Burke v Boston Scientific
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] IECA 230 |
| Date | 28 July 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 679/2014 [Article 64 Transfer] |
[2016] IECA 230
THE COURT OF APPEAL
Irvine J.
Record No. 679/2014
[Article 64 Transfer]
McKechnie J.
Irvine J.
Hogan J.
Discovery of documents – Inspection – Harassment – Appellant seeking discovery of documents – Whether respondent complied with its discovery obligations
Facts: The plaintiff/appellant, Ms Burke, was a payroll specialist working for the defendant/respondent, Boston Scientific, at its premises in Ballybrit, Galway. Ms Burke maintained that she was subjected to a sustained period of bullying, harassment and intimidation in particular during 2007 as a result of which she has sustained personal injuries for which she claimed damages. She commenced proceedings in February 2010. A full defence was delivered on 20th July 2010. This included a plea of contributory negligence on the part of Ms Burke. The plaintiff brought an application seeking discovery of documents which she considered necessary and relevant to the proof of her claim and by order of 5th March 2012 O?Neill J ordered discovery of nine categories of documents including certain e-mails, minutes of meetings and telephone logs. Discovery was eventually made on the defendant?s behalf by Ms Jakes on 16th July 2012. In the first schedule of her affidavit Ms Jakes identified the documents which were available to be discovered. Then, at para. 3 she referred to the second schedule to her affidavit wherein six categories of documents were identified. These were numbered 1 to 6 and corresponded with categories (a), (c), (d), (g), (j) and (k) of the original order for discovery. Ms Jakes did not confirm that these documents ever existed. What she said was that if they did exist they had long since been deleted and were not then in her possession, custody or power. By letter dated 12th October 2012, Ms Burke?s solicitor sought an explanation as to how the defendant had been able to discover emails for the months of November and December 2007 but yet could not procure similar documentation for October 2007. Being dissatisfied with the discovery made by the defendant, Ms Burke brought an application for inspection pursuant to Order 31 rule 18 of the Rules of the Superior Courts. The High Court (Ryan J) refused Ms Burke?s application. Ms Burke appealed to the Court of Appeal against Ryan J?s order. She urged the Court to allow the appeal on the basis that it should conclude that the defendant had not complied with its discovery obligations. The defendant maintained that the appeal was misconceived in that the High Court could only order inspection in respect of documents which had been referred to in Ms Jakes? affidavit of discovery; an applicant for inspection must be in a position to identify the precise documents which they wish to inspect.
Held by Irvine J that the High Court judge was correct in his interpretation of the limitations of the plaintiff?s right to inspection of documents which were actually discovered as opposed to those which were omitted, borne out by the decision of Kelly J in Cooper Flynn v RTE [2000] 3 IR 344. Irvine J held that the plaintiff?s residual complaints concerning the sufficiency of the defendant?s composite affidavit of discovery were matters, which if she wishes to pursue them, must be dealt with by the High Court at first instance, perhaps by way of application for further and better discovery. Irvine J held that they could not be dealt with by the Court of Appeal as they do not bear upon her entitlement to the order for inspection which she sought from Ryan J; they bear upon the defendant?s compliance with the order made by O?Neill J for discovery on the 5th March 2012 and compliance with that order must be dealt with by the High Court at first instance.
Irvine J held that she would dismiss the appeal.
Appeal dismissed.
This is an appeal against the order of the High Court (Ryan J.) refusing the appellant's (?Ms. Burke?) application for inspection brought by her pursuant to Order 31 rule 18 of the Rules of the Superior Courts
The plaintiff at the time of the events material to this appeal was a payroll specialist working for the defendant company at its premises in Ballybrit, Galway.
In her proceedings, which she commenced in February 2010, Ms. Burke maintains that she was subjected to a sustained period of bullying, harassment and intimidation in particular during 2007 as a result of which she has sustained personal injuries for which she claims damages.
A full defence was delivered on 20th July 2010. This included a plea of contributory negligence on the part of Ms. Burke.
Ms. Burke brought an application seeking discovery of documents which she considered necessary and relevant to the proof of her claim and by order of 5th March 2012 O'Neill J. ordered discovery of nine categories of documents including certain e-mails, minutes of meetings, telephone logs etc.
It is perhaps relevant to note that Ms. Burke maintains that the defendant habitually backed up all of its e-mail communications to an Outlook exchange server and further, that by letter dated 18th May 2009, an undertaking was sought from the defendant that it preserve any materials relevant to the proceedings.
Discovery was eventually made on the defendant's behalf by Ms. Josephine Jakes on 16th July 2012. In the first schedule of her affidavit Ms. Jakes identified the documents which were available to be discovered. Then, at para. 3 she referred to the second schedule to her affidavit wherein six categories of documents were identified. These were numbered 1 to 6 and correspond with categories (a), (c), (d), (g), (j) and (k) of the original order for discovery. Ms. Jakes did not confirm that these documents ever existed. What she said was that if they did exist they had long since been deleted and were not then in her ?possession, custody or power?. I note she did not declare whether such documentation as might have been in existence at an earlier stage was within her procurement, as is the obligation of a party against whom discovery is ordered.
By letter dated 12th October 2012, Ms. Burke's solicitor sought an explanation as to how the defendant had been able to discover emails for the months of November and December 2007 but yet could not procure similar documentation for October 2007.
Being dissatisfied with the discovery made by the defendant, Ms. Burke then brought her application for inspection in the following terms:-
?1. An order pursuant to Order 31 rule 18 of the Rules of the Superior Courts directing the provision of inspection facilities to the plaintiff in respect of the following matters:–
(a) Inspection of the Defendant's servers in use during the period from September 2007 to March 2008, to include on-site and off-site servers and back-up equipment and/or of the defendant's PC or laptop computer (including the processor (s) contained therein) used by the plaintiff, by experts retained on behalf of the plaintiff;
(b) Inspection of the internal telephone logs/records of Lorraine Kelly between 27th November 2007 and 7th December 2007.?
From the transcript of the hearing before the High Court, it would appear that Ryan J. refused the relief sought based on the following conclusions:-
(i) Firstly, as a matter of law, the party for whose benefit discovery is made is entitled to inspect any documents as discovered under Order 31. However, that is a relief which relates to a document that has been discovered, rather than one that has not been discovered.
(ii) Secondly, that if the party in whose favour a discovery order is made believes that the party against whom they have obtained discovery has failed to produce documents within their possession, power or procurement, their remedy is to apply for an order seeking further and better discovery. The rules do not envisage the party who harbours the suspicion that certain relevant documents have been withheld the right to seek what he described as a ?handy way? of finding out whether such documents do in fact exist. The suspicious party could not be granted an order which would permit them trawl through documents held by their opponent which might not be relevant to the proceedings or documents held by a third party server where to do so might transgress the rights of other parties not involved in the proceedings. Such an approach was not permissible.
In the aforementioned circumstances Ryan J. concluded that Ms. Burke's remedy lay in an application for further and better discovery or an application to cross examination Ms. Jakes on her affidavit.
On 4th December 2012 the plaintiff...
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