THE HIGH COURT
[2003 No. 13425 P.]
BETWEEN
NOEL RUSSELL
PLAINTIFF
AND
DANANN CLEAN AIR SYSTEMS LIMITED
DEFENDANT
DECISION of the Master of the High Court 19th January, 2007
This action commenced in the Circuit Court in July 2001 and was transferred
to and adopted in the High Court in 2004. Notice of Trial was given in August 2005
by the defendant’s solicitors, and this decision concerns the plaintiff’s motion for
discovery listed before me on 13th October last.
The plaintiff alleges that on 13th July, 1999, when he was 21 years old, he was
caused to wrench his back “while lifting a heavy steel fan or similar type object”.
In his affidavit opened to the Circuit Court when applying for transfer, the
plaintiff stated that “I was required to lift a fan frame as a result of which I suffered a
prolapsed lumbar disc and spinal stenosis”. He went on to describe a diagnosis of
diffuse or generalised disc protrusion at L5/SI “which is likely to be compressing the
nerve in an area narrowed by facet joint degenerative change”. A medical report of
Sean O’Laoire was exhibited.
In particulars furnished by the plaintiff in September 2002, he states that he
“was working as a group (sic). However Mr. Michael Burke was the senior person in
the group and…. All of the employees present when the accident occurred were
aware of the accident including Michael Burke”.
The plaintiff’s affidavit grounding this application for discovery was sworn on
20th June, 2006. (In this affidavit he asserts that he wrenched his back “whilst lifting
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a heavy steel fan” as opposed to a fan frame: is there a difference?) The plaintiff
exhibited two letters (24/06/05 and 07/12/05) requesting voluntary discovery. The
second of these letters refers to a response of 22nd August, but this response was
neither referred to or exhibited by the plaintiff. The plaintiff averred that he had been
advised “by counsel and my solicitors” that the documentation sought was relevant,
and goes on to refer to the defendant’s denials. Presumably it was intended that such
denials, and that matters were consequently in issue, would be accepted by the Court
as the basis on which a “need” for discovery might be deduced, but there is no
averment to that effect, or as to “need”, specifically, at all.
The first of the letters aforesaid employs the word “necessary” in relation to
one category (No. 2) in the context of an allegation of contributory negligence, viz.
failing to lift the object in a careful manner. This then, was the totality of the
information available to it on which the Court has to adjudicate whether discovery is
“really needed” or “genuinely necessary” (Ryanair v. Aer Rianta [2003] 4 I.R. 264;
Taylor v. Clonmel Healthcare Limited [2004] 1 I.R. 169.)
Three categories were sought. These were:
(a) (“Make discovery of…”) all documentation, contracts or other written materials
regarding the plaintiff’s Contract of Employment with the defendant.
(b) (“Furnish…(?!)”) all documentation regarding instructions, directions and training
given to the plaintiff in the lifting of heavy objects, to include the defendant’s
Safety Statement, identifying any such risk in the carrying out of such duties.
(c) (“Produce…(?!)”) all documentation and rosters in the possession, power or
procurement of the defendant, its servants or agents, regarding the plaintiff’s
employment on the 30th July, 1999.
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The Rules of Court provide that discovery applications are to be grounded or
judged by reference to “necessity” (“for disposing fairly of the cause or matter”) and
that evidence as to necessity is to be furnished to the court. O. 31, r. 12(a) describes
this exercise as a “verification”. The rule provides that discovery applications are to
be “grounded upon the affidavit of the party seeking such an order of discovery which
shall verify that the discovery of documents sought is necessary for disposing fairly of
the cause or matter or for saving costs.”
There is of course an essential qualitative difference between saying
something in a letter and saying it on affidavit. The letter may be complete fiction
and nothing will come of it afterwards. The affidavit is a sworn testament of facts
which are known to the deponent to be true, and the consequences of perjury are
serious. It was, I conjecture, hoped by the Rules Committee that much unnecessary
discovery would be eliminated by requiring an applicant to solemnly depose to
necessity on pain of such consequences.
A second opportunity was given by the Court to this plaintiff to comply with
the Rules of Court. An adjournment was granted to enable him, if he so chose, to file
a supplemental affidavit. He did so on 15th November, 2006, (in part referring to
himself in the third person) but the affidavit does not move the position much past a
bare compliance with the Rule. At paragraph 5 thereof the plaintiff deposes that:
“I say that I have been advised that the documentation and the categories as sought
are necessary for the proper presentation of my action in light of the defence as
furnished in the 29th January, 2004 and … to rebut the denial being made by the
defendant and to allow counsel to do so in cross examination on (sic) the defendant
its servants at the time of the accident.”
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Is that it then? Is the court to accept without question the opinion of the plaintiff’s
lawyers? What would the court do if, for example, a request for general discovery
was supported by just such a bald and non particularised opinion that “general
discovery is necessary”?
It is curious, is it not, that when the court presses (as it did in this case) for the
material supporting the bald assertion of “necessity”, the material is often not
forthcoming. Can the court not be told the facts which were factored into the opinion?
Are there particular facts and circumstances (evidential “deficits”) of which the court
might be apprised? The supplemental affidavit in this case adds nothing to the
impression created by the initial affidavit that discovery is being sought because that
is what lawyers do, even before they address themselves to whether they really or
genuinely “need” same.
One can understand an applicant who finds it irritating to have to put in simple
English the need for discovery of patently discoverable documents. We can all see, as
lawyers, when such documents are clearly needed. The problem is that one man’s
apparently patently discoverable documents may not be patent at all to his opponent,
or to the court. In my view, very few documents are patently discoverable, and this is
particularly so because documents, per se, are not evidence of the truth of their
contents and such evidence must be sourced elsewhere. Documents are merely
evidence that someone drew up the document and if you need to prove, as a material
fact, that a document was drawn up, the document itself would of course be patently
discoverable. Otherwise, the question must be whether you need to investigate the
availability of witnesses (or their testimony) in regard to a material fact to which the
document makes (or may be thought likely to make) reference, and can only do so
after reading the document well in advance of the hearing. (It often turns out that the
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fact in question can be proved by calling a witness whose identity is already known to
the party at the time he is applying for discovery: consequently discovery is strictly
speaking unnecessary).
The frustrations experienced by practitioners in regard to the new system of
category-specific discovery may have been exacerbated by confusion concerning the
verb “verify” in the rule. Elsewhere in the rules the term is employed in a context
where facts set out in an unsworn text must be confirmed on oath. A short form, or
formulaic “verifying”of the facts as so set out, is the standard averment employed.
But the term “verify” does not mean “confirm”. It means to support an
assertion by means of sworn factual testimony. In discovery cases, the assertion to be
verified is the “necessity”. That is an opinion: where are the supporting facts? These
facts must be sworn to also!
O.31, r. 1(a) provides that the grounding affidavit shall “furnish the reasons
why each category of document is required to be discovered.” (Incidentally, the word
“furnish” is almost as maladroit here as the word “verify” in O.31, r. 1(a)!). For the
new category-specific discovery, then, it was expected that each category would be
sought by reference to a particular (material) fact and having regard to a particular
evidential deficit. For “reasons”, read “relevance” plus “need”.
Technically, an affidavit which is not in compliance with O.31, r. l(a) should
result in the application being dismissed with costs. But the court, and the Master,
often choose to overlook this requirement if the “reasons” are to be found in the letter
seeking voluntary discovery, and the respondent is not prejudiced by their not being
restated on oath. If the applicant is fortunate, “verification” of the reasons “as set out
in the letter” may be accepted, if the letter is exhibited.
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The reason for discovery for each category should be separately stated and
each such reason should specify the fact(s) (category-specific facts) concerning which
the documents being sought may assist in sourcing evidence. Without this
identification of facts, the court cannot assess materiality and relevance.
Regarding “need”, if an applicant wants discovery, he’s got to make a case for
it. That doesn’t mean just a bare statement on oath that you need discovery. You
must state why you need discovery. (If an applicant doesn’t know why he needs
discovery, he doesn’t need it, and he shouldn’t apply for it.)
Nor is it necessarily the case that just because a fact has been denied, the party
alleging same “needs” discovery: that need can only be judged when that party’s
evidentiary circumstances are outlined to the court. If you say you need discovery
concerning a particular fact, you should also disclose in broad terms, as the backdrop
against which such need must be judged, what evidence of the fact is already
available to you.
And saying you need it just because it’s relevant to (logically probative of) the
category-specific fact isn’t enough either. Relevance is merely a first order
requirement: technically, the category-specific facts may be the material facts or may
be relevant to the material facts in issue, but that’s just not enough anymore. (If we
allow discovery of all relevant documents just because they’re relevant, we will be
back to square one, namely, general discovery). Now the court must look at “genuine
or real need” also; in other words, evidential deficit and/or litigious
advantage/disadvantage.
It was also clearly intended that respondents would be entitled to dispute (on
affidavit) the necessity for discovery and obviously this can be done only by disputing
the particular evidential deficit of the applicant as deposed to in the grounding
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affidavit. If no evidential deficit is deposed to, how can the respondent be considered
to have been treated fairly (unless, of course, the category is “patently discoverable”) :
he is not on notice of the facts underlying the assertion of necessity, and cannot
respond.
In McDonagh v. Sunday Newspapers Limited [2005] IEHC, a defamation case,
the plaintiff was not on notice of the facts underlying the defendant’s plea of
justification. In her judgment Miss Justice Macken held that the discovery application
was “not in compliance with the Rules in that proper reasons… as to the relevance of
the documents and as to their being necessary for the proper disposal of the action
are not sufficiently disclosed”.
My discovery order was set aside. Where we differed concerned the
particularisation of the justification plea. I had been of the view that a rolled up plea
of justification was no different from an assertion that all the defendant’s allegations
about the plaintiff were true (“as if each had been separately set out and the truth
thereof alleged seriatim”) but Miss Justice Macken took the view that the material
facts which the defendant intended to rely on should have been particularised or, at
the very least, set out in the affidavit grounding the discovery application and so
“permit the court to assess whether the discovery is sought to advance an existing
plea of justification”. In regard to relevance the judge commented that “it is the court
itself which must be satisfied at the end of the day”.
Likewise as to the necessity for discovery (as distinct from relevance to as yet
unpleaded material facts). The court criticised the grounding affidavit. It invoked,
the judge said, “a general basis of ‘necessity’ such as that discovery will avoid delay
and save costs; will go to the heart of the issues; will define the issues.”
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The court was “not satisfied that such general statements are appropriate”.
The affidavit might for example state that discovery would save costs and reduce
delay but “unless the description of the category of documents actually used is such as
to make it obvious that it will, in fact, avoid delay and save costs… a simple statement
to that effect… tells the court little unless there is some factual matter upon which the
court can be reasonably satisfied that this is the case”.
It follows that a general statement that “discovery is necessary for the fair
disposal of the matter” is not enough because (if I may borrow Miss Justice Macken’s
form of words) it tells the court little about real need or genuine necessity unless there
is some factual matter upon which the court can be reasonably satisfied that this is the
case. The solicitor’s opinion per se is not such a “factual” matter. Clearly, evidential
deficit or (other specified) litigious disadvantage, on the other hand, are matters of
fact which should be deposed to.
Now to return to the instant case. In the absence of anything other then the
inadequate “general statements” as to necessity condemned by Miss Justice Macken,
the exercise which must now be carried out is to determine whether the description of
the category of documents actually used is such as to make it obvious that it is, in fact,
necessary for the fair disposal of the matter. We are, in effect, seeking to assess
whether the category is “patently discoverable”(per Taylor v. Clonmel Healthcare Ltd
q.v.). In such instances, the Supreme Court advises us to waive non compliance with
the Rules of Court in the interests of justice, the respondent being unable to plead
prejudice because the discovery ordered will be the unavoidable and irreducible
minimum which the respondent must be taken to have expected (the respondent may
win his costs by agreeing to voluntarily discover categories or sub categories which
are patently discoverable).
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Documents are only “patently discoverable” if the evidential deficit causing
the need for discovery is itself self-evident. One must presume (in the absence of
anything to the contrary) that the plaintiff can give evidence himself as to the
circumstances of the accident. In this case there is nothing to suggest that the
plaintiff really or genuinely needs employment contract documentation, work rosters
for the day of the accident or records of training in lifting or instructions given to him
by his employer. That he was an employee is not denied. The accident was witnessed
by the “senior person, Michael Burke” and other employees. And the plaintiff can
give his own evidence. Accordingly the plaintiff’s need for discovery of these
categories is not self evident.
Often, I will go the extra mile. I will read through the papers to see if I can
spot any reference which may suggest the existence of an evidential deficit. The sort
of fact which ought to have been deposed to in the grounding affidavit. That the
plaintiff was knocked unconscious or cannot recall the accident, for example. That
witnesses have died. That papers have been destroyed (wage slips/employment
contract). Particulars are a good place to look. Or affidavits grounding applications
to transfer from the Circuit Court. Or advices on proofs inadvertently left with the
papers handed into court. There is nothing of significance to be found in the
paperwork in this case. His need is not patently obvious to me either.
In short, I have no idea why the plaintiff might need these documents, or any
of them. Quite the reverse in fact: it is obvious to me that he does not need discovery
of these documents to win his case. He doesn’t really or genuinely need this
discovery, his solicitor’s opinion to the contrary notwithstanding.
The application is refused with costs.
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Approved: Master Honohan