditions of that licence so as to ensure that the Plaintiffs’ interests were not adversely effected or, alternatively, that the adverse effects to the Plaintiffs were kept to a minimum. Documents relating to the monitoring by the Second Named Defendant, its servants or agents, under the Second Foreshore Licence are, therefore, relevant to the matters at issue in the proceedings. It is necessary that the Plaintiffs obtain discovery of these documents. The Plaintiffs have no means of obtaining access to any of these documents other than by way of discovery. Accordingly it is necessary that the Plaintiffs obtain discovery of these documents for the fair disposal of their claim. Discovery will also result in a saving as to costs for the reasons outlined in respect of Category 1 above.”

"As regards the restriction sought to be imposed in respect of category (c) it is difficult to see what documents would remain if that restriction applied. Documents provided in contemplation of or as part of the application for the Second Foreshore Licence clearly fall within subcategory (c) of this paragraph of the notice of motion and there is, I believe, no basis in which the restriction sought in respect of this subcategory should be imposed."

Category (j): “All documents comprising correspondence, reports, test results and data, complaints, minutes of meetings and all other documents howsoever described relevant to the Direction given by the Second Named Defendant to the Plaintiffs on 8th January, 2001, only to sell oysters from production areas that would not present a risk of illness to persons consuming the oysters and directing the Plaintiffs to take appropriate measures to ensure the safety of their product.
(k) All documents comprising notes, memoranda, reports, test results and data, minutes of meetings and correspondence concerning the Direction given by the Second Named Defendant to the Plaintiffs on 20th February, 2002 on the further closure of the Plaintiffs’ oyster fishery.
(l) All documents comprising notes, memoranda, reports, test results and data, minutes of meetings and correspondence and all other documents howsoever described concerning the closure of the Plaintiff's oyster fishery on 21st June, 2002 by the Second Named Defendant.
(m) All documents comprising notes, memoranda, reports, test results and data, minutes of meetings and correspondence and all other documents howsoever described concerning the closure of the Plaintiffs’ oyster fishery by the Second Named Defendant on 15th October, 2002.
(n) All documents comprising notes, memoranda, reports, test results and data, correspondence and minutes of meetings and all other documents howsoever described concerning the decision taken by the Minister for Communications, Marine and Natural Resources (the successor to the Second Named Defendant) prohibiting the harvesting of oysters in the North Channel East of Cork Harbour, County Cork effective from 25th February, 2003, and withdrawing the prohibition on the harvesting of oysters in the North Channel West of Cork Harbour, County Cork with effect from the same date which decisions were published in the national press on 27th February, 2003, and which remain in force to date."

"The documents referred to in this paragraph are relevant to the matters at issue in the proceedings. At paragraph 51 of the Statement of Claim it is pleaded that the Second Named Defendant issued certain directions to the Plaintiffs on 8th January, 2001, arising from the risk of illness to persons consuming the Plaintiffs’ oysters as a result of the exposure to the sewage from the Middleton Sewage Scheme. As pleaded at paragraph 51 of the Statement of Claim, the Plaintiffs had no option but to comply with the Second Named Defendant's advice and request and the Plaintiffs’ oyster fishery remained closed from 8th January, 2001 until 27th July, 2001. These matters are admitted at paragraphs 42 to 45 of the defence of Second, Third and Fourth Named Defendants. It is pleaded by them that the purpose of the closure was to safeguard human health and safety. Documents relevant to this Direction and to the reasons for the closure are relevant to the matters at issue in the proceedings. The Plaintiffs require disclosure of these documents in order to demonstrate to the Court the extent of the damage and interference to their business and to the reasons therefore stated by the Second Named Defendant. The Second Named Defendant is likely to have documents on the basis of which it took the said decision and issued the said Direction to the Plaintiffs. The Plaintiffs have no means of obtaining those documents other than by way of discovery. It is necessary that the Plaintiffs obtain discovery of those documents for the fair disposal of their claim. Furthermore, discovery is likely to result in a saving as to costs for the reasons outlined in category 1 above.”
At paragraphs 18 and 19 of the affidavit of Maria Greene, she says in reply to Mr. Martin’s reasons for the request for documents in category category (j) that:
"In respect of the request for documents relevant to the Direction of 8th January, 2001, the State Defendants have admitted the Direction at paragraphs 42 - 45 of their defence. The State Defendants are willing to provide a copy of the Direction given by the Second Named Defendant to the Plaintiffs on 8th January, 2001. In those circumstances the State Defendants do not consider that it is necessary for the Plaintiff's claim that all documents relevant to the Direction be discovered as the only relevant document is the actual Direction given by the Second Named Defendant to the Plaintiffs on the 8th January, 2001 itself. In those circumstances the request for additional documents over and above the Direction given by the Second Named Defendant to the Plaintiffs on 8th January, 2001, would appear to be a ‘fishing’ exercise on the part of the Plaintiffs.
Moreover, the Plaintiffs seek discovery of those documents to demonstrate to the Court the extent of the damage and interference to their business and the reasons therefor stated by the Second Named Defendant. The documents sought by the Plaintiffs will not assist the Plaintiffs in ascertaining the extent of the damage and interference to their business. The Plaintiffs plead that the damage and interference arose from the Direction itself and not from any underlying documents.”

“These documents are relevant to the matters at issue in the proceedings. The Direction given by the Second Named Defendant to the Plaintiffs on 20th February, 2002, is described at paragraph35 of the Statement of Claim. The second, Third and Fourth Named Defendants admit that that Direction was given at paragraph 47 of their defence. Documents relevant to this Direction are relevant to the matters at issue in the proceedings. The Second Named Defendant is likely to have documents in its possession or power concerning that Direction. This issue is also of central importance to the Plaintiffs’ claim in the proceedings. The Plaintiffs have no means of obtaining access other than by way of discovery. Discovery of these documents is necessary to enable the fair disposal of the Plaintiffs’ claim. Furthermore discovery is likely to result in a saving as to costs for the same reasons as are outlined in respect of Category I above. The documents sought are those which concern the Direction given by the Minister to the Plaintiffs on 20th February, 2002 which further closed the Plaintiffs’ oyster fishery. The Plaintiffs’ fishery was closed on foot of that Direction from 20th February, 2002, until 26th April, 2002. For the same reasons as are outlined above in respect of category (j), documents underlying and concerning the Direction and not merely the Direction itself are relevant. Accordingly there should be discovery in the terms of category (k) and the Plaintiffs are so entitled.
Category (L): All documents comprising notes, memoranda, reports, test results and data, correspondence, minutes of meetings and all other documents howsoever described concerning the closure of the Plaintiffs’ oyster fishery on 21st June, 2002, by the Second Named Defendant.

Category (m): All documents comprising notes, memoranda, reports, test results and data, correspondence, minutes of meetings, and all other documents howsoever described concerning the closure of the Plaintiffs’ oyster fishery by the Second Named Defendant on 15th October, 2002.

“The documents described in this paragraph are relevant to the matters at issue in the proceedings as they concern the continuing and ongoing effects of the Defendants’ unlawful actions and omissions on the Plaintiffs and their business. On 15th October, 2002, the Plaintiffs’ oyster fishery was again closed by the Food Safety Authority of Ireland and by the Second Named Defendant both for the sale of any production from the fishery and for the depuration of any shellfish brought in from outside. This closure occurred after the delivery of the Statement of Claim on 20th August, 2002, but documents concerning the closure are relevant to the matters at issue in the proceedings as they show the continued effect on the Plaintiffs and their business of the Defendants’ unlawful actions and omissions. The Second Named Defendant is likely to have documents in relation thereto. The Plaintiffs have no means of obtaining access to those documents other than by way of discovery. They require those documents (in addition to the documents referred to in the previous categories) in order to demonstrate the reasons for the closure on 15th October, 2002, and the impact of that closure on the Plaintiffs’ business. The Plaintiffs believe that discovery of these documents would greatly assist them in the prosecution of their claim. In those circumstances discovery of these documents is necessary for the fair disposal of the Plaintiffs claim. Such discovery is also likely to result in a saving as to costs for the same reasons as are outlined in respect of category 1 above.”

“the Plaintiffs failed to report the incidence of illnesses to these Defendants and caused or contributed to the alleged incidents of illness which incidents are denied.”

Category N: “All documents comprising notes, memoranda, reports, test results and data, correspondence, minutes of meetings and all other documents howsoever described concerning the decision taken by the Minister for Communications, Marine and Natural Resources (the successor to the Second Named Defendant) prohibiting the harvesting of oysters in the ‘North Channel East’ of Cork Harbour, County Cork, effective from 25th February, 2003, and withdrawing the prohibition on the harvesting of oysters in the ‘North Channel West’ of Cork Harbour, County Cork, with effect from the same date which decisions were published in the national press 27th February, 2003, and which remain in force to date.”

“The documents described in this paragraph are relevant to the matters at issue in the proceedings as they also concern the continuing and ongoing effects of the Defendants’ unlawful actions and omissions on the Plaintiffs and their business. On 27th February, 2003, a notice was published in the national press (including the Irish Examiner newspaper) which referred to the following decisions made by the Minister for Communications, Marine and Natural Resources (the successor to the Second Named Defendant). The decision in effect split the North Channel of Cork Harbour into the ‘North Channel East’ and the ‘North Channel West’. The Plaintiffs’ oyster fishery fell within the North Channel East. In the first of the said decisions, the subject of the said notice, the Minister prohibited the harvesting of oysters in the North Channel East with effect from 25th February, 2003. Pursuant to that decision, no depuration or re-immersion of shellfish can take place at the approved depuration centres in the area during the prohibition. The notice stated that scientific monitoring of the area was ongoing and that the withdrawal of the prohibition would be published as and when the Minister decided that it was suitable to harvest the oysters from the area affected. The second decision by the Minister was to withdraw the prohibition on the harvesting of oysters in the North Channel West which was put in place on 15th October, 2002, and which withdrawal was to take place from 25th February, 2003. These events occurred after the delivery of the Statement of Claim but are clearly relevant to the claim by the Plaintiffs in that they show the continuing and ongoing effect of the Defendants’ actions and omissions on the Plaintiffs’ business. The effect of these decisions is that while the Plaintiffs’ oyster fishery was kept closed and no depuration or re-immersion of shellfish could take place, a neighbouring oyster fishery (merely a few hundred metres away) was opened and permitted to harvest oysters. The Plaintiffs, through their solicitors, sought to ascertain the basis for and the reasons for these decisions but received no substantive response from the Second Named Defendant or from the Chief State Solicitor. Since documents concerning these decisions are relevant to the ongoing and continued effects on the Plaintiffs’ business of the unlawful acts and omissions which are the subject of these proceedings, the documents described in this category are relevant to matters at issue in these proceedings. The Plaintiffs have no means of obtaining access to these documents other than by way of discovery. The Plaintiffs require these documents (in addition to the documents referred to in the previous categories) in order to ascertain and demonstrate the reasons for the continued closure of the Plaintiffs’ oyster fishery and the impact of that closure on the Plaintiffs’ business. The Plaintiffs believe that these documents are likely to assist them in the prosecution of their claim and on that basis discovery is necessary for the fair disposal of that claim. Such discovery is also likely to result in a saving as to costs for the reasons outlined in category 1 above.”

Category O: “All documents in the possession or power of the Second Named Defendant concerning the request by the Plaintiff for the relocation of the outfall point from Rathcoursey Point to a location as far as possible from the oyster beds which had been repeatedly requested by the Plaintiffs and the documents concerning the consideration and assessment of those requests including the data for and assessments in respect of all sewage discharges to Cork Harbour.”

“The documents referred to in this paragraph are relevant to the matters at issue in the proceedings. At paragraph 44 of the Statement of Claim, it is pleaded that the Second Named Defendant failed to take any or adequate steps to relocate the outfall point for the sewage from Rathcoursey Point to a location as far as possible from the oyster beds which had been repeatedly requested by the Plaintiffs. It is pleaded at paragraphs 61 and 62 of the defence delivered on behalf of the Second, Third and Fourth Named Defendants that those Defendants had no statutory obligation to take the steps alleged and that it was not within their power to relocate the outfall point. Documents relevant to the requests by the Plaintiffs to move the outfall point are relevant to the matters at issue in the proceedings. It is necessary that the Plaintiffs obtain discovery of these documents in order to demonstrate the extent to which the Second Named Defendant was on notice of the steps which the Plaintiffs were requiring to be taken in order to minimise the adverse effects on their oyster fishery as a result of the operation of the Midleton Sewage Scheme. These documents are necessary in order to enable to the Plaintiffs to further their claim that the Second Named Defendant acted negligently in this regard. Accordingly, discovery of these documents is necessary for the fair disposal of the Plaintiffs’ claim. Discovery will also result in a saving as to costs for the same reasons as are outlined in respect of category 1 above.”

“The request by the Plaintiffs for the relocation of the outfall point from Rathcoursey Point, should the new outfall point lead to pollution of the Plaintiffs’ beds, was first made to the Department on 1st December, 1988. Subsequently, following the catastrophic number of cases of illness reported in the Autumn of 1991, further requests to relocate the outfall were made on 5th, 11th, 18th November, 1991; 27th, 29th January, 1992; 19th, 22nd, 24th February, 1992; 12th March, 1992; 23rd April, 1992; 31st July, 1992; 5, 6 August, 1992; by a meeting in the offices of the Second Named Defendant on 25th September, 1992; 26th September, 1992; 3rd February, 1993; 2nd March, 1993; 17th May, 1993; 18th February, 1995; 12th March, 1996; 9th August, 1996 and 21st July, 1997. Although the requests were first made prior to the date of the Consent, for reasons already outlined in this affidavit it is not accepted that the State Defendants are entitled to restrict discovery to the period arising after the date of that Consent. Documents which predated the Consent and which fall under this heading are relevant and should be discovered.”

“I am informed by the Second Named Plaintiff and believe that the decision concerning the siting of the inspection point in order to determine the quality of the effluent which would affect the oyster fisheries in the North Channel of Cork Harbour is of considerable importance in this case. Having regard to the claim being made by the Plaintiffs against the Minister, the Plaintiffs ought to be provided with discovery of documents which would demonstrate why it was decided to locate this point some miles from where the effluent is discharged into the sea as a result of which it only covers a fraction of the effluent discharged from the town of Midleton, whilst an equally large volume of effluent containing human sewage discharges from the town into the sea via the industrial sewer and elsewhere go unmonitored. This is an important issue in the case and I believe that the State Defendants ought to be required to make discovery of these documents.”