Bula Ltd v Tara Mines (No. 5)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [S.C. No. 207 of 1993]
• Court: Supreme Court

High Court

Supreme Court

[S.C. No. 207 of 1993]

Bula Ltd. v. Tara Mines (No. 5)

Bula Ltd. (in receivership) and Others

Plaintiffs

and

Tara Mines and Others, Defendants (No. 5)

Cases mentioned in this report:—

Mitchell v. Darley Main Colliery Co. (1884) Cab. & Ell. 214.

Rush & Tompkins Ltd. v. G.L.C. [1989] A.C. 1280; [1988] 2 W.L.R. 533; [1988] 1 All E.R. 549, C.A.; [1988] 3 W.L.R. 939; [1988] 3 All E.R. 737.

Smurfit Paribas Bank Ltd. v. A.A.B. Export Finance Ltd. [1990] 1 I.R. 469; [1990] I.L.R.M. 588.

Practice - Documents - Discovery - Affidavit of discovery made by defendant - Documents coming into existence subsequently - Whether defendant under continuing obligation to make discovery of such documents - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 31, r. 20 (3).

Practice - Documents - Discovery - Privilege - Documents containing proposals for compromise of action as between defendants - Whether privileged from discovery - Whether privileged from production.

Notice of motion.

The relevant facts are summarised in the headnote and fully set out in the judgments, post.

By a plenary summons issued on the 17th November, 1986, the plaintiffs sought various reliefs against the defendants, including, as against the first defendant, damages for trespass.

Following the filing of an affidavit of discovery by the defendants in December, 1989, the plaintiffs applied for an order for further and better discovery by a motion served upon the defendants on the 29th April, 1992.

The motion was heard by the High Court (Murphy J.) on the 26th May, 1993.

By notice of appeal dated the 30th June, 1993, the first, second, fifth and sixth plaintiffs appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard by the Supreme Court (Finlay C.J., Egan and Denham JJ.) on the 7th October, 1993.

Order 31, r. 20 (3) of the Rules of the Superior Courts, 1986, provides:—

"The court may, on the application of any party to a cause or matter at any time, and whether an affidavit or list of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents . . . is or are, or has or have at any time been in his possession or power . . ."

The plaintiffs brought proceedings in 1986 against the defendants for, inter alia,conspiracy and trespass of a continuing nature. In December, 1989, the first fourteen defendants filed an affidavit of discovery, and in April, 1992, the plaintiffs brought a motion for further and better discovery. The application related to documents which had not been in existence at the time of the swearing of the affidavit of discovery, including documents which contained without prejudice proposals for the settlement of the action between a number of the defendants.

At the hearing of the motion in the High Court, it was submitted on behalf of the defendants, inter alia, that documents prepared by parties to litigation which contained settlement proposals were privileged, and exempt from both production and discovery.

On behalf of the plaintiffs it was submitted, inter alia first, that even if the documents were privileged, their existence should have been disclosed by the defendants in their affidavit of discovery. Secondly, it was submitted that there was a continuing obligation upon persons having sworn an affidavit of discovery to swear further affidavits setting out relevant material coming into existence after the date upon which the original affidavit was sworn.

Held by Murphy J., in refusing the motion and in directing that the defendants should not be required to make discovery of any documents which came into existence after the date on which the affidavit of discovery was sworn, 1, that a party against whom an order for discovery was made discharged his obligation to the court by swearing an affidavit of discovery which was correct as of the date upon which he made it. There was no continuing obligation on that party to make further discovery of such documents as might subsequently come into existence.

2. That without prejudice communications prepared between parties to litigation for the purposes of negotiating a compromise of the action were privileged from production.

Rush & Tompkins Ltd. v. G.L.C. [1989] A.C. 1280 explained; dictum of Lord Griffiths in Rush & Tompkins Ltd. v. G.L.C. [1989] A.C. 1280 approved.

3. That there was no basis in law for the proposition that such documents were not required to be included in that part of the affidavit of discovery which set out documents in respect of which privilege was claimed.

The plaintiffs appealed to the Supreme Court. Before the Supreme Court it was submitted on their behalf, inter alia, that even if there was no general obligation to produce documents created after the date of the affidavit of discovery, having regard to the provisions of O. 31, r. 20 (3) of the Rules of the Superior Courts, 1986, the court should direct the discovery and production of such documents where, as in the instant case, the claim made against the defendant was a claim made in respect of a wrong of a continuing nature, and the plaintiff had established the existence of the documents.

Held by the Supreme Court (Finlay C.J., Egan and Denham JJ.), in dismissing the appeal, 1, that if the Court did not have jurisdiction to order discovery of documents created subsequent to the swearing of an affidavit of discovery, such jurisdiction could not be conferred upon it by a rule contained in the Rules of the Superior Courts, 1986.

2. That the trial judge was correct in concluding that there was no authority for the proposition that an order for discovery imposed a general obligation upon the party against whom it was directed to make discovery of documents subsequently coming into existence.

Per curiam: That such an obligation would lead to patent absurdity and would be demonstrably invidious to the due and proper administration of justice.

3. That having regard to the importance of the discovery of documents, there mightex hypothesi be cases in which a court would, in the interests of justice, direct the discovery and production of a specified document which had come into existence after the filing of an affidavit of discovery.

4. That this jurisdiction must be very sparingly used and only in accordance with certain conditions, including the following, which were relevant in the instant case:—

• (a) A party seeking such discovery must specify the documents discovery of which was sought, and not merely state the possibility of the existence of a type of document.

• (b) In any instance where the documents so specified arose from the proceedings and were, accordingly, prima facie privileged, the court should not make the order sought unless satisfied on proof that some special reason required...