Word Perfect Translation v Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Frank Clarke
• Judgment Date: 24 March 2021
• Neutral Citation: [2021] IESC 19
• Docket Number: [Appeal No: 37/2020]
• Year: 2021
• Court: Supreme Court

BETWEEN/

WORD PERFECT TRANSLATION SERVICES LIMITED

APPLICANT/APPELLANT

AND

MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

[2021] IESC 19

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

[Appeal No: 37/2020]

THE SUPREME COURT

Form of order – Discovery – Costs – Appellant seeking a variation on the scheme identified in the principal judgment – Whether categories of documents ought to be the subject of a discovery order

Facts: The Supreme Court, on the 25th of September, 2020, delivered the substantive judgment on the appeal: [2020] IESC 56 (the principal judgment). A number of issues remained outstanding. The first issue concerned a suggestion put forward on behalf of the appellant, Word Perfect Translation Services Ltd, which would involve a variation on the scheme identified in the principal judgment. The principal judgment suggested that certain categories of discovery should be directed but that, in respect of certain other categories, arrangements should be made to have the documents whose disclosure was sought, identified and retained so that they would be available in court at the hearing of the action. The thinking behind that arrangement was that the trial judge would be in a better position to fully understand the true issues which required being resolved and the relevance of any potentially confidential information to the proper resolution of those issues. On that basis, the Court determined that certain questions of discovery should be left over to the trial judge. What the appellant proposed, but the respondent, the Minister for Public Expenditure and Reform, opposed, was that there should be an intermediate stage where the High Court would be invited to direct further discovery in advance of the hearing. Second, there were certain questions of detail about whether particular categories of documents ought to be the subject of a discovery order in light of the Court’s general approach as identified in the principal judgment. Much of the debate at the original hearing of the appeal centred on issues of principle with less focus on how the principles under debate might affect the specific categories of discovery sought. Third, there was a dispute between the parties as to the proper order for costs which should be made.

Held by Clarke CJ that he would not propose that the Court should make an order which would vary the regime identified in the principal judgment by adopting the protocol suggested by the appellant. He made certain observations as to the proper approach to dealing with questions of redaction of parts of documents, most particularly where the redaction concerned is stated to be on the grounds of relevance as opposed to privilege or confidentiality (in circumstances where the court ordering discovery has made clear that redaction for confidentiality may be permissible). In those circumstances he proposed that the Court should not give any form of preclearance to the respondent to redact on the grounds of relevance for it would be a matter for the respondent, having taken appropriate advice, to act conscientiously in that regard and in light of the comments made in this judgment concerning redaction of portions of documents for relevance. Clarke CJ proposed that the respondent should be entitled to redact portions of documents which contained highly sensitive confidential material subject to the possibility that the trial judge may nonetheless require the removal of such redaction if satisfied that such removal would contribute to a just resolution of the proceedings and would not amount to a disproportionate infringement of the right to confidentiality having regard to the extent of the materiality of the redacted portions of the documents in question to the issues truly arising at the trial. Clarke CJ held that the affidavit of discovery to be sworn in the case should, in circumstances where redaction had occurred, clearly indicate the basis on which such redaction was said to be justified. In light of the regime which the Court had sought to put in place in the principal judgment, he was of the view that it was appropriate to accept the respondent’s narrower suggestions in relation to discovery of Categories 4–8, subject to the entitlement of the appellant to revisit such scope at the trial.

Clarke CJ made no order as to costs in either the High Court or the Court of Appeal but granted the appellant the costs of the appeal to the Supreme Court.

Judgment approved.

Judgment of Mr. Justice Frank Clarke , Chief Justice, delivered the 24th of March, 2021.

1. Introduction

1.1 On the 25th of September, 2020, this Court delivered the substantive judgment on this appeal, Word Perfect Translation Services Ltd. v. The Minister for Public Expenditure and Reform [2020] IESC 56 (“the principal judgment”). As appears from the principal judgment, the Court invited the parties to seek to agree on the precise orders which should be made in the light of the findings contained in that judgment. While a measure of agreement was reached between the parties, it was intimated to the Court that a number of issues remained outstanding. In those circumstances the Court listed the matter for a further hearing, which took place on 12 November, 2020.

1.2 It is convenient to identify the issues which remained outstanding between the parties under three headings.

1.3 The first issue concerned a suggestion put forward on behalf of the applicant/appellant (“Word Perfect”) which, in substance, would involve a variation on the scheme identified in the principal judgment. It should be recalled that the principal judgment suggested that certain categories of discovery should be directed at this stage but that, in respect of certain other categories, arrangements should be made to have the documents whose disclosure was sought, identified and retained so that they would be available in court at the hearing of the action. As appears from the principal judgment, the thinking behind that arrangement was that the trial judge would be in a better position to fully understand the true issues which require to be resolved and, importantly, the relevance of any potentially confidential information to the proper resolution of those issues.

1.4 On that basis, this Court determined that certain questions of discovery should be left over to the trial judge. What Word Perfect proposed, but the respondent (“the Minister”) opposed, was that there should be an intermediate stage where the High Court would be invited to direct further discovery in advance of the hearing. It will be necessary to return to that issue in early course.

1.5 Second, there were certain questions of detail about whether particular categories of documents ought properly be the subject of a discovery order in light of the Court's general approach as identified in the principal judgment. In that context it should be recalled that much of the debate at the original hearing of this appeal centred on issues of principle with, perhaps, less focus on how the principles under debate might affect the specific categories of discovery sought.

1.6 Third, there was a dispute between the parties as to the proper order for costs which should be made. I propose to turn to the first issue.

2. The Protocol

2.1 The proposal put forward by Word Perfect involved a “Protocol of Inspection” (“the protocol”) which would enable the High Court to direct further discovery in advance of the hearing and after Word Perfect had received such discovery as this Court might now order.

2.2 The protocol proposes that certain documents in respect of which discovery is ordered might be redacted on the grounds of confidentiality and/or commercial sensitivity. The protocol proposes a mechanism by which, first, the Minister would consider whether redaction was considered appropriate and, if so, refer the documents in question to other tenderers (so that those tenderers could consider the proposed redaction) and, second, disputes in relation to any redaction could be brought before the High Court to be considered and determined.

2.3 In more detail, the protocol provides that any parts of the discoverable documents which were generated by the Minister, and which were considered by the Minister to be confidential or commercially sensitive to a tenderer, could be redacted. Insofar as any part of these documents referred to one of the tenderers, and/or contained any information which may have been confidential or commercially sensitive to that tenderer, the protocol provides that the Minister should furnish copies of the material parts of those documents to the tenderer concerned and request that party to identify any parts which they considered should be redacted on the basis of containing confidential and/or commercially sensitive information. In respect of any discoverable documents which were generated by a tenderer, the protocol likewise suggests that the Minister should furnish copies of the material parts of those documents to that tenderer and that the tenderer concerned could indicate any parts which they consider should be redacted.

2.4 The protocol then proposes that, in circumstances where Word Perfect is dissatisfied with the scale or nature of the redaction of the discovery documentation, Word Perfect should be entitled to nominate lawyers to review unredacted versions of the documentation in question. Those lawyers would be required to undertake not to discuss the content of the material identified for redaction with Word Perfect without first obtaining the consent of the person whose documentation is at issue. Where such consent is not forthcoming, the protocol suggests that the lawyers in question should only be entitled to disclose the content of the redacted material if granted leave to do so following an application to the court. Finally, the protocol suggests that, if it is not possible to...