Roussel v Farchepro Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Peter Kelly |
| Judgment Date | 01 January 2000 |
| Neutral Citation | [1999] IEHC 78 |
| Docket Number | [1996 No. 4958P] |
| Court | High Court |
| Date | 01 January 2000 |
[1999] IEHC 78
THE HIGH COURT
BETWEEN
AND
Citations:
AMBIORIX LTD V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277
HOME OFFICE V HARMAN 1983 1 AC 280
CREST HOMES PLC V MARKS 1987 2 AER 1074, 1987 1 AC 829
MEGA LEASING (UK) LTD V BARRETT 1993 ILRM 497
JADE ENGINEERING CONVENTRY LTD V ANTIFERENCE WINDOWS SYSTEMS LTD 1996 FSR 461
Synopsis
Practice and Procedure
Procedure; discovery; use of documents obtained on foot of discovery orders; documents discovered by defendant; two applications brought seeking leave to use the documents in proceedings pending before Courts in Switzerland and Spain; all proceedings related to same or similar patents; whether Court has jurisdiction to modify implied undertaking that documents would only be used for the proper conduct of the action; whether special circumstances existed justifying the making of such an order; whether risk of injustice to plaintiff if documents are not disclosed Held: Order made permitting use of documents for Spanish Courts but refusing documents for Swiss Court Roussel v. Farchepro Ltd. - High Court: Peter Kelly J. (ex tempore) - 14/01/1999 - [1999] 3 IR 567 - [2000] 1 ILRM 321
The contention that the Court was prohibited from making an order varying the implied undertaking that documents discovered will not be used except for the proper conduct of the particular action in which the documents are discovered was not supported by case law or common sense. However, in making such an order the Court should examine whether special circumstances exist justifying such an order and also whether any injustice would be caused to the party making discovery. The High Court so held in permitting the use of the documents in the Spanish proceedings but refusing to vary the implied undertaking in respect of the Swiss proceedings.
EXTEMPORE JUDGMENT of Mr. Justice Peter Kellydelivered on the 14th day of January 1999
There are before the Court two applications, each brought by the Plaintiff, for leave to use documents discovered by the Defendant Madex in proceedings pending before the Courts of the Kingdom of Spain and ofSwitzerland.
It is common case that these documents, having been disclosed on foot of discovery orders, are subject to an implied undertaking on the part of the Solicitors to the Court, that the documents will not be used nor be allowed to be used for any purpose other than the proper conduct of this action. In support of that proposition, see the dictum of Finlay C.J. in Ambiorix Limited -v- The Minister for the Environment. No.1, [1992] 1 I.R. 277 where he says, and I quote:-
"As a matter of general principle, of course, a party obtaining the production of documents by discovery in an action is prohibited by law from making any use of any description of such documents or the information contained in them otherwise than for the purpose of the action. To go outside that prohibition is to commit contempt of Court."
And see also the decision of the House of Lords in HomeOffice -v- Harman, [1983] 1 AC 280 and in particular, the statement from the speech of Lord Diplock which appears at page 284 and I quote:-
"The implied undertaking is given by the Solicitor personally to the Court of which he is an officer, that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else and any breach of that implied undertaking is a contempt of Court by the Solicitorhimself."
The matter is further addressed by the House of Lords in the case of Crest Homes Plc -v- Marks, [1987] 2 All ER 1074 and in particular, the statement of Lord Oliver in the course of his speech which is to be found at page 1583 in the All England Reports version at 1987, 2 All England, beginning at 1574 and the passage is at 1583 where he reiterates that principle. Insofar as the obligation not to use the material disclosed on disco very is concerned, I am satisfied that the law in this jurisdiction and the law in England and Wales is the same.
The Plaintiff here seeks to have that implied undertaking modified so as to permit the use of a small number of the documents disclosed in litigation which is pending in the Courts of the two jurisdictions which I have already mentioned.
The first matter which I must address in this ruling relates to my jurisdiction to entertain an application of this sort at all. Mr. Gordon, on behalf of the Defendant Madex, says that there is no such jurisdiction and that the implied undertaking which attaches to all of the discovered documents may not be released or modified in anycircumstances.
An absolute prohibition of this type is a rare thing to encounter in law. Nonetheless, I am satisfied that 1 will have to give effect to such an absolute prohibition if
(a) I am obliged so to do on foot of a binding decision of the Supreme Court,
(b) I am persuaded that a persuasive decision to that effect from other Courts represents the law in this state, or
(c) absent such persuasive authority which I regard as sound, such a prohibition is itself sound in law.
I am going to take each of these three propositions in turn.
First, the contention that there is a binding decision of the Supreme Court which I must loyally follow. The basis for that contention is to be found in two dicta or two Judges of the Supreme Court in two different cases. The first is the passage which I have already cited from the judgment of Finlay C.J. in Ambiorix -v- The Minister for the Environment, No. 1 and I don't think that it is necessary for me to repeat that since the passage has already been recited by me in full earlier in the course of this ruling.
The second is a statement which appears in the judgment of O'Flaherty J. in the case of Mega Leasing (UK) Limited & Others -v- Vincent Barrett & Others, [1993] ILRM 497 and is asfollows:-
"It is clear that to bring an action for discovery so as to facilitate the initiation of proceedings against the same defendants in a more substantial action would be to allow discovery sought for one purpose to be used for other purposes and that is notpermissible"
In my view, neither of those two quotations constitute a binding authority on me. The statement from the judgment of Finlay C.J. in Ambiorix is clearly one which is made obiter. It is not made in the context of a dispute such as the one in suit here and it seems to me to do no more than state a general proposition but without addressing or being called upon to address the precise nature of the dispute which is in issue here.
Similarly, I take the view that the statement from the judgment of O'Flaherty J. is also made obiter. But in any event, even if it is not, it has no relevance, in my view, to the matter in dispute here since it seems to me to address a case where an action for discovery simpliciter is brought. That is not the case here, because it's quite clear that there are substantive issues which fall to be determined between Plaintiff and Defendant.
I therefore have come to the conclusion that there is no binding authority which compels me to hold that I am devoid of jurisdiction to modify or vary the implied undertaking which exists concerning the documents which have been disclosed on discovery.
I turn, therefore, to consider the second matter which seems to me might give rise to my holding that there is such an absolute prohibition on variation or modification of the undertaking.
Are there persuasive authorities which convince me that Mr. Gordon's proposition is sound?
Having reviewed the case law which has been produced here in argument before me, it is clear that there is no single case which is of persuasive authority which supports Mr. Gordon. In fact, all of the persuasive decisions are against him.
Insofar as the Courts of England and Wales are concerned, one can commence consideration of the authorities there by reference to the decision of the House of Lords in Crest Homes Plc -v-Marks [1987] 1 AC 829 and the speech of Lord Oliver makes it abundantly clear that there is a jurisdiction in the Courts of England and Wales to permit of a modification or variation of the undertaking and all of the case law which has been cited subsequent to that decision of the House of Lords is to like effect.
Insofar as this jurisdiction is concerned, nobody has been able to cite a written judgment dealing with this topic, but I cannot...
To continue reading
Request your trial
-
Breslin and Others v McKenna and Others
...2 AC 177 MAHON v RAHN 1998 QB 424 CONSTITUTION ART 34.1 CORK PLASTICS v INEOS COMPOUNDS (UK) LTD 2008 1 ILRM 174 ROUSSEL v FARCHEPRO LTD 1999 3 IR 567 DPP v MURPHY 2005 2 IR 125 FREEDOM OF INFORMATION ACT 1997 S46 COURTS OF JUSTICE ACT 1924 S33 CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) AC......
-
The Director of Corporate Enforcement v Independent News and Media Plc
...contended that the circumstances justified the making of the order. They said that the conditions identified in Roussel v Farchepro Ltd [1999] 3 IR 567 had been met. They accepted that those principles applied by analogy to the disclosure which had been made. They pointed to a number of fea......
-
EH v Information Commissioner
...[1998] 3 I.R. 399. Greencore Group plc. v. Murphy [1995] 3 I.R. 520; [1996] 1 I.L.R.M. 210. Hoechst Marion Roussel v. Farchepro Ltd. [1999] 3 I.R. 567; [2000] 1 I.L.R.M. 321. Home Office v. Harman [1983] 1 A.C. 280; [1982] 2 W.L.R. 338; [1982] 2 All E.R. 532. State (Keegan) v. Stardust Comp......
-
McKillen v Information Commissioner
...were alleged to arise, the appellant could apply to the court to be released from his undertaking as in Roussel v. Farchepro Ltd [1999] 3 I.R. 567. 51 Any alleged unfairness could not be a basis for the court to decline to apply EH, which the court was obliged to follow unless satisfied tha......