Croke -v- Waterford Crystal Ltd & Anor, [2009] IEHC 158 (2009)

Docket Number:2001 6543 P
Party Name:Croke, Waterford Crystal Ltd & Anor
Judge:Birmingham J.
 
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THE HIGH COURT 2001 6543 P

BETWEEN

WALTER CROKEPLAINTIFFAND

WATERFORD CRYSTAL LIMITED

AND

IRISH PENSION TRUST LIMITEDDEFENDANTSJUDGMENT of Mr. Justice Birmingham delivered the 31st day of March, 2009

  1. This matter is before the court in relation to an application for discovery brought by the plaintiff against the second named defendant.

  2. In the course of a judgment that I gave on 29th April, 2008, I reviewed the nature and history of the present proceedings and I will not do so again. However, in the context of the motion now before the court I simply draw attention to the fact that the second named defendant has pleaded in its defence that the plaintiff's claim is statute barred and the plaintiff in reply has sought to defeat the statute by pleading that the first named defendant fraudulently concealed the cause of action.

  3. The position is that the plaintiff initially sought discovery on 29th July, 2005, that application related to twenty-five categories of documents and then on 9th July, 2008, again sought discovery, this time in respect of six categories. The parties and their advisors have in a truly commendable manner sought to reach agreement in relation to the scope of discovery and have achieved a very considerable measure of success. The result of these efforts is that out of a starting total of 31 categories, albeit with some element of overlap and repetition, that there is now only one category in respect of which there is a fundamental difference of principle between the parties.

  4. In respect of a limited number of other categories, the position is that while there is agreement in principle that discovery should be made, the parties are not agreed on the details and specifically are not in agreement in relation to the time duration that is appropriate and also in disagreement as to whether drafts of particular documents are discoverable.

  5. The legal principles that apply in relation to these situations are well-known, at this stage and have not been the subject of any controversy between the parties.

  6. In particular it is not in dispute that the plaintiff, if he is to succeed must establish in respect of the documents that remain in dispute that they are relevant to the issues as they emerge from the pleadings and are necessary for either a fair disposal of the case or to save costs. This second leg of the test requires that consideration be given to issues of proportionality.

  7. The one issue where there remains fundamental disagreement relates to category 6 of the request of the 9th July, 2008. A request was made in these terms,

    "All documents, correspondence, memoranda, minutes or other notes of whatever kind (including all correspondence between the second defendant and its legal advisors and/or attendances taken by the second defendant's legal advisors of meetings and/or discussions between the second defendant and its legal advisors), in the second defendant's possession, power or procurement...

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