Dully v Athlone Town Stadium Ltd No. 4

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 16 July 2018
• Neutral Citation: [2018] IEHC 433
• Docket Number: [2017 No. 252 S.P.]
• Court: High Court
• Date: 16 July 2018

[2018] IEHC 433

THE HIGH COURT

Humphreys J.

[2017 No. 252 S.P.]

BETWEEN

DAVID DULLY

PLAINTIFF

AND

ATHLONE TOWN STADIUM LIMITED

DEFENDANT

(No. 4)

Discovery – Particulars – Motion – Defendant seeking discovery and particulars – Whether the affidavit of discovery of the plaintiff was incorrect

Facts: In Dully v Athlone Town Stadium Ltd (No. 1) [2018] IEHC 309 Humphreys J removed the defendant, Athlone Town Stadium Ltd, as a trustee of the trust in issue in the proceedings and directed the conveyance of the legal interest in the property concerned to a newly-appointed trustee. In Dully v Athlone Town Stadium Ltd (No. 2) [2018] IEHC 225 Humphreys J declined to order a stay on the conveyance of the legal title. In Dully v Athlone Town Stadium Ltd (No. 3) [2018] IEHC 366 (Humphreys J made a formal order pursuant to O. 3(22) of the Rules of the Superior Courts to allow the plaintiff, Mr Dully, to deal with the remaining reliefs sought, including damages, by way of special summons, and gave consequential directions. The defendant brought a motion for discovery and particulars, dated 20th June, 2018.

Held by the High Court (Humphreys J) that para. 3 of the affidavit of discovery of the plaintiff was incorrect in that it averred that there were no documents other than the ones disclosed that were relevant to the matters in issue in the suit; that was inaccurate because that was language appropriate for a general order of discovery and it was likely that the plaintiff did have other documents relevant to the action overall, but the affidavit was dealing in fact only with the categories of documents sought. Humphreys J held that the averment at para. 3 of the affidavit should read that there are no documents other than those relevant to the discovery being sought by the defendant.

Humphreys J held that, as it was not entirely clear whether comprehensive steps were taken by the plaintiff regarding sourcing documents from all other members of the management committee, the appropriate order was to direct that the plaintiff should swear an affidavit (a) confirming that he had contacted all members of the management committee of the club seeking the documents specified in the request for discovery by the defendant, subject to any assessment by the plaintiff of their relevance to that request or of privilege relating to those documents and (b) correcting para. 3 of the affidavit of discovery by changing "relating to the matters in question in the suit" to "coming within the request for discovery made by the defendant".

Judgment approved.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 16th day of July, 2018

1 In Dully v. Athlone Town Stadium Ltd (No. 1) [2018] IEHC 309 [2018] 4 JIC 1203 (Unreported, High Court, 12th April, 2018) I removed the defendant as a trustee of the trust in issue in these proceedings and directed the conveyance of the legal interest in the property concerned to a newly-appointed trustee. In Dully v. Athlone Town Stadium Ltd (No. 2) [2018] IEHC 225 [2018] 4 JIC 1603 (Unreported, High Court, 14th April, 2018) I declined to order a stay on the conveyance of the legal title. In Dully v. Athlone Town Stadium Ltd (No. 3) [2018] IEHC 366 (Unreported, High Court, 30th May, 2018) I made a formal order pursuant to O. 3(22) of the Rules of the Superior Courts to allow the plaintiff to deal with the remaining reliefs sought, including damages, by way of special summons, and gave consequential directions.

2 I now deal...