Ryanair Ltd v Van Zwol

JudgeMr Justice Max Barrett
Judgment Date08 November 2016
Neutral Citation[2016] IEHC 616
Docket Number[2013 No. 11363P]
CourtHigh Court
Date08 November 2016

[2016] IEHC 616


Barrett J.

[2013 No. 11363P]



– AND –



Practice & Procedures – O.31, r.21 of the Rules of the Superior Courts 1986 – Discovery of documents – Striking out the defence – Tort – Publication of defamatory material – Defamation Act, 2009 – Inspection of the documents – Presence of malice – Fair disposal of case.

Facts: The plaintiffs filed the within application to strike out the defence of the defendants for failing to make discovery as per the Rules of the Superior Courts 1986, as amended. The plaintiffs sought an order directing the defendants to make voluntary discovery as per the agreement, and inspection of relevant documents. The plaintiffs asserted that there existed other documents within the agreed categories that the defendants did not produce. The plaintiffs contended that the defendants had failed to comply with the previous agreement to make voluntary discovery.

Mr. Justice Max Barrett refused the reliefs sought by the plaintiffs in the within application. The Court held that since at present the defendants had made discovery adequately, it would not be just to strike out the defendants' defence. The Court found that the defendants had a valid defence of honest opinion and qualified privilege under the Defamation Act, 2009. The Court found that the discovery of the redacted information was irrelevant to the issue of the presence or absence of malice on the parts of the defendants. The Court held that before granting an order for further and better discovery, it must ascertain whether there was a need in real to allow the disclosure of documents that had been withheld and the same could be determined from the pleadings and already discovered documents. The Court found that the plaintiffs had failed to establish that the inspection of un-redacted form of relevant documents were necessary for the fair disposal of the issues in the present case against the claim of confidentiality by the defendants on affidavit.

JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Overview.

The factual background to this judgment has previously been identified by the court in its judgment in Ryanair v. Van Zwol and ors [2016] IEHC 264 and is not repeated here. At this time Ryanair comes to court pursuant to a notice of motion seeking, inter alia, the following reliefs: (1) an order striking out the defence of the defendants for failing to make discovery in accordance with the Rules of the Superior Courts 1986, as amended; (2) an order directing the defendants to make discovery in accordance with the terms of an agreement of 9th May, 2014, to make voluntary discovery; and (3) an order for inspection of certain documents contained in the First Part of Schedule One of the affidavit of discovery.

II. Striking Out of Defence.

It does not appear to the court that an order striking out the defence of defendants is now being sought with especial rigour. It is in any event a relief that must be refused. The substantive issues raised by the plaintiffs in relation to redaction, and the suggestion that further documents may exist that fall within the agreed categories, are insufficient to ground a strike-out application.


In Mercantile Credit Company of Ireland Ltd. v. Heelan [1998] 1 I.R. 81, Hamilton C.J., having set out the substance of O. 31, r.21 of the Rules of the Superior Courts, observed as follows, at 85:

‘The power given by the said rule to the court to strike out the defence of a defendant who has failed to comply with an order for discovery is discretionary and not obligatory, and should not be exercised unless the court is satisfied that the defendant is endeavouring to avoid giving the discovery, and not where the omission or neglect to comply with the order is not a culpable one, for instance, if it is due to loss of memory or illness.

It should only be made where there is wilful default or negligence on the part of the defendant and then only upon application to the court for an order to that effect.

The powers of the court to secure compliance with the rules and orders of the court relating to discovery should not be exercised so as to punish a party for failure to comply with an order for discovery within the time limited by the order.’


There has not been any wilful default or negligence on the part of the defendants in this case. They have sought to comply fully with their discovery obligations, not least by arranging for the filing of a supplemental affidavit of discovery to address such issues as were raised by the plaintiffs. Errors have arisen in the process, it is true, but, as the court noted at para. 11 of its judgment of last May ‘ In any human endeavour, error is to be expected. Even the most scrupulous of discovery processes - and no little scruple is required…in the discovery process -likely involve some element of in-built error. Discovery is a means to an end, not an exercise in perfection.’ Certainly the court sees nothing in what has occurred in the within proceedings that would justify its striking out the defendants' defence at this time.


In Campion v. Wat [2013] IEHC 45, Ryan J. observed as follows, at 4:

‘The requirement under O. 31, r.12 is for the party to make an affidavit detailing documents that are or were in his possession or power relating to any matter in question in the case. An order may not be made if the Court is of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. The jurisdiction to strike out a claim or a defence for failure to make discovery exists for the purpose of enforcing and ensuring compliance with the court's orders. Discovery is ordered when it is necessary to do so for the fair disposal of the action.

But once discovery has actually been made, it is not generally the function of this Court to make determinations of fact in order to decide whether the claim should be struck out. It would not be possible on the basis of the affidavits alone for this Court to do that. It would obviously be necessary to have a hearing at which the plaintiff was cross-examined….

Since the plaintiff has now made discovery in an appropriate form, I do not think that it is for me to determine on the basis of probability or improbably whether his explanations are correct or not. Neither am I able to contrast the pleadings to date with the contents of the discovery affidavit or affidavits in order to determine the truth. In the circumstances, it is not appropriate for me to make an order dismissing the plaintiff's case and it would not be just to do so.’


As the defendants in this case have now addressed the various issues raised by the plaintiffs in relation to discovery, i.e. since the defendants have now made discovery in an adequate form, it is not appropriate for the court to make an order dismissing the defendants' defence and it would not be just to do so. There is simply no basis on the facts of these proceedings for the court to invoke what is, in any event, itsquite limited jurisdiction to strike out pleadings for failure to make discovery.

III. Further and Better Discovery.

The second requested relief is a form of further and better discovery, the order sought being an order to require the defendants to comply with their previous agreement to make voluntary discovery. The principal authority in this regard remains the now long-ago decision of the Supreme Court in Sterling-Winthrop Group Ltd. v. Farbenfabriken Bayer A.G. [1967] I.R. 97, in which Kenny J. giving judgment on the circumstances in which a court will make an order requiring a party who/which has previously sworn an affidavit of discovery to swear a further such affidavit, indicated as follows, at 100:

‘Such an order will not be made when the application is based solely on an affidavit alleging that the other party has documents in his possession relevant to the action which have not been disclosed by the first affidavit. The Court will, however, order a further affidavit of documents when it is satisfied (a) from the pleadings, (b) from the affidavit of discovery already filed, (c) from the documents referred to in the affidavit of discovery, or (d) from an admission by the party who has made the affidavit of discovery that the party against whom the order is sought has other documents in his possession relating to the issues in the action which have not been disclosed by the first affidavit. The Court will also order a further affidavit when there are grounds, derived from the documents discovered, for suspecting that there are other relevant documents in the possession of the party who has made the affidavit or where there are reasonable grounds for believing that the person making the affidavit of discovery has misunderstood the issues in the case and has, in consequence, omitted documents from it.’


In short, it does not suffice for an order for further and better discovery to issue that a plaintiff comes to court and says “I don't believe that my opponents have given me all the documents”. Rather, it is necessary to identify from the pleadings, or from documents which are discovered, or from the affidavit of discovery, something which suggests that there is further documentation which has been withheld. That type of circumstance does not present here. There have been a number of rounds of discovery, it is true, but such issues as have been raised have been dealt with by subsequent affidavits. And yet again, in this regard, the court would refer to the above-quoted observation in its judgment of last May. The fact that a mistake has been made or a further document has come to light does not of itself(a) give grounds to make a further order...

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1 cases
  • Ryanair Ltd v Van Zwol
    • Ireland
    • High Court
    • 13 December 2017
    ...foot of which written judgments of the Court were handed down. See Ryanair Ltd, and another v. Van Zwol and Others [2016] IEHC 264 and [2016] IEHC 616. Four affidavits of discovery have been sworn on behalf of the Defendants, the most recent of which was on the 6th November, 2017, shortly......

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