Corscadden v BJN Construction Ltd and Another

JudgeMaster of the High Court
Judgment Date09 February 2007
Neutral Citation[2007] IEHC 42
Docket Number[No. 9197 P/2001]
CourtHigh Court
Date09 February 2007

[2007] IEHC 42


[No. 9197 P/2001]





Practice and procedure - Discovery - Non-party discovery - Whether the documents sought from the non-party by way of discovery were relevant and necessary to the matters in issue between the plaintiff and the defendants - Order 31, rule 29 of the Rules of the Superior Courts, 1986

Facts: The second named defendant sought discovery of documents relating to a fatal accident involving a named individual from the Health and Safety Authority, which was not a party to these proceedings. The non-party asserted public interest privilege over the documents sought. The documents were sought on the grounds that the non-party carried out an investigation into the death of that individual and also in order to obtain information in relation to the system of work operated by the first named defendant at the time of the incident.

Held by the Master in refusing the application: That the evidence in support of the applicant was not weighty. There was no evidence that the applicant did not already have information regarding the system of work, or that the information did not come into the public domain during the prosecution of the first named defendant in relation to that incident, or that the information was not otherwise available to the applicant from the first named defendant or from the inquest file. Furthermore, it was not proved that the applicant really needed the documentation sought. Having regard to the foregoing there was no need to deal with the public interest privilege issue asserted by the non-party.

Reporter: L.O’S.

Master of the High Court
9th February, 2007

This decision concerns non-party discovery of documents under O. 31, r. 29 in general and in particular, whether an order should be made where the non-party is a public body asserting public interest privilege.


The application for non-party discovery was one of the changes introduced when the 1986 Rules of the Superior Courts replaced the 1963 rules. Order 31 rule 29 provides:-

"Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is(sic) likely to be in a position to give evidence relevant to any such issue may by leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents. The provisions of this Order shall applymutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99."


In 1986, when this new procedure was introduced, general discovery was still available under O. 31, r. 12 and the rigour now needed for the category-specific discovery procedures introduced in 1999 played no part in discovery decisions. Consequently, all pre-1999 judgments concerning non-party discovery need to be read in that historical context. In short, even though O. 31, r. 29 appears now more liberal and less restrictive in some ways that the new O. 31, r. 12, in fact it was intended to be considerably more restrictive than the general discovery available from parties in 1986 and until 1999.


Indeed, even the terminology found in these pre-1999 judgments must now be interpreted with caution and may, in some cases, need to be corrected if the judgments are to continue to be employed as precedents. One example is the term"relevance". In the days of general discovery all relevant documents would be ordered usually without question. If they were relevant they were ipso facto discoverable. Relevance and discoverability were interchangeable. The "discoverability" of a document was, more often than not, described as its "relevance" when, strictly speaking, relevance is an inert technical concept which originates in the law of evidence, while discoverability imports a measurement, case by case, of the weight to be attached to production of documents in securing a fair trial. The former concept is clinical, logical; the latter imports considerations of justice and the exercise of discretion.


It has always been an integral feature of due process that a party may call any witness he chooses and, indeed, that the court will assist him to do so by subpoena where necessary. (Every general principle of course always has its exceptions and certain witnesses are not "compellable.) The judicial system is not at all a private matter: judges are public servants, and all citizens must attend if called on to do so either as jury persons or as witnesses. It is a public duty. It is in the public domain.


Consequently, the notion of requiring a non-party to discover documents prior to a trial is not all that innovative. In reality, the only change effected was that the documents would become available to the parties in advance of the trial, rather than during it (a"clumsy" procedure: Costello J.). The change was presumably expected to improve courtroom efficiency. In AIB v. Ernst and Whinney [1993] 1 I.R. 375, at 397 O'Flaherty J. commented in the Supreme Court that "the Minister's officers will have the consolation, too, of knowing that compliance with the order for discovery will be far less onerous than the alternative which would involve attendance with all the documents day in and day out in court in answer to a subpoena duces tecum."


Yet for all that, every application for non-party discovery must involve consideration of just that issue: why order discovery if the non-party can attend court with the file? It is demonstrably not correct to say that, given that the non-party's costs of discovery will be defrayed by the applicant party, it makes no difference to the non-party whether he makes pre-trial discovery, or attends court with the file.


Finlay C.J. inAIB v. Ernst and Whinney took a literal view of O. 31, r. 29 but explored the nature of the court's discretion to make the order, a discretion which (389) - "… must relate… to a consideration of particular oppression or prejudice which will be caused to the person called upon to discover such documents, notcapable of being adequately compensated by the payment by the party seeking it of the costs of making such discovery."

"One can well imagine the serious damage that might be done to a small firm of auditors and accountants or the like if they had to take one or two members of staff to devote to an exercise of little direct importance to that firm."

McCarthy J. observed in the same case that -

In the days when general discovery by the parties was the norm, perhaps non-party discovery was assumed to be likely to be less onerous for the non-party than discovery was for the party, but now (post 1999) where the ever growing burden of party discovery has been alleviated by the newly critical assessment of the "need" for same, it is to be expected that (the loose wording of O. 31, r. 29 notwithstanding), the court will be giving applications for non-party discovery an equally critical examination, and will make orders only when necessity is demonstrated clearly. In strict logic, in the absence of a necessity criterion, all potential witnesses could be the subject of orders for non-party discovery. That cannot have been the thinking behind the 1986 change. Thesubpoena alternative will be one factor which must be considered carefully.


In short, if you need to demonstrate (as you now do) in an application for party discovery that the specific categories sought are not just relevant but also necessary (by reason of some evidential deficit on some perceived litigious disadvantage) you certainly, as a minimum, must demonstrate likewise in applications for non-party discovery. The 1986 rules may not say so, but post 1999 the new discovery rules apply,mutatis...

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  • Edward Keating v Radio Telefís Éireann and Others
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    • 9 May 2013
    ...2 IR 607; McLaughlin v Aviva Insurance (Europe) & Anor [2011] IESC 42, [2012] 1 ILRM 487; Corscadden v BJN Construction Ltd & Anor [2007] IEHC 42, (Unrep, Master of the High Court, 9/2/2007); Hannon v The Commissioner of Public Works & Ors, (Unrep, McCracken J, 4/4/2001); McDonagh v Sunday......

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