Farnon v Dunnes Stores Dundalk Ltd

JudgeMaster of the High Court
Judgment Date23 June 2005
Neutral Citation[2005] IEHC 217
CourtHigh Court
Date23 June 2005

[2005] IEHC 217


No 14206P/2001
Farnon v Dunnes Stores Dundalk Ltd





Practice and procedure - Discovery - Category specific discovery - Practice and language of practitioners seeking discovery - Pleadings

Facts: In this application by the plaintiff seeking an order of discovery, the Master of the High Court, in considerable detail, set out the principles of the various kinds of discovery, the practice adopted by practitioners in seeking and resisting discovery orders.

Held by the Master of the High Court ruling that the plaintiff 's request for discovery was too broad and ruled discovery of a focused category of discovery.

Reporter: BDD


Master of the High Court23rd June, 2005


The days of general discovery are over.


Category-specific discovery may be requested under the Rules of Court, but practitioners, for the most part, appear to be still rather fond of general discovery and have simply broken general discovery into its component parts by specifying the issues and requesting "all documents relating to" such and such a disputed fact.


And the language of practitioners hasn't changed much either. The three standard protests voiced by a respondent to a motion for discovery remain (as they were in the days of general discovery):


(1) "it's not relevant"


(2) "it's too broad"


(3) "it's fishing"


Practitioners are also apt to remind me that the test is still whether discovery is "necessary either for disposing fairly of the cause or matter or for saving costs" (O. 31, r. 12(3)) and that the Peruvian Guano gloss on that test still holds sway as it did in the days of general discovery.


Perhaps so, but there is now a much closer scrutiny of that "need". It has to be a "genuine" need (Supreme Court, Ryanair v. Aer Rianta, 2/12/03). It has to be a "real" need (Supreme Court, Taylor v. Clonmel Healthcare Ltd., 11/2/04). The need has to be spelt out as (part of) the "reason" for the initial request for voluntary discovery. And if a court application for discovery is being made, the "need" has to be verified on oath.


The verification required of applicants should not be just an empty formula. Unless the particular circumstances as to available evidence, experts' requirements and so forth are mentioned as the basis on which the applicant has formed his conclusion as to necessity, the respondent is unable to know or meet the case being made. Unfortunately most applicants put their case (usually set out in the reason for each category sought in voluntary discovery) solely on the basis that the documents in a particular category are relevant to a particular fact which is in dispute. Clearly, that's not enough.


Because, ultimately, the test for discoverability is the fairness of the trial, which, in the final analysis, is an uncertain and almost subjective yardstick, it may be thought that discovery applications are also incapable of being judged by reference to any sort of scientific, or rational, or fixed principles. Not so. Even before the days of category-specific discovery the respondent's protests about relevance, fishing and breadth of discovery were simply user-friendly labels attaching to technical submissions rooted in the principles of pleading. These principles and these technicalities still govern our rules of procedure.


· - if you ask for discovery in respect of a fact which is not pleaded (or which is pleaded but not denied) or which is not a material fact, it will be refused because "it's not relevant".


· - if you ask for discovery for documents "relating to" a fact in issue it may be refused as unnecessarily extensive when a particular subset of documents would be equally effective ... the discovery sought is clearly "too broad".


· - if you ask for discovery of documents in respect of a factual allegation of a general and non-specific nature (even if the fact is listed as a particular) you will not be allowed to "fish" in the respondent's papers in order to see if you spot anything: plead with specificity and then you'll get discovery.


Discovery is not about the applicant's case. It is about the applicant's case as pleaded.


If you've failed to plead the case to best advantage, don't be surprised if discovery is refused. Consider it a lucky break to have had the deficiencies in your pleadings highlighted at an early stage, after which you have an opportunity to mend your hand.


It is an entirely separate matter - upon which I will express no opinion today - as to who should ultimately bear the costs of an application which is defective for technical reasons. If it's your error, why should the respondent pay the costs if they're reserved and you win the case? If it is your error and your client ultimately loses the case, why should he have to bear the costs of the technical deficiency? Indirectly, even if he wins the action the applicant may end up paying the discovery application costs of both parties! There is clearly little real incentive here for practitioners to try to avoid making an application which is unsuccessful. It is most unsatisfactory.


It is not altogether surprising therefore that most discovery applications are approached with a healthy degree of scepticism regarding the "necessity" for discovery. Is discovery "necessary" in this case?


It appears that on 29 th April 2000 the plaintiff (a "visitor": Occupiers Liability Act, 1995) slipped on liquid (or "liquid matter") on the floor of the defendant's premises in Dundalk. That's the plaintiff's case as pleaded (actually it's not: I have had to assume that she slipped on the liquid. A fall is mentioned, and there is reference to liquid matter on the floor - I am putting two and two together!). Particulars (15.4.02) disclose that the plaintiff's fall was witnessed by a friend. Further particulars (9.6.03) refer to a water leak "at or around a column adjacent to the accident" and "saturation of the carpet area at its base and across the aisle floor". This wording suggests that the scene had by then been inspected by the plaintiff's expert witness; and there...

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