Brooks Thomas Ltd v Impac Ltd

JurisdictionIreland
JudgeLYNCH J.
Judgment Date01 January 1999
Neutral Citation[1998] IESC 18
Docket Number100/96
CourtSupreme Court
Date01 January 1999
BROOK THOMAS LTD v. IMPAC LTD
BETWEEN/
BROOKS THOMAS LIMITED
Plaintiff/Respondent

and

IMPAC LIMITED
Defendant/Appellant

[1998] IESC 18

Denham J.

Lynch J.

Barron J.

100/96

THE SUPREME COURT

Synopsis

Practice and Procedure

Discovery; procedure; delay; action for breach of contract, negligence and misrepresentation; motion for discovery; whether documents sought related to any issues in dispute; whether the documents in question would directly or indirectly advance the respondents" case; whether documents in question would damage the appellants" case; O. 31, r.12, Rules of the Superior Courts

Held: Discovery not necessary; motion for discovery dismissed (Supreme Court: Denham J., Lynch J., Barron J. 29/07/1998) - [1999] 1 ILRM 171

Brooks Thomas Ltd. v. IMPACT Ltd.

Discovery may be obtained of any document containing information which may (not which must) directly or indirectly enable one party to advance his own case, damage his adversary's case or fairly lead to a train of enquiry which may have either consequence. The issue in this case was whether the appellants did what was required by their contract with the respondents. If they did not, it would be no defence to say they followed what was laid down in professional handbooks. The respondents must establish that the appellants were in breach of their contractual relationship. The Court decided that the application for discovery in this case was no more than a fishing exercise and was unnecessary. Further discovery was not necessary in this case for disposing fairly of the action or saving costs, so the High Court order was reversed and the motion dismissed.

The Court said, obiter, that, in view of the modern trend to seek discovery in almost every case, the Superior Courts Rules Committee might consider changing the rules to require an affidavit in all cases before discovery is ordered.

Citations:

RSC O.31 r12(3)

HOGAN V BAYER PRODUCTS LTD 1950 84 ILTR 145

COMPAGNIE FINANCIERE DU PACIFIQUE V PERUVIAN GUANO CO 1882 11 QBD 55

HALSBURYS LAWS OF ENGLAND 4ED V13 38

1

JUDGMENT delivered on the 29th day of July1998by LYNCH J. [NEM DISS]

2

This is an appeal by the defendant/appellant from an order of the High Court (Geoghegan J.) made on the 6th March 1995 and asupplemental order made on the 10th July 1995 directing the appellants to make further discovery on oath of documentation referred to in a letter dated the 29th September 1993 from the plaintiff/respondent's solicitors to the appellant's solicitors subject to stringent conditions designed to preserve and protect the appellant's right to confidentiality and trade secrecy in the said documents.

THE FACTUAL BACKGROUND
3

The respondents carry on business as timber merchants and builders providers. In the mid-1980s the respondent's business was losing substantial moneys and the respondents were becoming financially straightened. The appellants are international business consultants and in April 1987 the respondents engaged the appellants to advise them how to improve their work practices and efficiency so as to reverse thefinancialproblems from which they suffered. The respondents say that the appellants represented and warranted that they had the skill, experience and know-how to achieve the foregoing improvements in therespondents" work practices and financial standing and on foot of those representations and warranties and following a month's preliminary investigation and analysis by the appellants of the respondents"said business the respondents engaged the appellants to carry out the foregoing work, the period of engagement to be thirty-four weeks commencing on the 20th April 1987.

4

The respondents allege that the appellants did not have the skill, experience or know-how to achieve the foregoing improvements and that they thus failed to achieve promised interim improvements. Accordingly, the respondents dispensed with the appellants" services on the16thSeptember 1987 being a period of only twenty-one weeks after the commencement of the retainer.

THE PROCEEDINGS
5

Having regard to the views which I have formed in this case it is necessary that I set out in some detail the various steps in the action to date.

6

The subject matter of the action is a contract and the performance of it which dates back some eleven years ago. The plenary summons alleging breach of contract, negligence and misrepresentation was issued on the 4th December 1987 that is to say over ten and a half years ago. The statement of claim was delivered on the 7th April 1988 over ten years ago. It is a detailed statement of claim running to six typescript pages. Particulars of alleged breach of contract, breach of warranty and misrepresentation run to two closely typed full pages without any breakorgap for paragraphs. Detailed particulars of the alleged negligence and the alleged loss and damage are also provided, in the case of loss and damage in precise sums. The appellants delivered their defence and counterclaim on the 2nd March 1989. It runs to five typescript pages with a total of seventeen paragraphs. The respondents delivered their reply and defence to counterclaim on the 12th May 1989 running to four typescript pages and nineteen paragraphs.

7

In addition to the foregoing formal pleadings the appellants served a notice for particulars in February 1989 running to five pages which was replied to by the respondents on the 8th June 1989 running to nine pages. The respondents served a two and a half page notice for particulars dated the 12th May 1989 which was replied to by the appellants on the 6th October 1989 running to eight pages.

8

Up to this point the litigation had moved at quite a reasonable pace. The pleadings were closed within two years of the issue of the plenary summons. The parties had given and obtained full and detailed particulars of their respective stances and one might reasonably expect that notice of trial would be served by the respondents before the end of 1989 followed by setting down for trial and that thereafter the trial would have taken place before the end of 1990, that is to say within a period of three years from the issuing of the plenary summons. Such an expectation in modern litigation, however, appears to be quite unreal. Although neither party appears to have had any difficulty in formulating detailed pleadings or in giving answers to the detailed queries put in the notices for particulars, what happened next was not the service of notice of trial by the respondents but the service by them of a motion for discovery on the 30th November 1989 to which the appellants consented before theMaster of the High Court on the 12th December 1989 on terms of a cross order being made. So, instead of a trial before the end of 1990 it seems unlikely that a trial will now take place before some time in 1999.

9

The respondents swore their affidavit of discovery on the 9th February 1990 and the appellants swore theirs on the 12th February 1990....

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