Murphy v J. Donohoe Ltd (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Johnson
• Judgment Date: 03 March 1995
• Neutral Citation: 1995 WJSC-HC 2912
• Docket Number: 12103p/1989
• Court: High Court
• Date: 03 March 1995

1995 WJSC-HC 2912

THE HIGH COURT

12103p/1989

12104p/1989

MURPHY v. J DONOGHUE LTD

BETWEEN

LENA MARIE MURPHY (A MINOR) SUING BY HIS MOTHER AND NEXTFRIEND MARGARET MURPHY

PLAINTIFF

AND

J. DONOGHUE LIMITED, FIAT AUTO (IRELAND) LIMITED,PROCTECTACAR CONTRACT SERVICING LIMITED, JAMES MURPHY FIAT AUTO SPA ANDJ DONOHOE (MOTORS) LIMITED

DEFENDANTS

BETWEEN

JAMES JOSEPH MURPHY (A MINOR) SUING BY HIS MOTHER AND NEXTFRIEND MARGARET MURPHY

PLAINTIFF

AND

J. DONOGHUE LIMITED FIAT AUTO (IRELAND) LIMITED PROTECTACARCONTRACT SERVICING LIMITED JAMES MURPHY FIAT AUTO SPA AND J DONOHOE(MOTORS) LIMITED

DEFENDANTS

Citations:

RSC O.32 r21

HALSBURYS LAWS OF ENGLAND 4ED V13 PARAS 38, 39 & 40

LOGICROSE LTD V SOUTHEND UNITED FOOTBALL CLUB LTD 1988 1 WLR 1256

HUSBANDS OF MARCHWOOD LTD V DRUMMOND WALKER DEVELOPMENTS LTD 1975 2 AER 30

RSC O.24 r16

Synopsis:

PRACTICE

Documents

Discovery - Sufficiency - Party - Obligations - Discharge - Failure - Remedy - Principles applicable - Defence struck out - Rules of the Superior Courts, 1986, order 31, r. 21 - (1989/12103 P - Johnson J. - 3/3/95) - [1996] 1 I.R. 123 - [1995] 2 ILRM 509

|Murphy v. J. Donoghue Ltd.|

1 Judgment of the Honourable Mr. Justice Johnsondelivered the 3rd day of March, 1995.

2 This case arises out of a Motion brought by the fourth named Defendant against the second and fifth named Defendants pursuant to the provisions of the Rules of the Superior Courts, Order 32, Rule 21, for an Order that the defence of the second and fifth named Defendants in this matter be struck out. The Rule reads as follows:

"If any party fails to comply with any Order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a Plaintiff, be liable to have his action dismissed for want of prosecution, and if a Defendant, to have his defence, if any, struck out, and be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an Order to that effect, and an Order may be madeaccordingly."

3 An original Order of Discovery made in a somewhat limited fashion was made on the 22nd March, 1991. The fifth and sixth named Defendants appear to have been joined in this case in December, 1993 and an Order for Discovery was made by Mr. Justice Lynch on the 8th March, 1994. The application sought for discovery was resisted by Counsel for the second and fifth named Defendants, however, Mr. Justice Lynch made the Order in the following terms:-

"It is ordered that the second and fifth named Defendants respectively do within eight weeks from the date hereof make discovery on oath of the documents which are or have been in their respectivepossessionor power of complaints received by the second and fifth named Defendants in relation to fires which have occurred in the Fiat model Mirafiori between the 1st January, 1979 and the 23rd June, 1988 which have been reported to the second named Defendant, and the parent companyworldwide."

4 An Application was brought before me on the 10th May, 1994 that the defence in this case be stayed and be struck out for failure to comply with the terms of the discovery. On that occasion I ordered:-

5 2 "(1) that the matters alleged in submissions of Counsel for the Defendant be put on Affidavit, such Affidavit to be filed within four weeks from the date hereof, and,

6 (2) that the fifth named Defendant do make further and better discovery of the matters set forth in the Order herein of the 8th March, 1994. Such Affidavit to be sworn by the Managing Director of the fifth Defendant and to be filed within eight weeks from the date hereof.

7 (3) that the costs of the application be reserved."

8 The matter then came before me on the 27th July, 1994 when it was agreed that cross-examination of the deponents would be required and it was then adjourned to the 11th October, 1994 when the hearing took place of the Application and in the course of which the deponents for the second and fifth named Defendants were cross-examined.

9 In dealing with this matter I think it is relevant to refer to what precisely is discovery and what is intended bydiscovery. I quote from Halsbury the last Edition, Volume 13, paragraphs 38, 39 and 40. paragraph 38:-

"A document relates to the matters in question in the action if it contains information which may (not which must) either directly or indirectly enable the party requiring the Discovery either to advance his own case or to damage the case of his adversary, or which may fairly lead to a train of inquiry which may have either of those two consequences. Documents relate to matters in question in any action whether they are capable of being given in evidence or not, so long as they are likely to throw light on the case. The expression "matter in question" means a question or issue in dispute in the action not the thing about which such dispute arises; thus in an action to recover possession of land it means the plaintiff's alleged title and not the land. A document may be relevant by reason of its character, for example, that it is a document of a particular type, or by reason of its contents. Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue then discovery on that issue is limited to the matter raised in the particulars. Discovery will not be ordered in respect of an irrelevant allegation in the pleadings, which, even if substantiated, could not affect the result of the action nor in respect of an allegation not made in the pleadings or particulars nor will discovery be allowed to enable a party to fish for witnesses or for a new case, that is, toenable him to frame a new case. Each case must be considered according to the issues raised but, where there are numerous documents of slight relevance, it would be oppressive to produce them all, some limitation may be imposed."

10 Paragraph 39:-

"Documents in possession, custody or power of party. The existence of all documents must be disclosed which the party giving the discovery has or has had in his possession, custody or power. For this purpose, "possession" means the physical or corporeal holding of the document pursuant to the right of its possession, as in the case of an agent or bailee; custody means the mere actual physical or corporeal holding of a document, regardless of the right to its possession as in the case of a servant or employee; and, "power" means an enforceable right to inspect it or to obtain possession or control of the document from the person who ordinarily has it in fact. The requirements of the rules that the documents to be disclosed must be or have been "in the possession, custody or power" of the party making the discovery are disjunctive in their operation so that disclosure must be of all documents which are or have been in the possession or the custody or the power of that party; and equally only those documents can properly be withheld from disclosure which are not and have not been in the possession, custody or power of that party.

Accordingly, all documents must be included of whichthe party giving discovery has, or has had, possession or custody even if he had, or has had, no property at all in them; but documents which never were in his possession or custody need not be included unless he had some kind of property in them. Documents which are or were in the possession or custody of the party's agent must be included provided the agent held them in his capacity as agent. Documents which are or have been in the party's possession jointly with or as agent for another have also to be included in the list. Careful search must be made for all relevant documents...