Victoria Hall Management Ltd v Cox

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 11 September 2019
• Neutral Citation: [2019] IEHC 639
• Court: High Court
• Docket Number: [2016 No. 5037 P.]
• Date: 11 September 2019

BETWEEN

VICTORIA HALL MANAGEMENT LIMITED, PALM TREE LIMITED, GREY WILLOW LIMITED, ALBERT PROJECT MANAGEMENT LIMITED, O’FLYNN CAPITAL PARTNERS

and

O’FLYNN CONSTRUCTION (CORK)

PLAINTIFFS

AND

PATRICK COX, ROCKFORD ADVISORS LIMITED, LIAM FOLEY, FOLEY PROJECT MANAGEMENT LIMITED, EOGHAN KEARNEY, CARROWMORE PROPERTY LIMITED, CARROWMORE PROPERTY GARDINER LIMITED

and

CARROWMORE PROPETY GLOUCESTER LIMITED

DEFENDANTS

[2019] IEHC 639

David Barniville

[2016 No. 5037 P.]

THE HIGH COURT

COMMERCIAL

Discovery – Further and better discovery – Documents – Parties seeking discovery – Whether further and better discovery should be granted

Facts: The plaintiffs, in the first motion, sought an order directing the defendants to make further and better discovery of certain documents. That motion was issued on 20th February, 2019 and was initially returnable for 25th February, 2019. It was adjourned from time to time to enable affidavits to be exchanged and was ultimately compromised by means of a settlement agreement made on 11th April, 2019 on foot of which the court (Haughton J) made certain agreed directions. The plaintiffs contended that the defendants had failed to comply with those directions and re-entered the motion. The second motion was issued by the plaintiffs on 25th June, 2019 and was initially made returnable for 1st July, 2019. That motion sought additional discovery arising from the joinder of the seventh and eighth defendants (Carrowmore Property Gardiner Ltd and Carrowmore Property Gloucester Ltd) on foot of an order made by the High Court (McDonald J) on 6th February, 2019 which also permitted the plaintiffs to amend their statement of claim to include certain additional matters. On the day after that motion was issued by the plaintiffs, the defendants’ solicitors agreed that the defendants would make the further discovery sought by the plaintiffs in the second motion and would furnish an affidavit of discovery to be sworn by Mr Cox, the first defendant, by 9th August, 2019. An outstanding issue arose in relation to the second motion in that the plaintiffs also sought an order directing the seventh and eighth defendants to explain on affidavit the methodology adopted by them in making the discovery which they had agreed to make in circumstances where Mr Cox swore an affidavit on 30th May, 2019 confirming that the seventh and eighth defendants had no documentation to discover on foot of the plaintiffs’ request save for the documents which had already been discovered by the other defendants in the proceedings. The third motion was a motion brought by the defendants in which the defendants sought an order for further and better discovery against the plaintiffs in respect of two categories of documents which the defendants contended ought to have been discovered by the plaintiffs on foot of an order made by the court (McGovern J) on 11th July, 2017.

Held by the High Court (Barniville J) that it would direct the defendants to: (1) provide a detailed explanation on oath of all the redactions made to the contracts for sale dated 23rd February, 2017 and 23rd November, 2018 (redacted versions of which were exhibited at Exhibit “EK2” to the supplemental affidavit of Mr Kearney, the fifth defendant, sworn on 12th June, 2019) by affidavit to be sworn by one of the personal defendants on behalf of all of the defendants within 21 days of the date of the delivery of this judgment or within such other period as may be agreed between the parties or ordered by the court; (2) make further and better discovery of all agreements in relation to the purchase, sale, development and finance of Phase 2 of the Gardiner Street Project within the possession, power or procurement of the defendants or any of them as referred to in the affidavits sworn by Mr Cox, Mr Kearney and Mr Millar on 12th June, 2019, such discovery to be made within the same period as at (1) above. Barniville J would direct the defendants to furnish a further explanation as to the methodology used when the defendants’ discovery was originally made in October, 2017 and as to the methodology used on the further review required to be carried out by the personal defendants under para. 1 of the settlement agreement. Barniville J would discuss with counsel what orders (if any) needed to be made in respect of the second motion in circumstances where the defendants agreed to make further discovery by 9th August, 2019. Barniville J was satisfied that the same conclusions he reached in relation to the first motion on the requirement by the defendants to provide an explanation as to the methodology adopted applied equally to the further discovery which was required to be made by the defendants by 9th August, 2019. Barniville J refused the defendants’ application for further and better discovery of the documents sought.

Barniville J held that he would hear counsel in relation to the precise terms of the orders to be made and in relation to any other issues arising from the judgment on these three motions.

Defendants’ application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 11 ^th day of September, 2019

Introduction

1 This is my judgment on a number of motions in relation to discovery issued as between the plaintiffs and the defendants in this long running and fiercely contested case. Although the proceedings were commenced in June, 2016 and entered in the commercial list shortly thereafter, and although discovery orders were initially made in February, 2017, the parties are still in dispute in relation to various aspects of the discovery made by each other. Those motions came on for hearing before me on 19 ^th July, 2019. The case itself is listed for hearing on 14 ^th January, 2020.

2 There are three motions concerning discovery which are dealt with in this judgment. The first two have been brought by the plaintiffs as against the defendants. The third has been brought by the defendants.

3 In the first motion the plaintiffs seek an order directing the defendants to make further and better discovery of certain documents. That motion was issued on 20 ^th February, 2019 and was initially returnable for 25 ^th February, 2019. It was adjourned from time to time to enable affidavits to be exchanged and was ultimately compromised by means of a settlement agreement made on 11 ^th April, 2019 on foot of which the court (Haughton J.) made certain agreed directions. The plaintiffs contend that the defendants have failed to comply with those directions and have re-entered the motion.

4 The second motion was issued by the plaintiffs on 25 ^th June, 2019 and was initially made returnable for 1 ^st July, 2019. That motion seeks additional discovery arising from the joinder of the seventh and eighth defendants (Carrowmore Property Gardiner Limited and Carrowmore Property Gloucester Limited) on foot of an order made by the High Court (McDonald J.) on 6 ^th February, 2019 which also permitted the plaintiffs to amend their statement of claim to include certain additional matters. On the day after that motion was issued by the plaintiffs, the defendants’ solicitors, Crowley Millar, agreed that the defendants would make the further discovery sought by the plaintiffs in the second motion and would furnish an affidavit of discovery to be sworn by Patrick Cox, the first defendant, by 9 ^th August, 2019. An outstanding issue does arise in relation to the second motion in that the plaintiffs also seek an order directing the seventh and eighth defendants to explain on affidavit the methodology adopted by them in making the discovery which they have now agreed to make in circumstances where Mr. Cox, the first defendant, swore an affidavit on 30 ^th May, 2019 confirming that the seventh and eighth defendants had no documentation to discover on foot of the plaintiffs’ request save for the documents which had already been discovered by the other defendants in the proceedings.

5 The third motion is a motion brought by the defendants in which the defendants seek an order for further and better discovery against the plaintiffs in respect of two categories of documents which the defendants contend ought to have been discovered by the plaintiffs on foot of an order made by the court (McGovern J.) on 11 ^th July, 2017. The circumstances in which that order was made and in which the defendants now seek further and better discovery from the plaintiffs are somewhat complicated and will require to be addressed in some detail when I come to considering the third motion in the course of this judgment.

6 Before considering each of the motions, in the order in which I have just indicated, it is appropriate that I first sketch out the substantive case being advanced by the plaintiffs and the basis on which it is being defended by the defendants. I will then briefly outline the relevant legal principles applicable to applications for further and better discovery which arise, in particular, in relation to the first and third motions. In addition to those legal principles (on which there was little, if any, difference between the parties), certain other legal issues arise in respect of the various motions which I will consider separately when dealing with the motions themselves. Having set out those general legal principles applicable to applications for further and better discovery, I will then consider each of the motions in turn. Having done so, I will set out in my conclusions the orders I propose to make in relation to each of the motions.

The proceedings

7 The plaintiffs, property development companies variously registered in Ireland, England, Wales and Jersey, claim that three former employees of the plaintiffs or other entities within the O’Flynn Group of companies, namely, the first, third and fifth defendants, Patrick Cox, Liam Foley and Eoghan Kearney (the “personal defendants”) have acted in breach of their respective contracts of employment...