O'Donnell v Michael Ryan

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 29 March 2022
• Neutral Citation: [2022] IECA 76
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/79

Between:

Fiona O'Donnell

Plaintiff/Respondent

and

Michael Ryan (Trading as the Rybo Partnership)

First Defendant

Saltan Properties Limited

Second Defendant/Appellant

ELK House Company Ireland Limited

ELK Fertighaus AG (Trading as ELK Building Systems)

McHugh O'Cofaigh

Mark O'Reilly (Trading as Mark O'Reilly and Associates)

Mark O'Reilly and Associates Limted

Defendants

[2022] IECA 76

Whelan J.

Faherty J.

Binchy J.

Court of Appeal Record No. 2020/79

THE COURT OF APPEAL

Discovery – Relevance – Necessity – Appellant appealing from an order refusing a category of discovery sought by the appellant – Whether the documents sought were both relevant and necessary to the proper disposal of the action

Facts: The plaintiff/respondent, Ms O’Donnell, on 19 December 2012, issued a plenary summons claiming damages for breach of contract, negligence, breach of duty and/or breach of statutory duty. The second defendant/appellant, Saltan Properties Ltd (Saltan), appealed to the Court of Appeal from the order of the High Court of 18 December 2019, perfected on 9 March 2020, following delivery of an ex tempore judgment on 18 December 2019 wherein a category of discovery sought by Saltan was refused. Saltan was ordered to make discovery sought by the respondent as set out in the appendices to the court order, Categories A, B, C, D, E, F and H. Costs were awarded to the respondent and same was stayed until the determination of the proceedings. In its notice of appeal filed 13 March 2020, Saltan contended that, in relation to its discovery application, the trial judge erred in law and in fact in refusing to order that discovery be made in terms of the third category of discovery sought by Saltan. In respect of the respondent’s discovery application, Saltan contended that the trial judge erred in law and in fact in: (i) determining that documents coming within the categories of discovery sought by the respondent at Categories B, C, D, E and H were, subject to the temporal limitations which he imposed, relevant in the sense that term is used in the applicable jurisprudence; (ii) determining that discovery of documents coming within Categories B, C, D, E and H sought by the respondent, subject to the temporal limitations which he imposed, were necessary; (iii) failing to engage with and accept the proposition that the disputed issues between the parties would be determined by reference to the evidence of experts and that the documents sought were not, therefore, necessary; (iv) failing to engage with and accept the position that the issues to which Category C was directed would be determined by reference to the evidence of experts and that discovery of same was not, therefore, necessary; and (v) directing that discovery be made in the terms of Category H in circumstances where the said category amounted to a request for general discovery in respect of a plea made rather than a request for specific documents or classes of documents.

Held by Whelan J that the discovery order made in favour of the respondent, in light of the pleadings, the reasoning of the trial judge and the clear evidence both as to relevance and necessity ought not to be interfered with in any respect. Whelan J was satisfied that the fair resolution of the proceedings required the respondent to make discovery to Saltan of the documents sought in Category 3 all of which were both relevant and necessary to the proper disposal of the action. Whelan J held that such discovery would enhance the prospects of justice being done between the parties. Whelan J held that the order for discovery of 18 December 2019 made in the Saltan motion of 29 July 2019 would be amended to include Category 3 thereof, the said discovery to be by affidavit on or before 31 July 2022 with Ms O’Donnell to be the deponent.

Whelan J held that the respondent was entitled to an order for the costs of the appeal to be adjudicated in default of agreement said costs to be stayed pending determination of the proceedings with an order over in favour of Saltan to the extent of one half only of its costs of the appeal same to be adjudicated in default of agreement said costs to be stayed pending determination of the proceedings.

Appeal allowed in part.

Judgment of Ms. Justice Máire Whelan delivered on the 29th day of March 2022

Introduction

1 This is an appeal from the order of the High Court of 18 December 2019, perfected on 9 March 2020, following delivery of an ex tempore judgment on 18 December 2019 wherein a category of discovery sought by, Saltan Properties Limited (“Saltan”) was refused. Saltan was ordered to make discovery sought by the Respondent as set out in the appendices to the court order, Categories A, B, C, D, E, F and H. Costs were awarded to the Respondent and same was stayed until the determination of the proceedings.

Background

2 Saltan was engaged by the first defendant to develop Riverwalk Court Apartments in Ratoath, Co. Meath (“the Development”), which consists of twenty-six apartments. It was constructed using a pre-fabricated external membrane system (“the Elk System”) designed by the fourth defendant and supplied and installed by the third defendant. The first defendant engaged the fifth defendants to supply architectural services and the six and seventh defendants to supply engineering services.

3 The Development was completed in or around December 2005. Each apartment was sold with the benefit of a defects liability guarantee known as the Premier Guarantee for Ireland (“the Premier Guarantee”).

4 By Lease dated 14 December 2005, the first defendant and Saltan demised an apartment to the Respondent for a term of 950 years. Subsequently, difficulties including with water ingress were encountered by purchasers including the Respondent.

The proceedings

5 On 19 December 2012 the Respondent issued a plenary summons claiming damages for breach of contract, negligence, breach of duty and/or breach of statutory duty. Twenty-five other similar suits were commenced against the defendants arising from the same issues. This is one of three test cases in which the Plaintiffs are referred to as the “Master Plaintiffs”.

6 The first defendant is no longer a party to the proceedings following the amendment of the statement of claim on 15 March 2019 pursuant to the order of Noonan J. of 13 March 2019.

7 Aspects of the pleadings of particular relevance to the issue of discovery include, inter alia, the following;

The Respondent's statement of claim was amended on 4 December 2017 pursuant to the order of Baker J. in the High Court on 29 November 2017 to insert para. 260A which pleads regarding Saltan:-

“For the avoidance of any doubt, the Plaintiff is not pursuing a claim against the Second Defendant for any loss, damage, inconvenience or expense insofar as same was insured pursuant to the Premier Guarantee Scheme policy of insurance incepted in relation to the Apartment (as particularised in the Scott Schedules appended hereto), to the extent of such insurance cover. The Plaintiff's claim against the Second Defendant is for such loss, damage, inconvenience or expense as was not insured pursuant to the said policy of insurance (as also particularised in the Scott Schedules appended hereto). For the further avoidance of doubt, the Plaintiff's claim for uninsured losses is maintained, whether or not such losses have been caused in whole or in part by insured defects.”

8 Paragraph 22 of Saltan's amended defence pleads:-

“The second named Defendant makes no admission in relation to the assertion that the Apartment or the Development exhibit defects giving rise to loss, damage, inconvenience or expense or have at any time exhibited such defects and the Plaintiff is put on strict proof thereof.”

Paragraph 38 thereof pleads:-

“Insofar as the Plaintiff is pursuing a claim for uninsured losses allegedly suffered in consequence of insured defects, such consequential losses arise from the failure on the part of the Plaintiff and her insurer to remedy the insured defects in a timely manner and are not losses for which the second named Defendant can be held responsible where it is entitled to be indemnified and/or held harmless in respect of the remediation of the underlying defects.”

Discovery requests and responses

9 On 12 June 2019 solicitors for the Respondent wrote to Saltan's solicitors to request voluntary discovery of eleven categories of documents, A to K, set out more fully below.

10 Solicitors for Saltan responded on 9 July 2019, advising that Saltan was prepared to make discovery of categories A and F limited to documents generated or received prior to 31 December 2005 and declining the balance of the Respondent's request on the grounds that the categories sought were either not necessary or not appropriate.

11 On 5 July 2019 solicitors for Saltan wrote to the Respondent's solicitors requesting voluntary discovery of four categories of documents. In respect of Category 2, Saltan sought discovery of:-

“Correspondence (including texts and emails and group messages) passing between the Plaintiff of the one part and the Management Company [Riverwalk Court Management Company CLG] and/or the owners' or residents' representatives and/or other Plaintiffs in similar proceedings to these proceedings against the same Defendants of the other part, and between all of the above inter se, in respect of the defects in the Development, but limited to correspondence sent or received prior to the date on which these proceedings were commenced.”

Category 3 sought discovery of:-

“Correspondence (including texts and emails and group messages) passing between the Plaintiff, and between the Plaintiff's representatives, and between the Management Company, and between the Management Company's representatives, and between the owners' or residents' representatives, and between other Plaintiffs in similar proceedings to these...