Daly v Ardstone Capital Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 29 June 2020
• Neutral Citation: [2020] IEHC 345
• Date: 29 June 2020
• Docket Number: Record Number: 2016/7316P
• Court: High Court

BETWEEN/

JOHN DALY

PLAINTIFF

- AND -

ARDSTONE CAPITAL LIMITED

DEFENDANT

[2020] IEHC 345

Murray J.

Record Number: 2016/7316P

THE HIGH COURT

Costs – Discovery – Legal Services Regulation Act 2015 – Parties seeking costs – Whether it was appropriate to make no order as to costs

Facts: The plaintiff, Mr Daly, asked the High Court to make an order that he recover the costs of an application for further and better discovery, noting that he succeeded in obtaining some of the relief claimed in the motion. The defendant, Ardstone Capital Ltd, relying upon its claim that significant time and argument was spent litigating categories of discovery to which the plaintiff was not entitled, asked that the Court either make an order for the defendant’s costs or a substantial part thereof, or in the alternative that the costs be reserved to the trial of the action.

Held by Murray J that the plaintiff was not entirely successful, but he did prevail in some significant respects; the defendant, at the same time, succeeded in defeating important and distinct aspects of the application. Murray J held that this occurred in a context in which, while arising in the course of a single application for ‘further and better discovery’, each complaint in relation to various categories in fact sought a distinct and separate relief.

Murray J held that, having taking account of the matters on which the plaintiff did not prevail, and the provisions of s. 169(1)(b) of the Legal Services Regulation Act 2015 in particular, it was appropriate to make no order as to costs.

No order as to costs.

JUDGMENT of Mr. Justice Murray delivered on the 29th day of June 2020

1 While the plaintiff in this case prevailed in obtaining some relief on foot of his application for further and better discovery ( [2020] IEHC 200), his success was only partial.

2 He won three distinct aspects of his application. I held that the plaintiff was entitled to further and better discovery of the spreadsheet appearing as exhibit CQ 3 to the affidavit of Connor Quigley sworn on the 4 July 2019, together with the e-mail by which that spreadsheet was sent to the defendant. Because the plaintiff had succeeded in obtaining discovery of that document, I ordered that the defendant should also discover any other documents relating to any entitlement or promise of the kind alleged by the plaintiff. I directed that the defendant make further and better discovery of all residential investment presentations issued that included the plaintiff's profile. I also required the defendant to swear an affidavit addressing specific issues arising from the deletion by the defendant of the plaintiff's e-mails following the termination of his employment.

3 However, I refused significant parts of the relief claimed by the plaintiff. I determined that he had not made out a case on the established principles that he was entitled to further and better discovery in relation to Promotes promised or paid to other employees of the same category as the plaintiff, of residential investor profiles or of documents demonstrating the pursuit of other property acquisition and/or development and/or fund generation projects not inside the scope of the AVP or ARP by the defendant's partners or employees during the period of employment.

4 The plaintiff now asks the Court to make an order that he recover the costs of the application for further and better discovery, noting that he succeeded in obtaining some of the relief claimed in the motion. The defendant, relying upon its claim that significant time and argument was spent litigating categories of discovery to which the plaintiff was not entitled, asks that the Court either make an order for the defendant's costs or a substantial part thereof, or in the alternative that the costs be reserved to the trial of the action.

5 Although this application was at hearing for less than a day, the parties exchanged detailed legal submissions addressing each of the separate respects in which an order for further and better discovery was sought. It is thus possible to identify a number of distinct issues that fell for determination by the Court, to clearly isolate the matters on which the plaintiff prevailed, and those on which the defendant succeeded, and to decide with reasonable accuracy the time and resources directed to those questions. Furthermore, while these various questions came before the Court on foot of a single application for further and better discovery, each of these issues presented a distinct claim for relief in the form of an application for further and better discovery of particular categories of documents.

6 Thus, the plaintiff succeeded in an argument that, essentially, depended on the correct interpretation of two categories of the discovery - categories 1(i) and category 3(i). He also succeeded in his contention that the defendant should be required to deliver a further affidavit of discovery addressing the deletion of his e-mails. At the same time, he failed to discharge the burden imposed upon him by the authorities in respect of the complaints he made arising from categories 1(ii), 3(ii), and category 4. It is relevant in this regard that I noted in my judgment (para. 28) that the stance adopted by the defendant in relation to category one was, having regard to a lack of clarity in the drafting of that category, understandable, and that this aspect of the application could have been avoided by clearer drafting. However, at the same time I adopted the view that the failure of the defendant to make proper discovery in connection with the deleted e-mails...