VLM Ltd v Xerox (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 February 2005
• Neutral Citation: [2005] IEHC 46
• Docket Number: [No. 9916P/2002]
• Court: High Court
• Date: 25 February 2005

VLM Ltd v Xerox (Ireland) Ltd

BETWEEN

VLM LIMITED

PLAINTIFF

AND

XEROX (IRELAND) LIMITED

DEFENDANT

[2005] IEHC 46

[No. 9916P/2002]

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Test - Necessity of documents - Failure of machines to function as represented - Defence of contributory negligence - Whether documents which might show defects in other machines necessary to fair disposition of case - Expedition and economy as relevant considerations - Ryanair plc v Aer Rianta CPT [2003] 4 IR 264 and Compagnie Financiere du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 applied - Rules of the Superior Courts 1986 (SI 15/1986) O 31, r 12(4) - Rules of the Superior Courts (No. 2) (Discovery) 1999 (SI 233/1999) - Appeal allowed in part (2002/9916P - Clarke J - 25/2/2005) [2005] IEHC 46

VLM Ltd v Xerox (Ireland) Ltd

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241 2003/46/11374

RULES OF THE SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/1999

RSC O.31 r12(4)(1)(A)

RSC O.31 r12(3)

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882-83 11 LR QBD 55

BROOKS THOMAS LTD v IMPAC LTD 1999 1 ILRM 171 1998/12/3919

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169 2004 2 ILRM 133 2004/48/11095

RSC O.31 r12(4)

Mr. Justice Clarke

1 This matter comes before the court by way of an appeal from the decision of the Master of the High Court made on the 17th November, 2004. On that discovery in respect of certain areas was directed by consent of the parties to be made on behalf of the defendant but in respect of the matters which were in contention between the parties the order sought on behalf of the plaintiff at paragraphs 1 to 9 and 12 of his request was refused.

2 It is common case that there are four written agreements between the parties being three lease agreements (dated respectively the 12th October, 2000, the 17th April, 2001 and 30th August, 2001) and a full service/maintenance agreement dated 12th October, 2000 all of which relate to printing machines and the service and maintenance thereof. In substance the plaintiff claims that the relevant machines failed to conform with both the reasonable and therefore implied expectations in respect thereof and also in accordance with, what he contends, were representations in respect of the level of performance that could be expected. The plaintiff pleads his case as a breach of contract, breach of warranty, misrepresentation and in relation to negligence, breach of duty and breach of statute as alternative causes of action. However it should be noted that the representations alleged at paragraph 9 of the statement of claim are in identical terms to the contentions as to the express or implied terms of either the lease agreements or the service maintenance agreement as specified in paragraphs 4 and 5. Similarly it is difficult to see that the plaintiff's claim in negligence could extend any further than the claims in respect of breach of contract or misrepresentation in the circumstances of this case.

3 The substance of the plaintiff's case is, therefore, that the machines failed to comply with either the general standard which could reasonably be expected from them and/or with the specific performance requirements which he contends were represented to him. If he establishes such a failure then he would appear likely to succeed under one or all of the headings of claim made to the extent that he can establish loss. Equally if he fails to establish the above it is difficult to see how he could succeed under any of the headings of claim.

4 However before completing a review of the issues likely to arise at the substantive hearing of this case it is also necessary to have regard to the defendant's position. Much of what is set out in the defence amounts to a simple traverse of the contentions set out in the statement of claim. However paragraph 17 contains a new plea which is stated to be without prejudice to the other matters and contains an assertion that any loss or damage was caused solely or was contributed to by reason of "the negligence breach of duty and/or breach of contract on the part of the plaintiff its servants or agents in the use of the said machines". Various particulars are set out which specify the contention that the plaintiff failed in a variety of respects to operate the machines in a proper manner.

5 In those circumstances it seems likely that in general terms the issues in respect of liability which will need to be addressed at the trial of this action will be as follows:-

6 (a) whether any of the specific representations alleged on the part of the plaintiff as to the performance of the machines were made;

7 (b) in the light of (a) what were the obligations of the defendant in respect of the machines either as to general merchantable quality or arising from any specific representations found to have been made;

8 (c) did the machines fail to perform at the level indicated at (b); and

9 (d) if so was that failure to perform either in its entirety or in part caused not by any defect or other failings inherent in the machines or the maintenance thereof as carried out by the defendants but rather due to a failure on the part of the plaintiff to operate same in a proper manner.

10 It is as against that background that the disputed areas of discovery need to be considered.

11 InRyanair plc v. Aer Rianta CPT [2003] 4 I.R. 264 the Supreme Court had to consider the effects, if any, of the substitution of certain provisions of the rules of the Superior Courts brought about by the Rules of the Superior Courts (No. 2) (Discovery) 1999. The amended rule required an applicant for discovery to apply "by letter in writing requesting that discovery be made voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered". See Rule 12(4)(1)(a). The rule as amended further provided that an order should 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". See Rule 12(3). The Supreme Court determined that the amendment to the rule was intended to remedy the mischief of automatic and unnecessary resort to blanket discovery. However the amendment did not change the parts of the rule dealing with the necessity for discovery and the court had a broad discretion to refuse discovery where it considered that it was not necessary either for disposing fairly of the cause or matter or for saving costs. The court noted that the effect...