University College Cork v Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 24 October 2017
• Neutral Citation: [2017] IEHC 599
• Court: High Court
• Docket Number: 2012 No. 129P
• Date: 24 October 2017

BETWEEN:

UNIVERSITY COLLEGE CORK – NATIONAL UNIVERSITY OF IRELAND

Plaintiff

– and –

THE ELECTRICITY SUPPLY BOARD

Defendant

[2017] IEHC 599

Barrett J.

2012 No. 129P

THE HIGH COURT

Practice and Procedures – Motion for discovery – O.31, r.12 (11) of the Rules of Superior Courts 1986 – Varying the terms of the discovery order – Relevancy – Proportionality

Facts: The plaintiff filed an application for the variation of the existing discovery order pursuant to o.31, r.12 (11) of the Rules of the Superior Courts 1986. The plaintiff contended that the wording of the discovery request in the named category in the discovery order was unreasonable. The plaintiff claimed that the word ‘quantum’ should be included in the request for discovery in the said category so that the plaintiff would assist in the discovery of all the documents evidencing the quantum of loss and damage suffered by the plaintiff. The plaintiff argued that the request for the named category, as originally drafted, was very wide and it would lead to the disclosure of the documents relating to loss and damage, while the real issue for determination was the quantum of loss and damage suffered by the plaintiff due to flooding.

Mr. Justice Max Barrett refused the relief sought by the plaintiff. The Court held that the plaintiff had failed to show that the discovery of the named category as ordered was unreasonable. The Court scrutinized the category of documents that the plaintiff was required to discover and held that the plaintiff's contention was misplaced. The Court gave its approval to stay the quantum module of the within proceedings, including any discovery required under the discovery order, pending the determination of the appeal from its judgment in the liability portion of the within proceedings. The Court noted that the documents that were needed to be disclosed by the plaintiff appeared to be relevant and necessary for the fair disposal of the issue between the parties.

JUDGMENT of Mr Justice Max Barrett delivered on 24th October, 2017.

TABLE OF CONTENTS

(Numbers in square brackets are paragraph numbers)

I. Application for Variation of Existing Discovery Order [1]

II. Order 31, rule 12(11), RSC [3]

III. Chronology and Basis for Variation Sought [7]

IV. Discovery and Proportionality [21]

(i) Overview. [21]

V. The Decision in Heatons [40]

VI. Summary of Applicable Principle [46]

VII. Some Features of the Within Application [48]

(i) The Burden Presenting. [48]

VIII. Conclusion [58]

IX. One Further Point [60]

I. Application for Variation of Existing Discovery Order

1 By notice of motion dated 1st December, 2016, UCC seeks an order pursuant to O. 31, r.12(11) of the Rules of the Superior Courts (1986), as amended, directing that the wording of category 14 of a discovery order made by the court (McGovern J.) on 3rd October 2012 (the “Discovery Order”), be varied as follows (the underlined wording to be inserted in place of the crossed-out wording):

‘All documents evidencing the quantum of[1] loss and damage suffered by the Plaintiffs, to include any loss inventory and correspondence between the Plaintiff and (whether with insurers or loss adjusters or any other person) which evidences the loss and damage, insofar as such documents relate to quantum.’

[1] The words ‘quantum of’ are not mentioned in the notice of motion but were mentioned at the hearing of the within application.

2 Notably, what is being asked of the court is that it now vary a category of discovery which requires UCC to discover documents evidencing its loss and damage in what will be a trial as to quantum (the court having previously reached a decision as to liability that is awaiting a hearing on appeal). That, the court notes, is an elementary category of discovery that routinely features in all sorts of cases that come before the High Court and where there is an issue as to loss.

II. Order 31, rule 12(11), RSC

3 Order 31, rule 12(11) of the Rules of the Superior Courts (1986), as amended, was introduced by the Rules of the Superior Courts (Discovery) 2009 ( S.I. No. 93 of 2009). Those Rules amend O.31, rr.12 and 20, RSC and, in particular, make provision for the discovery of electronically stored information. Order 31, rule 12(11) provides as follows:

‘Any party concerned by the effect of an order or agreement for discovery may at any time, by motion on notice to each other party concerned, apply to the Court for an order varying the terms of the discovery order or agreement. The Court may vary the terms of such order or agreement where it is satisfied that –

(i) further discovery is necessary for disposing fairly of the case or for saving costs; or

(ii) the discovery originally ordered or agreed is unreasonable having regard to the costs or other burden of providing discovery.’

4 As can be seen from the just-quoted text, rule 12(11) provides in effect for two scenarios:

(i) where it becomes apparent that the discovery that has been agreed or ordered is too narrow and that further discovery is necessary;

(ii) where discovery was ordered or agreed and it becomes apparent that what has been ordered or agreed is unreasonable, having regard to the costs or other burden of providing discovery.

5 As to (i), such a scenario might arise where there is correspondence, discovery is made, correspondence ensues, the party seeking discovery says “You haven't made discovery of Document X”, the party making discovery says “Document X does not come within the terms of the order for discovery”, and the party seeking discovery says, “It should come within the category of discovery and, if it does not, I want the category expanded so as to bring Document X within its ambit”. As to (ii), this reflects the reality that often a party is not clear as to the nature and extent of the discovery that it will have to make until it actually starts the process; under sub-rule (ii) of r.12(11) a mechanism is established whereby a party may come back into court and say in effect “Notwithstanding that the court has engaged in a proportionality analysis, having regard to the information now available, what falls to be discovered is an unreasonable burden”.

6 In passing, by way of general observation (though an observation which it is necessary for the court to return to later below) the court notes that the within application is one in respect of which UCC is the moving-party. Hence the burden of proof lies upon it before the power of the court to make the order sought can properly be invoked. UCC must show that the burden of making discovery exceeds what could have been anticipated in good faith, and that, accordingly, it is disproportionate to require UCC to comply with the Discovery Order. It is not for ESB to explain why it is not content to allow an amendment of the Discovery Order.

III. Chronology and Basis for Variation Sought

7 ESB made a request for discovery dated 6th June, 2012. Category 14 of the discovery sought was:

‘All documents evidencing the loss and damage incurred by the Plaintiffs, to include any loss inventory and correspondence (whether with insurers or loss adjusters or any other person) in relation to same.’

8 The reason given for this category was as follows:

‘The loss and damage alleged are denied and these documents, which are not otherwise available to the defendant, are necessary for the fair disposal of the action.’

9 Correspondence ensued, UCC agreed to make discovery of Category 14 in the terms sought, and that is reflected in the order for discovery made by McGovern J. on 3rd October, 2012. Notably, the recitals to that order refer, inter alia, to ‘ Counsel for the Plaintiff indicating an application pursuant to Order 31, rule 12(11) to vary the terms of the Order may be made’. It is not often that one finds a discovery order referring to the potential for a future order for variation order as having been flagged at the hearing of the motion for discovery. However, it appears that the reference derived from the fact that UCC had significant concerns, even at that early stage, as to proportionality generally.

10 In any event, following the making of the order, a methodology was developed by Matheson Solicitors, the firm of solicitors that had charge of the discovery process for UCC. A discovery process ensued and resulted in the discovery of 2,537 documents at the eye-watering cost of c. €1m. Notably, no steps were taken in relation to the discovery under Category 14. That is because of the following proposal made by Matheson in a letter of 14th December, 2012, under the heading ‘ CATEGORY 14’:

‘As you know, the Plaintiff's claim was independently assessed and adjusted by OSG Loss Adjusters, who were appointed by the Plaintiff's insurers. The adjustment of any claim involves careful consideration of loss, mitigation and scrutiny of every element of the claim. Consequently, in addition to the files retained by OSG, which contain extensive vouching documentation, there is a significant volume of documentation across all custodian and other sources of documentation within UCC which potentially respond to this category. We have suggested that quantum should be agreed by way of engagement between the parties' respective loss adjusters and we understand that you have appointed a firm of loss adjusters for this purpose.

We propose that in the first instance, OSG provide your loss adjusters with the documents which OSG believe, based on their professional assessment, are necessary for your loss adjusters to carry out their review and that the loss adjusters should engage to identify any further documentation required for your loss adjusters.

With this proposal in mind, we have not included key custodians who are responsive to, or identified key-word search terms in respect of Category 14.’

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