Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Budd
• Judgment Date: 15 August 2006
• Neutral Citation: [2006] IEHC 215
• Court: High Court
• Docket Number: [2003 No. 15970
• Date: 15 August 2006

ATLANTIC SHELLFISH LTD & HUGHES-JONES v CORK CO COUNCIL & ORS

BETWEEN

ATLANTIC SHELLFISH LIMITED AND DAVID HUGH-JONES

PLAINTIFFS

AND

THE COUNTY COUNCIL OF THE COUNTY OF CORK, THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2006] IEHC 215

[2001/15389P]

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Documents - Necessity - Relevance - Reasons - Whether each category necessary and relevant - Whether reasons given adequate - Brook Thomas Ltd v Impac Ltd [1999] 1 ILRM 171 and Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 followed - Rules of the Superior Court 1986 (SI 15/1986), O 31, r 12 - Order of Master varied (2001/15389P - Budd J - 15/8/2006) [2007] IEHC 215Atlantic Shellfish Ltd v Cork County Council

: The plaintiffs sought to appeal a decision of the Master of the High Court against the first named defendant and State defendants refusing the plaintiffs' application for discovery as to certain categories of documents. The plaintiffs sued the defendant in respect of pollution of their oyster beds by sewage discharge alleging inter alia that the Council had acted in breach of the conditions of the licence granted by the Minister to the Council and in breach of the terms of a previous settlement of proceedings as between the parties. Five categories of documents were not agreed as between the parties.

Held by Budd J. as against the first named defendant, all documents prior to the consent were discoverable. Documents as to the category relating to the choice of the location of the sewage outfall point would be allowed. The category relating to the compliance with the terms of the consent would also be allowed. The category relating to the contamination from sewage dating from 1988 would be allowed as necessary and relevant. The category of discovery seeking materials relating to the monitoring of the discharge would be allowed. The category relating to the discovery of documents relating to storm water discharge would be allowed also. In respect of the State defendants, the first category of discovery relating to a foreshore licence would be allowed, as would the second relating to sewage outfall, being both relevant and necessary for the plaintiff to prosecute its claim. The third category relating to documentation as to water quality would be allowed. The fourth category as to the impact on the fishery of the water treatment plant would be allowed given that it presented no difficulties. The plaintiffs were clearly entitled to discovery as to certification as they also were in respect of the category relating to testing and monitoring. The categories relating to information as to illness suffered would be allowed. The documents as to the closure Direction would be allowed. Discovery would be allowed in respect of the Ministerial Prohibition Order.

Reporter: E.F

RSC O.31 r12

RULES OF THE SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/1999

FREEDOM OF INFORMATION ACT 1997

HANNON v COMMISSIONERS OF PUBLIC WORKS UNREP MCCRACKEN 4.4.2001 2001/11/3168 2001 IEHC 59

MCCARTHY v O'FLYNN 1979 IR 127

ALLIED IRISH BANKS PLC v ERNST & WHINNEY 1993 1 IR 375

RSC O.31 r12(1)

RSC O.31 r12(3)

RSC O.31 r12(4)

DERBY & CO LTD & ORS v WELDON & ORS (NO 9) 1991 1 WLR 652

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005

BROOKS THOMAS LTD v IMPPAC LTD 1999 1 ILRM 171

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882 11 QBD 55

AQUATECHNOLOGIE LTD v NATIONAL STANDARDS AUTHORITY OF IRELAND, MIN FOR THE ENVIRONMENT, IRELAND & AG UNREP SUPREME 10.7.2000 2000 IESC 64

FORESHORE ACT 1933

CONSTITUTION ART 40.3

CONSTITUTION ART 43

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 PART IX

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20

COOPER FLYNN v RADIO TELIFIS EIREANN, BIRD & HOWARD 2000 3 IR 344

TAYLOR v ANDERTON 1995 1 WLR 447

EUROPEAN COMMUNITIES (LIVE BIVALVE MOLLUSCS) (HEALTH CONDITIONS FOR PRODUCTION & PLACING ON THE MARKET) REGS 1996 SI 147/1996

EUROPEAN COMMUNITIES (LIVE BIVALVE MOLLUSCS) (HEALTH CONDITIONS FOR PRODUCTION & PLACING ON THE MARKET) (AMDT) REGS 2000 SI 390/2000

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

FOSKETT LAW & PRACTICE OF COMPROMISE 6ED 2005

STERLING-WINTHROP v FARBENFABRIKEN BAYER AG 167 IR 97

VLM LTD v XEROX (IRELAND) LTD UNREP CLARKE 25.2.2005 2005/57/12052 2005 IEHC 46

O COMPANY v M COMPANY 1996 2 LLOYD'S REP 347

HANRAHAN v MERCK SHARPE & DOHME LTD 1988 ILRM 629

GALVIN v TWOMEY 1994 2 ILRM 315

CARLOW KILKENNY RADIO LTD & ORS v BROADCASTING COMMISSION OF IRELAND 2003 3 IR 528

STATUTE OF FRAUDS 1695

LAW REFORM COMMISSION REPORT ON AGGRAVATED, EXEMPLARY & RESTITUTIONARY DAMAGES 2000 LRC 60-2000

TAYLOR v SMYTH & ORS 1991 1 IR 142

SIMBA-TOLA v TRUSTEES OF ELIZABETH FRY HOSTEL & ANOR 2001 ECWA CIV 1371

SWORDS v WESTERN PROTEINS LTD 2001 1 IR 324

BURKE v DPP 2001 1 IR 760

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHED 2 S2(c)

FREEDOM OF INFORMATION (AMDT) ACT 2003

MINISTERS & SECRETARIES ACT 1924

BYRNE v IRELAND & AG 1972 IR 241

IRISH NATIONWIDE BUILDING SOCIETY v CHARLTON UNREP SUPREME 5.3.1997 1997 9 3049

1 Mr. Justice Budd delivered on the 15th day of August, 2006.

2 This appeal, from an order of the Master of the High Court made on 15 ^th December, 2004, came before the High Court eventually by way of an appeal on foot of a motion dated 22 ^nd December, 2004, against the First Named Defendant and on foot of a second motion dated 1 ^st February, 2005, seeking a variation of the Master's orders in respect of discovery made on 15th December, 2004, and seeking two very similarly worded orders on the following lines:-

3 As against the First Named Defendant:-

4 a A. An order reversing the Master's refusal of the Plaintiffs' application for discovery in respect of certain categories of documents;

5 b B. An order directing the First Named Defendant to make discovery on oath of the documents and categories of documents referred to in the Plaintiffs', notice of motion issued on 5 ^th April, 2004;

6 c C. Such further or other order as to the court shall seem fit.

7 d D. An order providing for the costs of and incidental to the application.

8 e E. An order extending the time in which to bring this application.

9 As against the Second, Third and Fourth Named Defendants:-

10 A similarly phrased motion was brought by way of a similar appeal from the order of the Master made on 15 ^th December, 2004;

11 a A. Seeking an order reversing that part of the order of the Master made on 15 ^th 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;

12 b 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 5 ^th 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 5 ^th April, 2004, and on 23 ^rd July, 2004, and in the case of the First Named Defendant, the affidavit sworn on 16 ^th November, 2004, with the exhibits to those affidavits.

13 In respect of the second application the wording is very similar except that the application is against the Second, Third and Fourth Named Defendants rather than the First Named Defendant and the order sought is directing the Second, Third and Fourth Named Defendants to make discovery upon oath, whereas in the first application the order sought is for Cork County Council to make discovery upon oath.

14 These two appeals in respect of discovery orders made by the Master on 15 ^th December, 2004, are both part of what appears like a stream of appeals which have come from the Master's Court to the High Court on appeal in respect of the application of the principles enunciated in a number of helpful and clear Supreme Court decisions as to the practical application of O.31, r. 12 of the Rules of the Superior Courts, 1986 and as to the law and principles pertaining to the development of the rules and principles governing discovery which have evolved from general discovery of relevant documents to a more refined and selective type of discovery.

15 Before I outline the contents of the two notices of motion for discovery dated 5 ^th April 2004, the first as against the First Named Defendant and the second notice of motion for discovery as against the Second, Third and Fourth Named Defendants, both for hearing on 11 ^th May 2004, it would be appropriate to give a summary of the principles and the law as they have now evolved with regard to the making of orders for discovery. Then it will be necessary to set out briefly the long and unhappy saga which has taken place between the Plaintiffs and these Defendants. This sorry situation caused previous proceedings between the same parties leading to the Plaintiffs suing the Defendants in respect of the pollution of their oyster beds by the location and construction of sewage pumping stations with sewage outfalls and discharge therefrom under the control of the First Named Defendant and under the general supervision and licensing by the second Defendant. In order to set out the story behind the present proceedings it will be necessary to go through the history of the setting up of the Plaintiffs' mollusc fishery in or about 1970 and...