Cork Plastics (Manufacturing) Ltd and Others v Ineos Compounds UK Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 July 2007
• Neutral Citation: [2007] IEHC 247
• Court: High Court
• Docket Number: [2001 No. 7739P]
• Date: 26 July 2007

[2007] IEHC 247

THE HIGH COURT

[No. 7739 P/2001]

CORK PLASTICS & HANIMEX (IRELAND) LTD v INEOS COMPOUNDS UK LTD & TIOXIDE EUROPE LTD

BETWEEN

CORK PLASTICS (MANUFACTURING), AND (BY ORDER) HANIMEX (IRELAND) LIMITED, CORK PLASTICS AND CORK PLASTICS SYSTEMS LIMITED

PLAINTIFFS

AND

INEOS COMPOUNDS UK LIMITED (FORMERLY KNOWN AS EVC COMPOUNDS LIMITED) AND BY ORDER TIOXIDE EUROPE LIMITED

DEFENDANTS

Abstract:

Practice and procedure - Discovery - Preliminary issue - Production of documents - Documents disclosed in prior proceedings in foreign jurisdiction - Whether prohibition on collateral use of documents disclosed in prior litigation extends to discovery of those documents in subsequent litigation - Whether production of documents prohibited

The plaintiff sought discovery of various documents from the defendant for the purposes of litigation being conducted in the High Court. The defendant was involved in prior litigation in England in relation to similar issues and swore an affidavit of discovery in the present proceedings which disclosed the existence of documents prepared in the course of the prior litigation. The parties sought a preliminary ruling from the High Court as to whether the documents were precluded from being discovered and/or produced in the present litigation.

Held by Mr Justice Clarke in ruling that:

1. the general rule was that documents which had been disclosed to another party in the course of litigation were taken to be subject to an implied undertaking not to use the documents other than for the purposes of the litigation concerned.

2. That the existence of an obligation not to make collateral use (or an implied undertaking to the same effect) did not prevent the disclosure, as opposed to the production, of the documents concerned.

3. That if the party in whose favour the order of discovery was made wished to seek the production of the documents concerned it was appropriate to join, as a notice party to any motion seeking production, any party in whose favour the obligation to produce existed.

4. In assessing the weight to be attached to the obligation on foot of the implied undertaking and, on the other hand, the obligation to disclose in the second set of proceedings, the court should place a heavy weight on the obligation to ensure that the second proceedings came to a just result and should not, in the absence of some significant countervailing factor, decline to direct production.

5. That the question of the availability or otherwise of documents, which are relevant to a judicial process in one jurisdiction, and where there was already a prohibition on collateral use by virtue of previous litigation, should be dependant on the happenstance of whether that previous litigation was in the same or another jurisdiction.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Clarkedelivered 26th July, 2007.

1. Introduction

2 2 1.1 In these proceedings, which have been assigned to me by the President of the High Court for case management, the plaintiffs ("Cork Plastics") claim, under a number of headings, for very substantial losses arising out of an allegation that certain compounds supplied to them for use in making fascias, and associated products to be used in house construction, were defective. It is said that the compounds caused "pinking" in the products manufactured by Cork Plastics. In consequence, it is said, very serious damage was caused to the Cork Plastics business.

3 3 1.2 There are many complex legal issues in the proceedings which derive, at least in part, from the precise contractual arrangements entered into between some of the parties and which involve the extent of the duty of care owed by and to those parties who had not direct contractual relations. There are also very significant factual questions concerning the alleged defects in the supplied compounds. The alleged losses are also in significant controversy.

4 4 1.3 These cases have been under management for some time and, it has to be said, the parties have, in my view, generally been constructively engaged in attempting to resolve the many pre-trial questions which have arisen and whose determination is necessary in order that these proceedings can be made ready for hearing. That constructive engagement can be seen from the fact that, despite the legal and factual complexities of the case, I have only been required to deliver one previous reserved judgment in respect of the issues which have arisen (concerning the possible trial of a preliminary issue).

5 5 1.4 The management of the case so as to make it ready for trial is reaching towards its conclusion. With that in mind I requested that the parties should supply an issue paper of all outstanding matters. It is again a testament to the constructive engagement of the parties that, at the case management hearing in respect of such outstanding matters, all bar one were either the subject of ready resolution or gave rise to acceptable proposals as to how matters might be brought forward with a view to ensuring that any remaining questions not capable of resolution between the parties should be determined at a final case management meeting now scheduled for late October. In passing I should note that I have adopted a practice in this case of directing that any costs associated with the orderly conduct of the case management, should be costs in the cause, in circumstances where I am satisfied that both sides have been constructively engaged in attempting to resolve any outstanding issues. It is only where a significant and separate issue requires independent argument and a formal judgment that I have considered making individual cost orders in respect of discrete elements of the process. It seems to me that the constructive engagement of parties with a case management process in complex litigation such as this is advanced by such a practice.

6 6 1.5 However, at the last case management hearing, one issue of principle concerning the discovery of documents was the subject of significant disagreement between the parties leading to a discrete hearing. This judgment is directed to that question.

2. The Issue

7 2 2.1 As indicated the issue was one of principle. There has, already, been significant litigation in the United Kingdom concerning similar allegations of defects in products associated with the defendants. The second named defendant ("Tioxide") has already sworn an affidavit of discovery which, I am told, discloses the existence of some 70 odd lever arch files of documents. In the course of that affidavit of discovery Tioxide disclosed the existence of certain documentation prepared in the course of those United Kingdom proceedings. In fairness to Tioxide it should be noted that, while disclosing the existence of that documentation, it was indicated that the relevant documents had not, as yet, been assessed by their legal advisors as to relevance. The fact, however, that the documents were mentioned at all, seems to imply that it is likely that at least some of the disclosed documentation may be relevant to these proceedings.

8 3 2.2 However Tioxide maintains that the documents concerned are governed by the provisions of the English Civil Procedures Rules ("CPR"). Rule 31.22 of the CPR provides as follows:-

9 2 "(1) a party to whom a document has been disclosed may use the document only for the purposes of the proceedings in which it is disclosed, exempt where -

10 (a) the document has been read to or by the court, or referred to, at a hearing which has taken place;

11 (b) the court gives permission; or

12 (c) the party who disclosed the document and the person to whom the document belongs agree.

13 (2) The court may make an order restricting or prohibiting the use of the document which as been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has taken place in public.

14 (3) An application for such an order maybe made -

15 (a) by a party; or

16 (b) by any person to whom the document belongs."

17 4 2.3 That rule replaced the former practice in England whereby documents which were disclosed to another party in the course of litigation, were taken to be subject to an implied undertaking not to use the document other than for the purposes of the litigation concerned. This latter position remains the case in this jurisdiction.

18 5 2.4 It is common case that the rule applies to the documents in dispute. It is also common case that none of the documents are excluded by virtue of the provisions of subrule (1)(a). The documents concerned can, therefore, only be disclosed with the agreement of the relevant party or parties under sub rule (1)(c) or with the courts permission under sub rule (1)(b).

19 6 2.5 In those circumstances Tioxide maintains that, as a matter of Irish procedural law, there is no obligation to seek the relevant consents or permissions. Cork Plastics disagree. That is the issue which I have to decide. Nothing turns on the specific nature of the documents concerned, it being common case that they are all the subject of the restriction on use specified by the CPR. The issue, therefore, depends on the resolution of the principle of law applicable rather than on the specific facts of this case.

3. The Law

20 2 3.1 While the prohibition on use of disclosed documents in the United Kingdom is now described as a restriction on collateral use, the basic obligation does not appear to be, in substance, different from that which arose under the former implied undertaking which applied in that jurisdiction and which continues to apply in this jurisdiction. In the circumstances it seems to me that the principles applicable in this jurisdiction are likely to be the same or very similar to those applied, in a like case, in the United Kingdom. In those...