Atl Auto Trolley Ltd & J & J (City) Ltd v John Mowlem Construction Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Mella Carroll
• Judgment Date: 10 July 2003
• Neutral Citation: [2003] IEHC 57
• Court: High Court
• Date: 10 July 2003

[2003] IEHC 57

THE HIGH COURT

16606P/2001

ATL AUTO TROLLEY LTD & J & J (CITY) LTD v. JOHN MOWLEM CONSTRUCTION LTD

BETWEEN

A.T.L. AUTO TROLLEY LIMITED AND J. & J. (CITY) LIMITED

PLAINTIFFS

AND

JOHN MOWLEM CONSTRUCTION LIMITED

DEFENDANT

Abstract:

Practice and procedure - Discovery - Principles to be applied - Relevance - Necessity - Whether documents should be discovered.

the plaintiffs claimed damages for breach of contract and negligence in relation to a contract to supply machinery to the defendant for an excavation project. The defendants denied that they were liable to the extent claimed by the plaintiffs. The plaintiffs brought a motion for further and better discovery of documents pertaining to losses allegedly suffered by them in relation thereto, alleging that previous discovery by the defendants was inadequate, not covering a period between the 15th October, 2000 to the 1st February, 2001. That application was refused by the Master. The plaintiffs appealed that order to the High Court.

Held by Carroll J in allowing the appeal to the extent of granting an order for further discovery against the defendant for the period between the 15th October, 2000 to the 1st February, 2001, in relation to those categories more particularly set out in the judgment of the court, that those categories which were relevant and went to prove the issues to be decided in the proceedings should be discovered.

1 Ms. Justice Mella Carroll delivered the 10th day of July 2003 .

2 This is an application for an Order for Discovery of documents in the Defendant's power possessment or procurement as set out in the Plaintiffs' Solicitor's letter of 12 ^th January, 2002.

3 The parties had agreed to make voluntary general discovery in this matter by consent in settlement of related proceedings between John Mowlem Construction Limited Plaintiff and Auto Trolley Limited Defendant 2001/ 14214P. An Order was made by Lavan J. on 5 ^th November, 2001 to that effect, John Cronin to swear the affidavit on behalf of Auto Trolley Limited and William O'Regan on behalf of John Molem Construction Limited.

4 William O'Regan swore an affidavit of discovery in this matter on behalf of the Defendant on the 17 ^th December, 2001 and John Cronin swore an Affidavit of Discovery on behalf of the Plaintiffs on 12 ^th January, 2002.

5 The Plaintiffs sought a further Affidavit of Discovery of documents as set out in the Plaintiffs' solicitor's letter of 12 ^thJanuary, 2002. The matter came before the Master who dismissed the Plaintiffs' application on the 3 ^rd of May, 2002.

6 An appeal to the High Court came on for hearing the 15 ^thJuly, 2002 before Johnson J. when it appeared that the Plaintiffs had not inspected the documents listed in the Defendant's Affidavit of Discovery. The matter was adjourned to allow inspection to take place on terms that the Plaintiffs would pay the costs of the discovery Motion. That inspection has since taken place.

7 The action arises from a contract between the first Plaintiff and the Defendant. The Defendant was the main contractor to the Department of the Marine in respect of Dingle Harbour, County Kerry. In or about the beginning of 2000, the first Plaintiff supplied machinery to the Defendant which was used in excavation works. The Plaintiffs plead an oral contract made between 10 ^th March and 4 ^thApril, 2000 to carry out dredging works at the harbour and a variation of that contract about 5 ^th May 2000. The first Plaintiff commenced work on 6 ^th April, 2000 and continued until 15 ^th/16 ^th October, 2000. The express or implied terms of the agreements are set out in the Statement of Claim, including provisions for payment, amount of seabed to be removed, and certain support services to be supplied by the Defendant. The first Plaintiff claims to have dredged the agreed amount from the seabed for which the Defendant refused to pay. The Plaintiffs claim £162,480 plus an additional sum for extra works agreed. They also claim damages for breach of contract, negligence and breach of duty and alternatively a claim on quantum meruit. The Defendant pleads a general traverse of the Statement of Claim and denies any oral agreement. It pleads a different contract subject to the Defendant's standard terms and conditions and a written contract dated 18 ^th May, 2000 with a variation dated 3 ^rd July, 2000. The Defendant claims it made payment of £150,000 plus V.A.T. and pleads that the first Plaintiff was in such breach of contract as to repudiate its contractual obligations and that the first Plaintiff without the agreement of the Defendant removed all its plant and equipment on the 15 ^th/16 ^thOctober, 2000 while works remained incomplete. The Defendant went about completing the works which were not achieved until 1 ^stFebruary, 2001 and pleads it suffered loss, damage and expenses amounting to £393,920.92 plus V.A.T. In its counterclaim it claims this amount.

8 In his letter of the 12 ^th of January, 2002 the Plaintiffs' Solicitor refers to 32 categories of documents which are not numbered. I will deal with them under letters of the alphabet as used in the Affidavit of Daryl Broderick, Solicitor on behalf of the Defendant sworn1 ^st May, 2002.

9 The categories are as follows

10 (a) All documentation relating to the contract between the Defendant and the Department of the Marine.

11 (b) Priced bill of quantities and final account.

12 (c) Site agent diary and message book.

13 (d) Engineer's site note pad and diary.

14 (e) Site visitor book.

15 (f) All M. Kalnin's hand written faxes and weekly reports.

16 (g) All personnel/operatives' names and details.

17 (h) All invoices from pontoon repair firms.

18 (i) All correspondence between site office/ harbour master/client's site office/Ken Fitzgerald.

19 (j) All concrete deliveries for pier foundations as built.

20 (k) All pier foundations, drawings and levels.

21 (l) All extra works for bill of quantities and site variations.

22 (m) All concrete cube tests from site and concrete supplier.

23 (n) Stock pile survey.

24 (o) Contract method statement.

25 (p) Contract programme and amendments.

26 (q) Murt Coleman's diary.

27 (r) Telephone log for Irishenco office in Kildare for May/June 2000.

28 (s) All personnel details and firms involved in finishing dredging works.

29 (t) All letters and bills from firms involved in removing silt from site prior to A.T.L. coming on site.

30 (u) Barge movements log.

31 (v) Irishenco monthly applications for payment in relation to contract.

32 (w) Details of divers involved on site.

33 (x) All site requisition orders.

34 (y) Repair bill for tug boat.

35 (z) Site photographs.

36 a (aa) Final hydrographic surveys.

37 b (bb) All correspondence between site office and head office.

38 c (cc) Clients snagging list.

39 d (dd) All concrete repairs and associated correspondence.

40 e (ee) Clients correspondence in relation to datum.

41 f (ff) Level discrepancies.

42 g (gg) Stone deliveries to fill in centre area of pier.

43 h (hh) Top soil deliveries to break water.

44 i (ii) Handwritten notes by Murt Coleman and Mike Kalnins of meetings with John Cronin.

45 The Plaintiffs submit there is no discovery relating to any category covering the period the 15 ^th of October, 2000 to the 1 ^st of February, 2001 which is the period in which the Defendant claims to have incurred damages amounting £392,920. The Plaintiffs claim further discovery is necessary for this period.

46 The Defendant does not contest that discovery did not continue beyond 15 ^th October, 2000.

47 The Plaintiffs agree that discovery of documentation between the Defendant and the Department of the Marine could be limited to dredging works and the amount of rock/silt to be removed. They agree that category (a) encompasses (b), (l), (v), (cc), (ee) and needs to be discovered to 1 ^st February, 2001.

48 The Plaintiffs also agrees that the following categories have already been discovered but not to the 1 ^st February, 2001. These are (c), (d) (e), (f), (i). (k), (n), (o), (t), (u), (aa), (ee), (ff) and (ii).

49 Regarding (aa) (the final surveys) the Plaintiffs' claim discovery beyond February 2001 if the relevant documents do exist.

50 The Plaintiffs agree that (g) include (w).

51 (j), (m) and (dd) all concern concrete and (gg) concerns stone deliveries.

52 (p) Concerns an issue in the proceedings.

53 (q) The reason given (that Mull Coleman was not site on a day to day basis, therefore his diary could not have been contemporary in his record) is not sustainable.

54 (r) The Plaintiffs agree this is peripheral but claims it is still necessary.

55 (s) The Plaintiffs claim this concerns an issue in the proceedings.

56 (t) There is no contest on (t).

57 (x) Site requisition: the Plaintiffs claim the Defendant failed to provide personnel, tugboats or pontoons as agreed.

58 (y) This is similar to the repair bill for pontoons which is relevant to the supply of tug boats.

59 (z) The Plaintiffs only seeks relevant photographs if any.

60 (bb) There was an agreement for general discovery but this is now limited to the period April 2000 to February, 2001.

61 (hh) The Plaintiffs agree that this can be disregarded.

62 The Defendant submits

63 (a) That the Defendant's obligations under contact with the Department of the Marine are of no relevance to any contractual issue between the Plaintiffs and the Defendant; this refers also to (b), (l),...