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BETWEEN

THE HIGH COURT

LIDL IRELAND GMBH

AND

[2019] IEHC 638

[2019 No. 3544 P.]

PLAINTIFF

BILO PROPERTY HOLDINGS LTD, CENTZ STORE 7 LTD & CENTZ STORE 9

LTD

DEFENDANTS

JUDGMENT of Mr. Justice Barr delivered on 6th day of September, 2019

Introduction

1. In this application, the second and third defendants are seeking discovery of

documents from the plaintiff. The action arose in the following way: the plaintiff was the

owner of a shop unit at Martyr's Road, Nenagh, Co. Tipperary (hereinafter "the old Lidl

store"). The first defendant was the owner of a site nearby at McDonagh Street, Nenagh,

Co. Tipperary

(hereinafter "the new Lidl store"). The first defendant agreed to sell

the new Lidl store to the plaintiff. The plaintiff agreed to sell the old Lidl store to the first

defendant.

2. In the contracts agreed between the plaintiff and the first defendant and in the

subsequent Deeds of Transfer, the first defendant agreed to a restrictive covenant in favour

of the plaintiff. Under this covenant the first defendant was prohibited from carrying out

any "restricted use" in the old Lidl store. "Restricted use" was defined as meaning "food

retail and/or off–licence and/or any illegal or immoral use or noisy, noxious or offensive

trade including but not limited to sex shop, methadone clinic, cattle market or abattoir".

3. On 2nd May, 2019 the second and third defendants became tenants to the first

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defendant of the old Lidl store. The plaintiff has alleged that the second and third

defendants openly engaged in the sale of food at this premises. They alleged that there

were multiple and assorted food items for sale at the premises, including confectionery,

pasta, multiple sauces, rice, stir fry pastes, condiments, biscuits, snacks, tinned soups,

crisps, cereals, soft drinks, ready meals and crackers.

4. The plaintiff claimed that these activities constituted a breach of the restrictive

covenant in the contracts. They sought interim relief against all three defendants. On the

second day of the hearing of that application, the parties reached a compromise whereby,

without prejudice, the second and third defendants agreed to stop selling any food products

at the premises pending the trial of the action. In the substantive action, the plaintiffs are

seeking a permanent injunction restraining the defendants from selling, or permitting the

sale of food products from the old Lidl store in breach of the restrictive covenant.

The Defences of the First, Second and Third Defendants

5. In its defence, the first defendant has pleaded by way of preliminary objection, that

it has now caused the third defendant to sign a lease which contains the necessary

restrictive use provisions to the satisfaction of the plaintiff. Accordingly, it has pleaded that

save for the issue of damages and costs, the plaintiff's action is now moot.

6. The first defendant admitted that it purchased the old Lidl store subject to the

restrictive covenant set out in the third schedule of the Deed of Transfer and Conveyance

dated 12th March, 2019.

7. The first defendant disputes the plaintiff's interpretation of the covenant, or its

interpretation of the scope thereof. In particular, the first defendant has pleaded that the

natural and ordinary meaning of the words "for the use as a food retail and/or off-licence"

means that the premises as a whole cannot be used for food retail and/or off-licence. It

pleads that the wording of the covenant does not restrict the sale of food on part of the

premises, provided the premises as a whole does not constitute a food retailer. It is

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admitted and accepted that the restrictive covenant excludes the plaintiff, or his successors

in title, using the premises as a supermarket and/or off-licence.

8. The first defendant pleads that the intention of the parties in using the words "use

as a food retail and/or off-licence" was to ensure that a competitive supermarket could not

be set up in proximity to the new Lidl store. It further pleads that the restriction contained

in the restrictive covenant was to ensure that a competitive supermarket could not set up in

proximity to the plaintiff on the new Lidl store and was not for the purposes of excluding

the sale of any item of food on the old Lidl store, provided the sale of such items of food

did not amount to a food retailer.

9. The first defendant further pleaded that it had made the second and third defendants

aware of the restrictive covenant prior to them entering into the lease. It has been pleaded

that it was represented to the first defendant by the second and third defendants that a

minimal range of chocolate bars would be sold at its premises, together with a minimal

number of units of bottled water. The first defendant pleaded that it permitted the second

and third defendants to enter into occupation of the premises on foot of this representation.

The first defendant also denied that the sale of such items constituted a breach of the

restrictive covenant.

10. In their defence, the second and third defendants pleaded that they are a mixed

retail store and while retailing in confectionery, dried foods, soft drink and non-alcoholic

beverages and tobacco, those items did not form the predominant offering of the

defendants at their store.

11. The second and third defendants further pleaded that the restrictive covenant was

not a valid restrictive covenant in circumstances where the covenant had not taken effect

when the second and third defendants entered into a contractual agreement to enter into the

lands. They pleaded that it amounted to a Restraint of Trade clause and was in breach of

the Competition Act 2002 and did not provide for a dominant and servient tenement. They

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denied that they were a food retailer. They pleaded that the restriction on food retail was

intended to ensure that a direct competitor did not enter into occupation of the lands.

12. The second and third defendants pleaded that they are engaged in the market of

low-cost mixed variety retail, offering for sale a large variety of products including

homewares, kitchenware, appliances, children's toys and gadgets. They do not sell fresh

meat, poultry, fish, fresh fruit and vegetables, frozen food and chilled foods, limiting their

offering to confectionery, soft drinks and non-alcoholic beverages and dried foods. As

such, it was denied that they were food retailers or off-licence operators contrary to the

restrictive covenant.

13. The second and third defendants further pleaded that having regard to the size of

the new Lidl store and having regard to the geographic market they were a dominant

undertaking within that market. It was pleaded that by entering into a restrictive covenant

with the first defendant they had engaged in an anti-competitive practice contrary to the

Competition Act 2002. They further pleaded that as a result of this allegedly anti-

competitive behaviour on the part of the plaintiff, they have suffered loss and damage.

They claimed for this loss and damage in a counterclaim.

The Present Application

14. In this application the second and third defendants seek discovery of two broad

categories of documents, which they say are relevant and necessary to their defence of the

action. In particular, they argue that the documentation sought is relevant to their plea that

the term "food retail" in the restrictive covenant does not cover the sale by them of very

limited food products, such as chocolate bars, mineral water and some dried food products.

15. The second and third defendants maintain that as they are strangers to the contracts

entered into between the plaintiff and the first defendant, and to the negotiations leading up

to those contracts, they are entitled to see any documentation from the pre-contract stage

which touches upon the meaning of the restrictive covenant and/or the meaning of the term

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"food retail".

16. In support of this assertion counsel for the second and third defendants, Mr. Rowan

B.L. referred to the decision of the Supreme Court in Stapleyside Company v Carraig

Donn Retail Ltd IESC 60, and in particular to the dicta of Clark J. (as he then was)

at paragraphs 6.2 and 6.3:

"[6.2] If I might digress, it is of some importance to emphasise that those engaged

in commerce are often critical of what they might see as barriers placed in the way

of doing sensible business by lawyers who are concerned with attempting to put

arrangements agreed into a legally acceptable form. It must be accepted that there

may be times when this can have the effect of slowing down the conduct of business.

However, as this and many other cases amply demonstrate, the problem with

arrangements not being adequately converted into a legally recognisable form is

that significant problems can be encountered if things go wrong. In such

circumstances, a court is required to do the best it can with the language used by

the parties (the text) to be construed in the light of all the circumstances in which

the agreement was entered into (the context). But it is important to acknowledge

that both text and context are relevant in the proper interpretation of commercial

documents.

[6.3] Those principles of interpretation (the ‘text in context’ method) apply to no

lesser extent in the field of property documentation. To ignore context is to ignore

the well accepted fact that words used in agreements would be seen by any

reasonable person having knowledge of the surrounding circumstances as being

potentially affected as to their meaning by the context in which the agreement was

entered into in the first place. But equally, the text must be given all appropriate

weight, for it is in the terms of that text that the parties have settled on their

arrangement."

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17. Counsel also referred to the judgment of Clark C.J. in Jackie Green Construction

Ltd v Irish Bank Corporation in special liquidation IESC 2 and in particular to

paragraph 5.3 thereof, where Clark C.J. cited his earlier judgment in Law Society v The

Motor Insurers Bureau of Ireland IESC 31 where he stated:

"To fail to have sufficient regard to the text of such a document is to give

insufficient weight to the fact that it is in the form of the document in question that

legal rights and obligations have been determined. However, an over dependence

on purely textual analysis runs the risk of ignoring the fact that almost all text

requires some degree of context for its proper interpretation. Phrases or

terminology rarely exist in the abstract. Rather the understanding which

reasonable and informed persons would give to any text will be informed by the

context in which the document concerned has come into existence.

Perhaps it is fair to say that the main underlying principle is that a document

governing legal rights and obligations should be interpreted by the Courts in the

same way that it would be interpreted by a reasonable and informed member of the

public who understands the context of the document in question. Such a person

would, necessarily, pay a lot of attention to the text but will also interpret text in its

proper context."

18. Counsel also referred to paragraph 5.5 of the judgment where it was stated: "In all

cases the text is important, but part of the context in which that text needs to be considered

is the manner in which that text was arrived at, and the circumstances which led to the text

being required and/or agreed".

19. Counsel submitted that as his clients had been strangers to the negotiations leading

up to the conclusion of the contracts between the plaintiff and the first defendant, they

could not present evidence as to the meaning of "food retail" in accordance with the "text

in context" approach to interpretation of contractual terms, unless they were given

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discovery of the documents sought at paragraphs A, B and C of the Notice of Motion.

20. It was submitted that the term "food retail" was a very broad term. It could prevent

the use of the premises for any purpose which involved even the most incidental sale of

food products, such as a cinema, or a children's play area, where tea and coffee and scones

and popcorn might be sold. In these circumstances it was necessary to ascertain what was

in the minds of the parties when they agreed to this very broad term. It was submitted that

if the second and third defendants had been parties to the negotiation of the restrictive

covenant, they would know what had been agreed in the negotiations leading up to the use

of the term "food retail". However, as they were strangers to those negotiations, they

needed discovery of documents to establish the meaning of that term in the contracts. It

was submitted that in these circumstances it was appropriate to grant the second and third

defendants the discovery sought in paragraphs A, B and C.

21. Finally, Mr Rowan B.L. referred to the general principles set out in the recent

Supreme Court decision in Tobin v Minister for Defence, Ireland and the Attorney General

IESC 57. At paragraph 7.2 of his judgment, Clark C.J. pointed out that in many

circumstances a party may have access to much of the evidence which they would wish to

present from within their own knowledge or resources. But there may be circumstances

where a party does not have ready access to all material evidence without recourse to the

various procedural measures which the Rules of Court permit. Discovery is one such

measure. Counsel submitted that in this case the second and third defendants were in the

position whereby they did not have access to the documentation which surrounded the

negotiation of the restrictive covenant in the contract. In such circumstances he submitted

that discovery was both relevant and necessary to enable them to properly put forward their

defence at the trial of the action.

22. He further referred to paragraph 7.3 of the judgment, where the Chief Justice had

stated that for many years discovery had been seen as having a role in either strengthening

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the discovery seeking party’s case or potentially damaging their opponent’s case. He went

on to add that discovery can also play a role in keeping parties honest, because it could not

be ruled out that some parties might succumb to the temptation to present a less than full

picture of events to the Court, were it not for the fact that they know that any attempt to do

so may be significantly impaired if there is a documentary record which shows their

account either to be inaccurate or materially incomplete.

23. Counsel also referred to paragraph 7.13 of the judgment, where it was stated that

while the key criteria governing the granting of discovery of documents remain those of

relevance and necessity, there has in more recent times been a much greater scrutiny of the

issue of necessity. The Court will consider whether making an order for discovery is in fact

necessary, or whether there are other means of establishing the truth. This would certainly

be the case where it can be shown that the cost of making discovery would be significant

and would greatly outweigh the costs of pursuing some alternative procedural mechanism

to establish the same facts. The Chief Justice stated that similar considerations apply when

the likely true relevance of documentation may not become clear until the trial, but where

the immediate disclosure of the documentation concerned would necessarily involve

disclosing highly confidential information. Furthermore, the development of a

proportionality test can itself be seen as a further refinement of the concept of “necessity”.

24. Counsel submitted that in this case, while in response to the documentation sought

at paragraph H, the plaintiff had stated that that request was onerous due to the fact that the

plaintiff had entered into many land purchase transactions throughout the State, other than

that bald assertion, the plaintiff had not provided any evidence to show that it would be

unduly onerous or indeed unjust to require them to make the discovery sought in the

Notice of Motion. He submitted that where it was clearly established that such

documentation was necessary to enable the second and third defendants to properly put

forward their defence at the trial of the action, their request for discovery should be

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granted.

25. In response, Mr. Fitzpatrick S.C. submitted that it was well established that a Court

cannot have regard to parol evidence when interpreting the terms of a written contract. The

subjective belief of either party as to the meaning of a term in the contract, was irrelevant

when interpreting the terms of a written contract. In support of that proposition he referred

to the decision of Hogan J. in Point Village Development Ltd (in receivership) v Dunnes

Stores IECA 159, and in particular to paragraphs 17 and 18, which stated as

follows:

"[17] As I have already noted, the core of Dunnes Stores’ case is that the reference

to "tenants" in clause 11(c) is a reference to ‘high-class’ tenants for the purposes of

a prestigious retail shopping centre such as they say was always envisaged. The

meaning of clause 11(c) of the 2010 agreement will, however, ultimately be

determined by the High Court employing standard interpretive techniques used in

construing commercial contracts of this kind. One of these basic rules is the parol

evidence rule which – subject admittedly to exceptions – precludes the Courts

receiving evidence from the parties as to what their subjective beliefs as to the

meaning of the agreement actually was. This is not some technical rule of evidence,

but rather reflects the preference of the common law for the written word as the

most straightforward way in determining the nature of the contractual bargain

which the parties actually arrived at.

[18] Viewed thus, the latest engagement with actual or potential tenants could only

be relevant to show what the subjective beliefs of PVDL regarding the scope and

meaning of the reference to ‘tenants’ in clause 11(c) actually were. But since such

evidence would – generally speaking, at least – be inadmissible at the trial for this

purpose, the discovery sought in aid of this line of enquiry was also not to be

relevant so far as any issues in these proceedings are concerned."

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26. Mr. Fitzpatrick also referred to the decision of Barnivlle J. in Dunnes Stores v

McCann IEHC 123 and in particular to paragraph 51 where the learned judge

stated: "it is well established that evidence of the subjective intentions of the parties to a

contract or their prior negotiations is not admissible." The judge cited the following dicta

of Fennelly J.: "the exercise is to be conducted objectively. The parties are not permitted to

give evidence of their subjective intentions or of the negotiations leading to the conclusion

of the contract".

27. Counsel for the plaintiff made a further telling point. He stated that the defence

filed by the first defendant was of significance. While it had challenged whether the

activities of the second and third defendants fell within the terms of the restrictive

covenant, they had not asserted that the term "food retail" should have any particular

meaning, other than its ordinary and natural meaning. In particular, they had not pleaded

that the parties had discussed what exact activities would be captured in that phrase. If

there had been any such discussion, which had been recorded in correspondence or in an

email during the negotiation phase, the first defendant, which had all the information

which the second and third defendants complained they did not have, would have pleaded

the matter and would probably have relied expressly on any such communication, yet they

had not done so in their defence. It was submitted that in such circumstances the second

and third defendants’ application was purely a fishing expedition.

28. Mr. Fitzpatrick also relied on the case of HSE v LAYA Healthcare Ltd [2019] IEHC 502

, where the judge dealing with the application held that the opinion of third parties

regarding the interpretation of a particular section in an Act was irrelevant and accordingly

he refused to grant the category of discovery of documents sought.

29. On the basis of the cases cited above, senior counsel submitted that in interpreting

the restrictive covenant the Court cannot look at the subjective intentions or understanding

of the parties, therefore the documentation sought in paragraphs A, B and C was not

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relevant to the second and third defendants’ defence of the action.

30. Also in contention between the parties was paragraph E in the Notice of Motion.

This essentially sought any documentation relating to negotiation of the property price,

documents evidencing the negotiation of the restrictive covenant, the minutes of any

meetings at which consideration was given to the price paid and/or the terms and extent of

the restrictive clause, any documents recording the consideration given to the effect and

consequences of the restrictive covenant and the price paid having regard to other

competing stores in the geographical area and any documents evidencing the accounting

treatment of the value paid on the plaintiff's profit and loss accounts, and/or the plaintiff's

interim and annual accounts.

31. The second and third defendants maintained that this category was relevant to the

claim for damages contained in the plaintiff’s statement of claim. It was pointed out that it

was specifically pleaded by the plaintiff that without the restrictive covenants the plaintiff

would not have entered into the contracts with the first defendant. It was further pleaded

that the existence of the restrictive covenant was a factor in the purchase price agreed

between the plaintiff and the first defendant for sale of the old Lidl store. In these

circumstances it was submitted that it was relevant and necessary for the second and third

defendants to have sight of this category of documents.

32. In response, it was submitted on behalf of the plaintiff that in its Replies dated 12th

July, 2019, the plaintiff had made it abundantly clear that it was not pursuing any claim for

damages as long as it was granted a permanent injunction. Damages would only become

relevant should the Court come to the conclusion that while the plaintiff had established a

breach of the restrictive covenant due to the activities carried out by the second and third

defendants, damages were the more appropriate remedy. In such circumstances, the Court

would adjourn the hearing to enable evidence to be called as to the financial loss suffered

by the plaintiff. At that stage the second and third defendants may be entitled to some

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limited discovery, because the plaintiff would have to provide particulars of its loss and

establish by reference to expert evidence the extent of that loss; however any such

entitlement to discovery did not arise on the pleadings as they currently stood.

33. In addition it was submitted that the terms of paragraph E were too broad. The

second and third defendants were not entitled to the documents sought therein as it was

irrelevant as to what discussions or views the plaintiff and its servants or agents had had as

to what was a prudent price to pay for the insertion of the restrictive covenant into the

contracts. The only relevant matter which might arise, was the loss which the plaintiff had

suffered in the past and would suffer in the future by a breach of the covenant by the

defendants.

34. Turning to categories F, G and H, these categories arise out of the counterclaim on

behalf of the second and third defendants, that even if the restrictive covenant did cover the

activities carried out by them, it was void having regard to the provisions of s.4 of the

Competition Act 2002.

35. Counsel for the second and third defendant stated that category F was relevant to

show that the plaintiff was engaging in anti-competitive practices in other rural locations.

The plaintiff was a multinational supermarket chain. It would be relevant to the

counterclaim being pursued by the second and third defendants to establish that the

plaintiff had a practice of effectively attempting to restrict competition in other similar

rural areas. In this regard it was relevant to note that the new Lidl store was a large

structure of over 13,000 square feet, with no other similar retail unit within a 15/20

minutes’ drive.

36. Counsel submitted that the documentation sought at paragraph G, would show that

the plaintiff had engaged in anti-competitive practices. The documents were relevant and

necessary to show the market share of the plaintiff in the retail and grocery market. They

would identify the extent to which the plaintiff was dominant in the market. Such

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information was also relevant and necessary for the purpose of preparing the report of the

competition expert.

37. It was submitted that the documentation sought in paragraph H was necessary and

relevant because it had been pleaded by the plaintiff that had it not been for the restrictive

covenants, they would not have entered into the contract with the first defendant. They

further pleaded that they would not have paid the consideration which they had paid, if the

covenant had not been inserted in the contract. It was submitted that in such circumstances

the assessment and documents relating to the consideration given for the restrictive

covenant were relevant and necessary for the determination of the proceedings.

38. In response to this, Mr. Fitzpatrick submitted that having regard to the decision in

Sibra Building Company Ltd & Othrs v Ladgrove Stores, a decision of the Supreme Court

on 8th May, 1998, where it had been held by Barron J that the Competition Act had no

relevance to restrictive covenants. He had stated: "I have no doubt that the statute was not

intended to deal with restrictive covenants. Its purpose was to deal with unfair trading."

39. Mr. Fitzpatrick submitted that the documentation referred to at paragraph F was not

relevant because even if the agreement between the plaintiff and the first defendant was

capable of being contrary to the provisions of the Competition Act 2002, the fact that the

plaintiff may have entered into similar arrangements in other parts of the State was

irrelevant to the question of whether this agreement could be held to be invalid having

regard to the provisions of the 2002 Act. The essential question would be what was the

market in terms of the activity in question and the geographical area of that market.

Whether that comprised the area around Nenagh, or County Tipperary, or even north

Munster, that was a question for expert evidence. What agreements the plaintiff may have

made with other landowners in other areas, such as in Letterkenny or Tralee, was simply

not relevant.

40. In relation to categories G and H, counsel submitted that the documents sought

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therein were not relevant to the competition issue raised by the second and third

defendants. The subjective intentions or understanding on the part of the plaintiff, or any of

its servants or agents, as to whether they held a dominant position in any particular market,

was irrelevant. The only relevant questions were whether they had a dominant position,

which would depend on expert evidence based on their factual position in the market, or

whether they had engaged in any anti-competitive practices prohibited by section 4 of the

2002 Act. These were entirely objective questions. They did not depend on the subjective

opinions of any servant or agent of the plaintiff. Accordingly, the documentation sought

was not relevant.

Conclusions

41. Stripped to the essentials, this case is quite simple. The plaintiff maintains that it

sold the old Lidl store to the first defendant subject to a restrictive covenant. The first

defendant accepts that it purchased the property subject to that covenant. The dispute arises

as to the interpretation of the words "food retail" in the covenant. The first, second and

third defendants maintain that the activity carried on by the second and third defendants at

the old Lidl store in May 2019, which involved the sale of chocolate bars, mineral water

and dried food, did not constitute "food retail" within the meaning of the covenant.

42. In categories A, B and C, the second and third defendants are seeking a large range

of documentation which they maintain would establish what was the intention of the

parties when inserting the term "food retail" into the contracts.

43. While there is considerable case law which establishes that where the terms of a

contract have been reduced to writing, one cannot admit evidence of either a parol nature,

or of a documentary nature to establish what was the subjective intention of one of the

parties in using that term, or as to their understanding of the term used in the contract. The

second and third defendants have countered that argument by arguing that modern case law

on the interpretation of contracts has explained that while the ordinary and natural meaning

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of the written terms in the contract must be given great weight, it is permissible to interpret

the "text in context". It is submitted that this enables the Court to look not at the subjective

intention or understanding of any one of the parties, but may have regard to any agreement

which may have been reached between them during the negotiations as to the precise

parameters of a term which is included in the contract.

44. While I accept Mr. Fitzpatrick's submission that evidence as to the subjective

intention or understanding of a party during negotiations is not admissible, I am of opinion

that Mr. Rowan is correct in his submission that if there was a document which showed

what the parties agreed was meant by a particular term in a contract, that document would

be admissible as evidence of the true interpretation of the term in the contract.

45. It seems to me that it is unlikely that such a document exists, because as pointed out

by Mr. Fitzpatrick in argument, if there was a document which showed that the term "food

retail" did not encompass the activity carried on by the second and third defendants, the

first defendant would probably have pleaded such facts in its defence. Nevertheless, I am

of opinion that the second and third defendants are entitled to some discovery under this

heading. However, the range of documents sought in paragraphs A, B and C are far too

broad and encompass categories of documents that go beyond what is permissible.

46. I am satisfied that the second and third defendants are entitled to have sight of any

document or series of documents that would establish what was the agreement or

understanding reached between the parties as to the scope of the restrictive covenant in

relation to the selling of food products at the old Lidl store. Accordingly, I direct that the

plaintiff is to make discovery of the following: any document, note or memorandum, either

in hard copy or in electronic format, which records any agreement between the plaintiff, its

servants or agents, and the first defendant, its servants or agents, as to the meaning or

extent of the term "food retail".

47. In relation to paragraph E in the Notice of Motion, I am not satisfied that this

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category of documents is relevant to the issues that arise having regard to the state of the

pleadings and in particular, to the fact that the plaintiff has abandoned the claim for

damages, save in the event that the Court should decide that there was a breach of

covenant, but that an injunction was not the appropriate remedy and proposed to award

damages instead.

48. Even in these circumstances, the documents sought in paragraph E are not relevant

to the determination of that issue. What internal discussions or decisions may have been

made by the plaintiff in relation to the price it would pay for the restrictive covenant, is not

relevant to the question of any loss it may have suffered, or may suffer in the future, due to

a breach of the restrictive covenant by the defendants. Accordingly, I refuse to order

discovery under this heading.

49. In relation to paragraph F, I accept the submission made by Mr. Fitzpatrick that this

category of documents is not relevant to any issue that may arise at the trial of the action.

What practices the plaintiff may have engaged in in other markets in other parts of the

country are not relevant to the question of whether the agreeing of the restrictive covenant

with the first defendant was a practice or agreement contrary to s.4 of the 2002 Act. I

refuse the discovery sought under this heading.

50. In relation to the discovery sought at paragraphs G and H in the Notice of Motion, I

accept Mr. Fitzpatrick's submission that the subjective views of the plaintiff, through its

board of directors or other servants or agents, cannot affect the legality of the plaintiff's

action from a competition law point of view. The agreement was either in breach of s.4 of

the 2002 Act having regard to the market in question, the plaintiff's share of that market

and the geographical extent of the market, or it was not. The existence of any of the

documents sought in these paragraphs are not relevant or necessary to establish this part of

the counterclaim raised on behalf of the second and third defendants. Accordingly, I refuse

to direct discovery under these headings.

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51. For the reasons set out above I have directed that the plaintiff make discovery in the

terms outlined above, and also in the terms of paragraph D of the Notice of Motion, which

category was agreed between the parties.