Hireservices (e) Ltd v an Post

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Murray
• Judgment Date: 29 April 2020
• Neutral Citation: [2020] IECA 120
• Date: 29 April 2020
• Docket Number: Record Number 2019/157

Between:

HIRESERVICES E.

AND

HIRESERVICES I LIMITED

PLAINTIFFS/RESPONDENTS

- AND -

AN POST

DEFENDANT/APPELLANT

[2020] IECA 120

Birmingham P.

Faherty J.

Murray J.

Record Number 2019/157

High Court Record Number 2009/515P

THE COURT OF APPEAL

CIVIL

Discovery – Specific performance – Contract – Appellant seeking further and better discovery – Whether the appellant had identified classes of documents which fell within the discovery categories

Facts: The respondents, Hireservices E and Hireservices I Ltd, claimed specific performance of an alleged contract for the hire of motor vans, together with damages for breach of that agreement. Their essential case was that the appellant, An Post, having agreed to hire vehicles from the respondents for a period of five years, breached that contract by ceasing to make the agreed rental payments and by seeking to return the vehicles before that agreed period had concluded. The appellant appealed to the Court of Appeal against a judgment and 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 of documentation would be refused on the basis that, on the appellant’s own case, these documents were within the discovery categories which had already been agreed; insofar as they were not, the appellant had not disclosed any legal basis for new discovery being ordered at this point in the proceedings. Murray J held that the respondents’ affidavits of discovery were both deficient insofar as they ought to have, but did not, list individually the documents over which privilege was claimed. Murray J held that the appellant had identified classes of documents which it said existed or must have existed and which fell within the discovery categories. The respondents had averred in response that they did not have those documents. They had also averred that they never did. Having regard to the fact that a further affidavit of discovery must be sworn in any event to deal with the issue of privilege, having regard to the failure of the respondents to properly address in their first affidavit the issue of what documents they previously had but no longer have that fall within the discovery agreement, taking account of the manner in which this issue was addressed in the second affidavit and the absence of any averment that any investigation had been undertaken by the respondents to address whether documents of the kind referred to by the appellant’s solicitor have existed in the past but are no longer in existence, combined with the absence of any clear explanation in the affidavits the respondents had delivered in response to this motion, Murray J believed that it was appropriate that the respondents deliver a single composite affidavit of discovery in full compliance in all respects with the Rules of the Superior Courts.

Murray J held that he would allow this appeal and in substitution for the Order of the High Court refusing the application, would make an Order requiring the respondents to swear a single composite affidavit of discovery making discovery of all documents in their possession power or procurement within the categories contained in the letter from the appellant’s solicitors of 28 November 2012 subject to a clarification as to the scope of category two as referred to in the letter dated 12 February 2013, that affidavit of discovery to properly list and schedule all documents over which the respondents claim privilege, and otherwise to comply with the provisions of the Rules of the Superior Courts. In this regard, Murray J held that the respondents must not merely swear an affidavit of discovery which properly addresses the contents of the second schedule, but must explain, either in that affidavit or in a separate affidavit, the precise steps they had taken to ascertain what documents within the categories the subject of this application, the respondents once had but no longer have.

Appeal allowed.

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

Background

1 This is an appeal against a judgment and 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 perfected on 28 March 2019.

2 The respondents’ claim is for specific performance of an alleged contract for the hire of motor vans, together with damages for breach of that agreement. Their essential case is that the appellant having agreed to hire vehicles from the respondents for a period of five years, breached that contract by ceasing to make the agreed rental payments and by seeking to return the vehicles before that agreed period had concluded.

3 The agreement is alleged to have been entered into with the first named respondent between July and December 2006 for the hire of twenty vehicles, being followed by a further agreement in early 2007 for the hire of another twenty vans. The business of the first named respondent was assigned to the second named respondent in October 2007. The breach of the alleged contract is said to have taken place in March 2008 when, it is claimed, the appellant indicated that the agreements did not comply with its purchasing arrangements. The appellant ceased to make rental payments in July 2008.

4 The plenary summons issued in January 2009 and a statement of claim was delivered in May of that year. The second named respondent was joined to the proceedings in March 2011 and an amended statement of claim delivered shortly thereafter. In October 2011, the appellant delivered a defence and counterclaim. This pleads that the vans were furnished to the appellant on foot of a framework agreement made orally between the parties in June 2006. The terms of that alleged framework agreement, as pleaded, were that the first named respondent agreed to supply for short term hire vehicles at a spot rate of €80 per week, the number of vehicles supplied to be on an ‘as needed’ basis. It pleads that the first named respondent was notified of the appellant’s intention to return the vehicles in June 2006 but that the first named respondent wrongfully refused to accept delivery of the vehicles until November 2009. The appellant says that in consequence of what it alleges was the wrongful refusal of the respondents to accept return of the vehicles, it incurred costs for storage and security. A reply and defence to counterclaim was delivered in November 2012.

The application for further and better discovery:

5 By letter dated 28 November 2012 the appellant sought voluntary discovery from the respondents. Twelve categories of documents were identified. By letter dated 12 February 2013 the respondents agreed to make the discovery requested, subject to a clarification contained there as to the scope of category two. On 29 June 2013, an affidavit of discovery was sworn on behalf of the respondents by Joe Jackson, a director of the appellants. The appellant says that from that point to 25 January 2017, the respondents took no further steps to prosecute their proceedings.

6 The application giving rise to this appeal originated with a letter sent by the appellant on 25 January 2017. In that letter, the appellant contended (a) that the respondents must have or have had documents falling within five identified categories as described in the agreement as to discovery but had failed to discover these documents and (b) seeking three additional categories of discovery. The appellant maintains that the latter categories were not new, but that they merely set out material which the appellant says it expected the respondents to have discovered on foot of the original agreement between the parties. On 31 May, the respondents’ solicitors wrote expressing surprise at the time the appellant had taken to raise objection to the affidavit of discovery. The letter did not engage with the substance of the issues raised by the appellant.

7 The motion for further and better discovery was issued on 23 August 2017. It sought orders striking out the respondents’ claim for falling to make discovery, orders for further and better discovery, and in the alternative orders for further discovery. The motion was grounded on an affidavit sworn by Ms. Mahon, the appellant’s solicitor. On 28 November 2017, and while this motion was pending, the respondents delivered a supplemental affidavit of discovery. That affidavit of discovery comprises the only response of the respondents to the various complaints made in Ms. Mahon’s affidavit. It does not engage in any way with the contentions advanced by Ms. Mahon, instead discovering a number of documents under categories 10 and 11.

8 In rejecting the application, Creedon J. referred to the judgment of Kenny J. in Sterling Winthorp Group Ltd. v. Farbenfabriken Bayer AG [1967] IR 97, concluding that the plaintiff had complied with the agreement reached between the parties in respect of discovery and that the defendant had not met the test set out in that case.

9 The appellants’ complaints as argued before this Court were threefold. First, they sought orders directing the respondents to make discovery of the three additional categories. Second, the appellant complains of a failure by the respondents to properly itemise the documents in respect of which they are claiming privilege. Third, it was claimed that the respondents failed to make full discovery of all documents in their possession or power within categories 1, 2, 4, 7 and 10 as agreed.

Three additional categories.

10 The three additional categories of discovery sought in the notice of motion are as follows:

(i) Documents evidencing correspondence, communication and/or discussion between the respondents in respect of...