Michael Lowry v Mr. Justice Michael Moriarty
 IEHC 602
THE HIGH COURT
2014/48JR - Costello - High - 17/12/2014 - 2014 32 9127 2014 IEHC 602
RSC O.31 r18
DUBAI BANK LTD v GALADARI (NO 2) 1990 2 All ER 738 1990 1 WLR 731 1989 EWCA CIV J1221-14
RSC O.31 r15
RSC O.31 r17
BBT CHARTED ACCOUNTANTS v LOWRY UNREP MASTER OF THE HIGH COURT 8.11.2013 [TRANSCRIPT NOT AVAILABLE]
ALLIED IRISH BANK v TRACEY (NO 2) UNREP HOGAN 21.3.2013 2013 IEHC 242
KELLY v BYRNE UNREP HOGAN 7.10.2013 2013/28/8257 2013 IEHC 450
CONSTITUTION ART 40.3.2
Civil Practice and Procedure – Notice to Produce – O. 31, r. 17 and r. 18 Rules of the Superior Courts – Discovery
Facts: The applicant sought a judicial review of the respondents” decision to grant the applicant only one third of his costs in respect of the Tribunal of Enquiry into payments made to him. In the Amended Statement of Grounds the applicant pleaded that he incurred significant costs in relation to legal representation for responding to the tribunal”s investigations given the complexity of the matters involved. The respondent served the applicant with a notice to produce documents referred to in the Amended Statement of Grounds and affidavits. These documents had been used in previous proceedings against the applicant. The applicant objected to the notice to produce and declined to comply with it as he said it was misconceived. The respondent sought an order pursuant to O.31, r.18 of the Rules of the Superior Courts or the inherent jurisdiction of the court directing that the applicant produce the documents for inspection. Rule 17 permits the party to whom notice has been given to object to producing any documents provided they state the grounds for their objection. If a party objects to giving inspection then the court can pursuant to Rule 18 make an order for inspection.
Held by Costello J. : The Rules of the Superior Courts clarified that the scope of a notice to produce was different to the scope of discovery. For a notice to produce to succeed the document must be referred to in the proceedings in which the notice to produce is served. The court could refuse to make an order under Rule 18 if the inspection of the document was unnecessary to fairly dispose of the matter or for saving costs. The court was asked to make an order to produce the affidavits by inferring they had been referred to in the Statement of Grounds. Costello J said the court was not empowered to do this and refused the application sought under O. 31, r. 18. Costello J said there was no inherent jurisdiction on the court to direct the applicant to produce for inspection affidavits that had been filed and opened in separate proceedings to which he was a party. The court emphasised that its decision was not to be taken to mean that an order sanctioning the release of the two affidavits could not or ought not to have been made. Furthermore, the respondent was free to seek access to the documents through other legal channels.
JUDGMENT of Ms. Justice Costello delivered the 17th day of December 2014
1. The applicant seeks judicial review of a decision by the respondent dated 31 st October, 2013, to grant to the applicant one third of the costs of representation before the respondent in respect of the Tribunal of Enquiry into payments to Messrs Charles Haughey and Michael Lowry ("The tribunal"). The tribunal was established in 1997 and published its final report in March, 2011.
2. In the Amended Statement of Grounds the applicant pleads that in appearing before the tribunal and in engaging adequate representation in relation to the tribunals of investigation the applicant incurred extremely significant costs in relation to his legal representation and the provision of ancillary financial advices and assistance in responding to the tribunal's investigations. At para. 24 it is pleaded:-
"Those costs have not yet been fully ascertained but it is expected that they will run into many millions of euro having regard in particular to the length of the Tribunal, the considerable assistance afforded by the Applicant to the Tribunal, the complexity of the matters investigated, the centrality of the Applicant to those investigations and his corresponding necessity to be fully involved in all the aspects of the Tribunal's work concerning those Terms of Reference that identified him".
The next three paragraphs deal with the likely extent of his legal costs. At para. 28 he continues:-
"A further sense of the extent of the burden imposed upon the Applicant arising from the Tribunal's investigation of his affairs and his consequential representation costs can be gleaned from the documentation prepared by Mr. O'Connor, the applicant's accountant at the relevant time."
29) In support of claims for fees from the Applicant Mr Denis O'Connor has submitted summaries which he maintains correspond to work undertaken at the request of the Tribunal and/or in response to necessary representational work. These are located at tab 10. As there are legal proceedings in being in relation to Mr Denis O'Connor's claims for fees the Applicant reserves his position. Nonetheless, it can be readily seen that these summaries afford some understanding of the enormous extent of the positive cooperation undertaken by the Applicant in response to the Tribunal's many requests and the very considerable representation demands occasioned by the Tribunal's investigation.
30) Specifically, Mr O'Connor is at present suing the Applicant for non-payment of fees in relation to this role on behalf of the Applicant before the Tribunal and Judgment has been entered in the amount of €625,000 by a decision of the Master of the High Court in or about 08 November 2013 in proceedings entitled BBT Accountants v. Michael Lowry Record No. 2013/1777S. The balance of that firm's claim for fees being €1,090,000 has been remitted to plenary hearing. A copy of the Order of 08 November 2013 is located at tab 11.
3. The applicant sought various categories of discovery from the respondent and issued a notice of motion seeking orders for discovery from the High Court dated 23 rd October, 2014. The matter was heard before McDermott J. and decision on the motion is awaited. The respondent did not seek discovery from the applicant.
4. The respondent served a notice to produce dated 22 nd October, 2014, in the following terms:-
"TAKE NOTICE that the Respondent requires the Applicant to produce for inspection within seven days from the date hereof the following documents which are referred to in the Amended Statement of Grounds and Affidavits delivered on behalf of the Applicant and which the Applicant has hitherto refused to produce: a complete set of the pleadings and affidavits exchanged in the proceedings entitled BBT Accountants v. Michael Lowry (Record Number 2013/1777S)".
5. The applicant objects that the notice to produce is fundamentally misconceived and declined to comply with the notice. Accordingly, the respondent issued a notice of motion dated 13 th November, 2014, seeking an order pursuant to 0. 31, r.18 of the Rules of the Superior Courts or the inherent jurisdiction of the court directing the applicant to produce for inspection the documents he referred to in the notice to produce.
6. A notice to produce is served pursuant to O. 31, r. 15. This provides:-
"Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings, or affidavit or list of documents reference is made to any document to produce such document for the inspection of the party giving such...
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