Holloway v Belenos Publications Ltd (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 14 June 1988
• Neutral Citation: 1988 WJSC-HC 2324
• Docket Number: 9002P/1985,[1985 No. 9002P]
• Court: High Court
• Date: 14 June 1988

HOLLOWAY v. BELENOS PUBLICATIONS LTD & ORS

JOSEPH HOLLOWAY

PLAINTIFF

AND

BELENOS PUBLICATIONS LIMITED. & ORS.

DEFENDANTS

1988 WJSC-HC 2324

9002P/1985

THE HIGH COURT

Synopsis:

WORDS AND PHRASES

"Practice and procedure"

Rules of court - Rules committee - Authority - Discovery of documents - Procedure originally confined to parties to action - Procedure extended so as to authorise an order directing a stranger to an action to discover documents in his possession and relevant to an issue in the action - Extension made ~intra vires~ Rules Committee of the High Court - ~See~ Practice, documents - (1985/9002 P - Barron J. - 14/6/88) - [1988] I.R. 494

|Holloway v. Belenos Publications Ltd.|

PRACTICE

Documents

Discovery - Stranger - Possession - Rules of Court - Validity - Whether rule of court made ~ultra vires~ Rules Committee - Libel action - Defendant's motion - Authorisation conferred by power to make rules relating to practice and procedure - The plaintiff claimed damages from the defendants for libel - The defendants applied in the High Court for an order directing the Minister for Industry and Commerce and the Minister for Energy to make discovery of the documents in their possession or procurement which were relevant to the issues raised in the plaintiff's action - Order 31, r. 29, states (inter alia) that the court, where it appears that a stranger to an action is likely to have, or to have had, in his possession or power any documents which are relevant to an issue arising in that action, may direct the stranger to make discovery of such documents - The application was opposed on the ground that the said rule had been made ~ultra vires~ the Rules Committee of the High Court - Held that the regulation of the discovery of documents, effected by the impugned rule, is the regulation of the exercise of the inherent jurisdiction of the High Court and falls within the phrase "practice and procedure" in s. 36 of the Act of 1924 - Held, accordingly, that the provisions of order 31, r. 29, of the Rules of 1986 were made ~intra vires~ the Rules Committee of the High Court: ~The State (O'Flaherty) v. O Floinn~ [1954] I.R. 295 and ~Rainey v. Delap~ (Supreme Court - 8/3/88) considered - This decision appears to be a sequel to ~Holloway v. Belenos Publications~ [1987] ILRM 790 - Rules of the Superior Courts, 1986, order 31, r. 29 - Courts of Justice Act, 1924, s. 36 - (1985/9002 P - Barron J. - 14/6/88) - [1988] I.R. 494 1988 ILRM 685

|Holloway v. Belenos Publications Ltd.|

Citations:

RSC O.31 r29

HOLLOWAY V BELENOS PUBLICATIONS LTD 1987 ILRM 790

RSC O.31 r12

COURTS OF JUSTICE ACT 1924 S36

O'FLAHERTY, STATE V O'FLOINN 1954 IR 295

RAINEY V DELAP 1989 IR 470

WALSH STATUTES RELATING TO THE DUTIES OF JUSTICES OF THE PEACE 1850 72

1 Judgment of Mr. Justice Barrondelivered the 14th day of June 1988.

2 This is an application in an action for defamation in respect of two articles concerning the Plaintiff published in the magazine "Business and Finance". The Plaintiff is and was at all material times Secretary of the Department of Energy and the article complained of relates to the performance by him of the duties of his office. The Defendants seek discovery under the provisions of Order 31, Rule 29 of the Rules of the Superior Courts 1986 of certain specified documents against the Minister for Industry and Commerce and the Minister for Energy, neither of whom, is a party to the proceedings. The sole issue which arises before me is whether or not the Superior Courts Rules Committee had power to make this rule. The rule breaks new ground by allowing for the first time discovery both of facts and documents to be directed against a person who is not a party to the cause or matter in which the Order ismade.

3 An application for discovery under this rule has already come before Costello, J. in these proceedings: see Holloway .v. BelenosPublications 1987 I.L.R.M. 790. The power of the Superior Courts Rules Committee to make the rule was raised on such application. The issue was not decided, however, since the application was decided on other grounds.

4 Order 31 Rule 29 is as follows:

"Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may be leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents. The provisions of this Order shall apply mutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99."

5 The issue before me arises upon an application fordiscovery of documents and I propose therefore to confine my consideration of...