The Minister for Education and Skills v Western Building Systems Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 30 November 2020 |
| Neutral Citation | [2020] IEHC 636 |
| Docket Number | [2018/7984 P] |
| Court | High Court |
| Date | 30 November 2020 |
[2020] IEHC 636
Brian O'Moore
[2018/7984 P]
THE HIGH COURT
Discovery – Damages – Negligence – Defendant seeking further and better discovery against the plaintiff – Whether documents either referred to, or attached with, the discovered documents must themselves be discovered
Facts: The plaintiff, the Minister for Education and Skills, claimed damages against the defendant, Western Building Systems Ltd, arising from the manner in which Western constructed a building at Ardgillan Community College in County Dublin. The claim was grounded on allegations of breach of contract, negligence, breach of duty, negligent misstatement and/or misrepresentation on the part of Western. As well as denying almost all of the allegations contained in the Statement of Claim, Western pleaded that any defects in the school at Ardgillan were caused by the negligence of the Minister (including her agents) or alternatively by third parties. Western sought further and better discovery against the Minister. Counsel for Western identified two complaints about the Minister’s discovery. Firstly, Western was concerned that the Minister (in making discovery under Category 1) had not interrogated her own records but rather had relied upon a separate entity (KSN) as the only source of documents. The second outstanding complaint by Western related to eighteen individual documents discovered by the Minister. Western said that documents either referred to, or attached with, the discovered documents must themselves be discovered.
Held by O’Moore J that, regarding the first issue remaining in Western’s motion, he would direct that a supplemental affidavit be sworn on behalf of the Minister.
O’Moore J held that, regarding the second complaint, having considered separately the documents which Western claimed should be discovered, he had concluded as follows: Item 1 - the “as built” drawings should be discovered and the fact that the drawings may already be in the power or possession of Western did not relieve the Minister of responsibility to discover them; Item 2 - this attachment should be discovered, for the reasons set out by Western’s solicitors (Caytons); Item 3 - no further discovery was required; Item 4 - he did not have enough evidence from Western to find that this item fell within the agreed discovery; Item 5 - for the reasons given by Caytons, the Minister should discover sub items 1, 3 and 4; Item 6 - notes of the relevant part of this meeting appeared to fall within Category 10, and (if they ever existed) should be discovered; Item 7 - this attachment appeared to fall within Category 10, and should be discovered; Item 8 - Western had not established that the Minister was in breach of her discovery obligations in respect of this item; Item 9 - Western had not established any “want of discovery” on her part; Item 10 - for the reasons identified by Caytons, he would order discovery of these two sets of attachments; Item 11 - this was clearly not still in issue, given the response of the Minister’s solicitors (the CSSO); Item 12 - on balance these documents should be discovered, in the absence of any detailed argument to the contrary by the Minister; Item 13 - both documents appeared to relate to remediation of Ardgillan, would therefore be caught by Category 10 and should be discovered; Item 14 - he would direct discovery of the documents listed at numbers 1, 2, 5 and 7; Item 15 - he would direct discovery of these two documents for the reasons given by Caytons; Item 16 - the Barret Mahony report for Ardgillan should be discovered; Item 17 - if there was a minute of any meeting of the 9th of October 2018, the relevant part should be discovered; Item 18 - for the reasons given by Caytons, the documents sought at (1) and (3) are discoverable inasmuch as they relate to Ardgillan in the case of class (1).
Discovery ordered.
In these proceedings the Plaintiff (‘the Minister’) claims damages against the Defendant (‘Western’) arising from the manner in which Western constructed a building at Ardgillan Community College in County Dublin. The claim is grounded on allegations of breach of contract, negligence, breach of duty, negligent misstatement and/or misrepresentation on the part of Western. A full Defence has been delivered on behalf of Western; as well as denying almost all of the allegations contained in the Statement of Claim, Western pleads that any defects in the school at Ardgillan were caused by the negligence of the Minister (including her agents) or alternatively by third parties. Western has joined a large number of persons as third parties to this action.
This action is one of a series of claims taken by the Minister against Western; each action, as far as I am aware, relates to a different school. While every claim is important, taken together the disputes between the Minister and Western constitute a very significant class of litigation before the High Court.
The current motion is one in which Western seeks further and better discovery against the Minister. It is worthwhile to set out how this application came into being, and how it evolved after it was issued.
While these proceedings began in September 2018, the parties agreed discovery only in January 2020; the terms of the discovery to be made by the Minister and by Western are set out in a letter of the 20th of January from Western's solicitors (Caytons).
The Minister's affidavit of discovery was sworn (by Richard Dolan) on the 20th of May 2020, and made available to Caytons on the 25th of May.
On the 11th of June, Caytons wrote suggesting that all issues in this action (including the third party claims) should be tried together. In so doing, it was proposed that “any letters complaining of Discovery to be received by late June 2020 […]”. It was also suggested that, following an exchange of correspondence, any motion “in relation to want of further discovery” would be issued and served by the end of July. Of course, it was open to Western to issue any motion for what I might prosaically call further and better discovery when it was ready to do so; it did not require any schedule for issuing such motions to be agreed with the Minister.
No such correspondence issued from Caytons by the end of June, or by the end of July. On the 25th of August, Caytons stated that ‘it shall be necessary for both parties, should they so wish, to issue letters addressing any “wants” or shortcomings in the discovery provided.’ Caytons proposed that there would be an exchange of letters identifying such “wants” on the 7th of September 2020, with motions to be issued by the 30th of September. The Minister's solicitors (the CSSO) responded the following day denying any “want” in her discovery, and asking Caytons to “revert by return” if Western had any difficulty with the discovery made.
On the 1st of September, Western's motion seeking a unitary trial of all issues between all parties could not proceed because of technical problems with the remote hearing. However, as this question of any inadequacy in the Minister's discovery was still hanging fire at that time, and as Caytons had still not identified any shortcoming of any type in the discovery received by Western, I gave directions that a motion challenging the Minister's discovery be issued by the 9th of September and made returnable for the 22nd of September.
Despite the fact that they had initially suggested that complaints about the Minister's discovery would be set out in correspondence to be circulated by the end of June, it was not until two days before the motion for further and better discovery was ordered to be issued that Caytons first described why Western felt that the Minister had not made proper discovery. This is entirely unsatisfactory. The fact that the Minister did not agree to the schedule proposed by Caytons on the 11th of June is irrelevant. It was the responsibility of Western and its legal team to scrutinise the Minister's discovery promptly, to raise any issues within a reasonable period, and issue any motion without delay. I know, from Caytons’ own correspondence, that it was possible for any inadequacies in the Minister's discovery to be identified and described by the end of June. It is unacceptable that this was not done until the 7th of September. It is particularly unfair on the Minister, and her legal team, to be expected to reply over one working day to a five page letter setting out general defects in discovery and a thirteen page spreadsheet raising issues about seventy one individual documents.
The affidavit grounding the current motion states (at paragraph 11):-
“[…] by letter dated 8 September 2020, the Plaintiff's solicitors provided a response to the said letter dated 7 September 2020, offering a number of comments and confirming an intention to seek instructions but offering no commitment to make the further and better discovery sought […] Having regard to the directions of the Court given on 1 September 2020 with regard to the requirement to issue this motion on 09 September 2020, the Defendant has no alternative but to issue its said motion forthwith.”
The deponent then states that “appropriate consideration” will be given to any further response from the CSSO.
It is entirely...
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