Hire Services Ltd (E) v an Post
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] IEHC 400 |
| Docket Number | [2009] 515 P |
| Court | High Court |
| Date | 29 June 2018 |
[2018] IEHC 400
THE HIGH COURT
Creedon J.
[2009] 515 P
AND
Contract – Specific performance – Discovery – Defendant seeking an order striking out the plaintiff's claim for failure to comply with their agreement with the defendant with regard to discovery – Whether the plaintiff complied with the agreement reached between the parties in respect of discovery
Facts: The defendant, An Post, applied to the High Court seeking the following reliefs against the plaintiff, Hire Services Limited (E) and Hireservices (I): (a) an order striking out the plaintiff's claim for failure to comply with their agreement with the defendant with regard to discovery; (b) further, or in the alternative, an order directing the plaintiff to make further and better discovery; (c) further, or in the alternative, an order for the following three further categories of discovery: (i) all documentation evidencing correspondence, communication and/or discussion between the servants or agents of the plaintiff (including but not limited to Mr Pender) in respect of the hiring of vehicles by the plaintiff to the defendant; (ii) all documentation evidencing correspondence and/or communication between the plaintiff, its servants or agents (including but not limited to Mr Pender) and the defendant, its servants or agents (including but not limited to Mr Cunningham) in respect of the hiring of vehicles by the plaintiff to the defendant; (iii) the plaintiff's template contracts for longer term leases of motor vehicles (i.e. leases in the region of five years duration) and samples of such contracts as concluded with customers (redacted if necessary to protect commercial confidentially). The motion arose from High Court plenary pleadings seeking specific performance of the contract between the plaintiff and the defendant, or in the alternative damages for breach of contract and ancillary relief arising from the plaintiff's claim that vans, which they supplied to the defendant, were supplied on the basis of a five year lease.
Held by Creedon J that the plaintiff complied with the agreement reached between the parties in respect of discovery and that the defendant had not met the test set out in Sterling Winthrop Group Limited v Farbenfabriken Bayer Aktiengesellschaft [1967] 1 IR 97 which had been followed in subsequent Irish cases.
Creedon J held that she would refuse the reliefs sought by the defendant.
Reliefs refused.
The case concerns a motion by the above named defendant against the plaintiff seeking the following reliefs:
(a) an order striking out the plaintiff's claim for failure to comply with their agreement with the defendant with regard to discovery;
(b) further, or in the alternative, an order directing the plaintiff to make further and better discovery;
(c) further, or in the alternative, an order for the following three further categories of discovery:
(i) all documentation evidencing correspondence, communication and/or discussion between its servants or agents of the plaintiff (including but not limited to Richard Pender) in respect of the hiring of vehicles by the plaintiff to the defendant;
(ii) all documentation evidencing correspondence, communication and/or between the plaintiff its servants or agents (including but not limited to Richard Pender) and the defendant its servants or agents (including but not limited to its servant or agent Gerry Cunningham) in respect of the hiring of vehicles by the plaintiff to the defendant;
(iii) the plaintiff's template contracts for longer term leases of motor vehicles (i.e. leases in the region of five years duration) and samples of such contracts as concluded with customers (redacted if necessary to protect to protect commercial confidentially).
The motion arises from High Court plenary pleadings seeking specific performance of the contract between the plaintiff and the defendant, or in the alternative: damages for breach of contract and ancillary relief arising from the plaintiff's claim that vans, which they supplied to the defendant, were supplied on the basis of a five year lease. The defendant's position is that the vans were supplied to it by the plaintiff on an 'as needed basis', whereby the defendant would lease the vans on a week by week basis and could return the vans to the plaintiff at any stage once they were no longer required.
Plenary proceedings were originally issued on the 21st January, 2009. An amended plenary summons issued on the 28th March, 2011 and an amended statement of claim was delivered on the 28th day March, 2011. A defence and counterclaim was delivered on the 24th October, 2011 and a reply and defence to counterclaim was delivered on the 27th November, 2012.
The defendant wrote to the plaintiff by letter dated 28th November, 2012, seeking voluntary discovery under eleven separate categories. There followed an exchange of correspondence between the parties in respect of the various categories of discovery sought, and it was ultimately agreed that the plaintiff would provide discovery in respect of all eleven categories sought and that category 2 was to be understood in light of the defendant's letter of 12th February, 2013.
An affidavit of discovery in purported compliance with that agreement was sworn on behalf of the plaintiff by Mr. Joe Jackson on 29th June, 2013.
In that affidavit, the deponent agreed on behalf of the plaintiff to make discovery in respect of 11 categories of documents, by reference to the letter of request of the defendant dated the 28th November, 2012. The deponent set out the 11 categories of documents in the body of the affidavit. The court assumes that the 11 categories tendered are the same as those set out in paragraph 4, above. What was set out in that affidavit were categories 1, 2, 3, 4, 5, 6, 7, 8 (twice) 10 and 11. Category 9 was not specifically set out in the affidavit. In paragraph 6 of that affidavit, reference is made by the deponent to 9 categories of documentation.
It is asserted by the defendant that between 29th January, 2014 and 25th January, 2017, the plaintiff took no subsequent steps in furtherance of the proceedings.
On 25th January, 2017, the defendant wrote to the plaintiff, taking issue with the discovery already made by the plaintiff and seeking further and better discovery in respect of category 1, 2, 4, 7, 8, 10 and 11. No issue was taken with the omission of category 9 in the text of the affidavit and the court assumes that it was contended by all sides that category 9 was being included as agreed.
In that letter, the defendant also goes on to seek discovery of three further categories, which it names A1, A2 and A3. In its correspondence, in respect of those categories, the defendant states as follows:
'Arising from this concern and in ease of all parties, we set out below a number of further categories of discovery which are intended to provide a clear breakdown of the various categories of correspondence, which our client had expected to receive by way of discovery from your clients.'
They go on to say in that letter:
'The above is no more than an example of the manner in which the defendant says that the discovery made is incomplete.'
The issues raised in that correspondence and the further three categories of discovery requested are set out in the affidavit of Freda Mahon, on behalf of the defendant, which she swore on 19th August, 2017.
The court understands from the correspondence, the contents of the defendant's affidavit, and what was stated orally in the course of the hearing of this motion, that the three categories, A1, A2 and A3, were not additional categories in the sense of seeking new material, but were rather a further setting out of material which the defendants says it 'expected' to receive on foot of their original request, but did not receive.
In response to that affidavit, a supplemental affidavit of discovery was furnished by the plaintiff on 28th November, 2017.
In that supplemental affidavit, the plaintiffs aver to the fact that further documentation has come to light since the 29th of June, 2013, which falls within the agreed categories of discovery. Further, in respect of the defendant's request for further and better discovery in their affidavit of the 17th of August, 2017, in respect of categories 1, 2, 4, 7, 8, 10 and 11, it was alleged that the plaintiff have in its power, possession or procurement of those documents in respect of categories 10 and 11 only and it claims privilege in respect of documentation in the first schedule, part 2, which it says was generated in contemplation of these proceedings. The plaintiff further says that the three new categories are not relevant or necessary and are declined.
The court proposes at this stage, merely to summarise the relevant legal principles on discovery. They are well known and well established. It is unnecessary to outline and discuss those principles in any detail in this judgment.
The law of discovery is codified to some degree in the Rules of the Superior Courts, Order 31, Rule 12, which dictates that the court must be satisfied that the documents sought are relevant to the issues in the proceedings and that discovery is necessary for disposing fairly of the matter or for saving costs.
The Court of Appeal recently summarised the relevant principles on discovery by reference to a significant body of case law in the area, in O'Brien v. Red Flag Consulting Ltd & Ors [2017] IECA 258 (' Red Flag'). In that case, having referred to a number of the leading cases on discovery in Ireland, including Hannon v. Commissioners of Public Works [2001] IEHC 59, Framus Ltd v. CRH Plc [2004] 2 IR 20,...
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Hireservices (e) Ltd v an Post
...order of Creedon J refusing the appellant’s application for further and better discovery. The judgment was delivered on 29 June 2018, [2018] IEHC 400, and the order was perfected on 28 March 2019. Held by Murray J that the appellant’s application for discovery of three additional categories......