THE HIGH COURT
		1995 No. 2546P
BETWEEN
ULSTER BANK LIMITED
		PLAINTIFF
AND
DAVID BYRNE, DAVID BYRNE TRADING AND 
HIGHBRIDGE COMPANY LIMITED 
		DEFENDANTS
AND IN THE NATURE OF A GARNISHEE APPLICATION PURSUANT TO ORDER 45 OF THE RULES OF THE SUPERIOR COURTS 1986 (AS AMENDED)
 BETWEEN
ULSTER BANK LIMITED
		APPLICANT
AND
HATLEY COMPANY LIMITED, ALAN GRAHAM AND 
TRUSTEE SAVINGS BANK PLC
		RESPONDENTS

JUDGMENT of Mr. Justice Diarmuid O'Donovan delivered on the 10th day of July 1997

	This is an appeal by the Respondents against an Order for non-party or, as it is sometimes referred to, Notice Party Discovery, made by the Master of the High Court on the 28th February, 1997 under Order 31 Rule 29 of the Rules of the Superior Courts in the terms of the Applicant's Notice of Motion dated the 22nd January, 1997.
	The background to this appeal, as it appears to me to be relevant to the issues which I have to decide, is that the substantive proceedings were commenced by Plenary Summons issued on the 5th April, 1995; the Plaintiff's claim arising from the countermanding by the Defendants of five separate cheques which had been drawn on the account of the first named Defendant at the branch of the Trustee Savings Bank Plc at Dundrum, 
Co. Dublin, the Plaintiff having permitted funds to be drawn as against those uncleared cheques in the sum of £244,544.00.  In the course of the substantive proceedings, the Plaintiff sought non-party, or Notice Party, Discovery against the Trustee Savings Bank Plc. to which no objection was raised and an Affidavit of Discovery was duly sworn on the 8th August, 1995 and filed on behalf of the Trustee Savings Bank in compliance with an Order in that behalf made by the Master of the High Court on the 21st July, 1995.  In that Affidavit, documents relating to three separate accounts were discovered, namely;

(a)	Account No. 00059982 - David Byrne Trading. 
(b)	Account No. 00205431 - Anna Kearns and 
(c)	Account No. 00228901 - Hatley Company Limited.

subsequently, by letter dated the 3rd November, 1995 from Matheson Ormsby Prentice, Solicitors for the Trustee Savings Bank Plc., to McKeever Rowan, Solicitors for the Plaintiff, additional documents relating to lodgements and withdrawals between those three accounts were furnished.  As a result of a variety of movements between those accounts in the two days prior to the 5th April, 1995, there is now standing to the credit of Hatley Company Limited in account number 00228901 a balance of £15,308.26 and accumulated interest.  On the 27th day of November, 1995, the Plaintiff obtained judgment against the third named Defendant for the sum of £264,120.03 together with costs and on the 18th day of December, 1995, the Plaintiff obtained judgment against the first named Defendant in the sum of £264,120.03 plus costs.  Subsequent to obtaining the said Judgments, the first named Defendant, David Byrne and the second named Respondent, Alan Graham (inter alia) were examined on oath on behalf of the Plaintiff before the Master of the High Court, following which, by Order of the High Court dated the 8th July, 1986, a conditional Order of Garnishee was made against the Trustee Savings Bank Plc. and Hatley Company Limited in respect of the balance standing to the credit of account number: 00228901 aforesaid in the name of Hatley Company Limited.  By the said Order of the 8th July, 1996, it was further ordered that the second named Respondent, Alan Graham, be served with a copy of that Order.  Subsequently, on an application on behalf of the Plaintiff to make the said conditional Order of Garnishee absolute, the said Alan Graham, in an Affidavit sworn on the 26th July, 1996, on his own behalf and on behalf of Hatley Company Limited, disputed the Plaintiff's claim to ownership of the said monies standing to the credit of the said Account No: 00228901 in the name of Hatley Company Limited; alleging that he, the said Alan Graham, is the owner of the said monies, whereupon the Court directed the trial of an issue as to the entitlement of the Plaintiff and the said Alan Graham to the credit balance on the said account.  It is within the trial of that issue that the Plaintiff sought and obtained the Order for Non-Party, or Notice Party, Discovery, which is the subject of this Appeal.  In this regard, it is noteworthy that the Trustee Savings Bank Plc. is not a party to that issue but has confirmed that it is prepared to abide by whatever Order is made by the Court thereon.
	In the said Notice of Motion dated the 22nd January, 1997, the Applicant sought non-Party, or Notice Party Discovery, in respect of the matters detailed at paragraph 1(A) to (K) inclusive therein and, for their part, the Respondents, the Trustee Savings Bank plc., dispute the Applicant's entitlement to discovery of the documents detailed in paragraph 1(A) of the said Notice of Motion on the grounds that there is no account in the name of Alan Graham bearing account number 990617-29938360 at its branch at Clondalkin in the City of Dublin, their entitlement to discovery of the documents detailed at paragraph 1(G) and (I) of the said Notice of Motion on the grounds that those documents are not defined with sufficient precision to enable the Trustee Savings Bank plc to ascertain whether it has complied with its discovery obligations and the documents detailed at paragraph 1(C) and (H) of the said Notice of Motion on the grounds that those documents are not relevant to any matter in question on the said issue between the Plaintiff and the said Alan Graham.  In all other respects, however, the Trustee Savings Bank Plc. has indicated to me that it has no objection to making further Non-Party, or Third Party Discovery, in the terms sought in the said Notice of Motion dated the 22nd January, 1997 and included in the said Order of the Master of the High Court dated the 28th February, 1997.  However, the Respondents, Hatley Company Limited and Alan Graham, dispute the entitlement of the Applicant to discovery of all of the documents detailed at paragraph 1(A) to (K) inclusive in the said Notice of Motion dated the 22nd January, 1997 on the grounds set out at paragraph 7 of an Affidavit of one Kirby Tarrant, Solicitor for the said Respondents, sworn herein on the 28th day of February, 1997.  I will refer to those grounds with greater particularity later on in this judgment.  
	In a judgment of the Supreme Court given in a case of Allied Irish Banks Plc. and Allied Irish Banks (Holdings and Investments) Limited, Plaintiffs, -v- Ernst & Whinney, Defendant, and The Minister for Industry and Commerce, Notice Party, (1993 1 I.R. at page 376) it was decided that there was an onus on an applicant for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts to establish, firstly, that the party from whom discovery is sought is likely to have or to have had the documents sought to be discovered in his possession, custody or power and, secondly, that the documents sought to be discovered are relevant to an issue arising or likely to arise out of the cause or matter in respect of which discovery is sought.  In that case, the Supreme Court further decided that, in an application for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts, even after it has been established to the satisfaction of the Court that the person against whom discovery is sought has, or is likely to have, in his possession, documents which are relevant to an issue arising, the Court still has a further discretion to refuse the application if it considers that  particular oppression or prejudice will be caused to the person called upon to make discovery which is not capable of being adequately compensated by the payment by the party seeking discovery of the costs of the making thereof.  Nevertheless, in that case, the Supreme Court emphasised that, whatever discretion the Courts may have with regard to an application for discovery pursuant to Order 31 Rule 29 of the Rules of the Superior Courts, the basic purpose and reason for the procedure of discovery was to ensure as far as possible that the full facts concerning any matter in dispute before the Court was capable of being presented to the Court by the parties concerned so that justice on full information, rather than on a limited or partial revelation of the facts arising in a particular action, may be done.  In this connection, in the course of the arguments before me, I was referred to another decision of the Supreme Court given in a case of Patrick Murphy, Plaintiff, -v- Anthony M. D. Kirwan, Defendant, (1993 3 I.R. at page 501) and it was submitted that, in the light of that judgment and notwithstanding the decision of the court in Allied Irish Banks Plc. and Allied Irish Banks (Holdings and Investments) Limited -v- Ernst and Whinney aforesaid, when, on an application for Non-Party, or Third Party Discovery, it is intimated, as the Plaintiff has intimated in these proceedings, that a party to the cause or matter in respect of which discovery is sought has been guilty of fraud, or other malpractice, then the application for discovery should be granted irrespective of the relevance of the documents sought to be discovered or any oppression or prejudice which may be caused to the person called upon to make such discovery.  In my opinion, the decision of the Supreme Court given in Patrick Murphy -v- Anthony M.D. Kirwan does not, in any way,  alter or admit to exceptions to the principles laid down by that Court in Allied Irish Banks Plc and Allied Banks (Holdings and Investments) Limited -v- Ernst & Whinney.  In the case of Patrick Murphy -v- Anthony M.D. Kirwan, the Court was concerned with the question of legal professional privilege and, in particular, as to whether or not the general rule that communications between a client and his legal advisors were privileged admitted to an exception in the event that one of the persons concerned had been guilty of conduct of moral turpitude; an exception which the Court, in fact, recognised.  However, in my opinion, the decision of the Court in Patrick Murphy -v- Anthony M.D. Kirwan does not recognise an exception to the rule laid down in  Allied Irish Banks Plc and Allied Banks (Holdings and Investments) Limited -v- Ernst & Whinney that documents sought to be discovered pursuant to Order 31 Rule 29 of the Rules of the Superior Courts was to be relevant to the issue in respect of which those documents are sought to be discovered. notwithstanding that one of the parties to that issue may be alleging fraud on the part of another party thereto.  Accordingly, in adjudicating upon this appeal, I have only concerned myself with whether or not the Trustee Savings Bank Plc. is likely to have or to have had the documents sought to be discovered in their possession, custody or power, as to whether or not any particular oppression or prejudice will be caused to the Trustee Savings Bank Plc which is not capable of being adequately compensated by the payment of costs should they be required to make such discovery and as to whether or not the interests of justice require that I should make the Order for Discovery sought.  
	In the light of the foregoing, with reference to the Applicant's Notice of Motion herein dated the 22nd January, 1997 my opinion with regard to the documents sought to be discovered is as follows;

(a)	The reference in this sub-paragraph to Account Number 990617-29938360 is clearly a typographical error and, obviously, was intended to be a reference to Account Number 990617-20038360 in the name of the Respondent, Alan Graham at the Clondalkin branch of the Trustee Savings Bank Plc.   In the circumstance that extracts from that account were exhibited in an affidavit sworn herein on the 26th July, 1996 by Mr. Graham and that the Trustee Savings Bank Plc. appear to have no problem about discovering that account, it is my opinion that it is relevant to the said issue and, accordingly, I would allow discovery in respect thereof despite the protestations in that behalf in the said Affidavit of Kirby Tarrant sworn herein on the 28th February, 1997.  

(b)	I would allow discovery in respect of these documents for the reasons  as at (a) above.

(c)	Any enquiries which the Trustee Savings Bank Plc may have made with regard to Account Number 990617-20038360 aforesaid do not appear to me to be relevant to the said issue and, accordingly, I would disallow the discovery sought in this sub-paragraph.

(d)	While it is not clear to me how relevant these documents may be to the said issue, in the circumstance that the Trustee Savings Bank Plc. make no objection to the discovery thereof, it would seem to follow, that they, (the Trustee Bank Plc.) accept that they are relevant.  Accordingly, I would allow discovery in respect of these documents; again despite the protestations in that behalf in the said Affidavit of Kirby Tallant.
(e)	For the same reasons as at (d) above I would allow discovery of these documents.

(f)	Clearly, the Trustee Savings Bank Plc. have these documents and they are relevant to the said issue.  Accordingly, as they (the Trustee Savings Bank Plc.) make no protest that any particular oppression will be caused to them by making the discovery sought, I will allow it; again, notwithstanding the protests in that behalf in the said Affidavit of Kirby Tarrant.

(g)	In the said Affidavit sworn by him on the 28th February, 1997, Kirby Tarrant avers that these documents have already been discovered.  I do not know whether or not that is so.  However, neither Kirby Tarrant nor the Trustee Savings Bank Plc. dispute the relevance of these documents to the said issue and, on face value, they appear to me to be relevant.  That is as may be, however, the Trustee Savings Bank Plc. protest that the discovery sought in respect of these documents is too wide and uncertain.  That seems to me to be so.  Moreover, I am of the view that it would be very oppressive on a large organisation, such as the Trustee Savings Bank Plc., to have to make the enquiries which would be necessary to comply with the discovery sought in respect of these documents.  Accordingly, I will disallow discovery in respect of these documents.

(h)	Each of the Respondents maintain that documents within the possession or power of the Trustee Savings Bank Plc. relating to the operation of the David Byrne Trading Account Number 990620-00059982 from the 1st January, 1993 to the 1st April, 1995 have already been discovered by the Trustee Savings Bank Plc.  However, the Trustee Savings Bank Plc. have no objection to doing so again and, accordingly,  if it is still required by the Applicant, I will allow discovery in respect of these documents for the period from the 1st January, 1993 to the 5th April, 1995.  However, the Trustee Savings Bank Plc. protests that documentation relating to this account which came into existence after the 5th April, 1995 are not relevant to the said issue because the issue relates to the ownership of the capital monies standing to the credit of that account on that date.  Accordingly, I will disallow the discovery sought with regard to documentation relating to this account which came into existence after the 5th April, 1995.

(i)	The Trustee Savings Bank Plc. protests that the discovery sought with regard to these documents is too wide.  I agree.  Indeed, as the Applicant has already obtained an order for discovery with regard to the two accounts to which this request relates, it seems to me that it would be unnecessarily oppressive on the Trustee Savings Bank Plc. where they also required to make the discovery sought in this sub-paragraph and, accordingly, I will disallow it.  In any event, in his Affidavit sworn herein on the 28th February, 1997, Kirby Tarrant avers that these documents are not relevant to the said issue and it seems to me that that may well be so.

(j)	As neither one of the Respondents object to the discovery sought in respect of these documents I will allow it.  

(k)	While the Trustee Savings Bank Plc. do not object to making the discovery sought in respect of these documents, in his said Affidavit of the 28th February, 1997, Kirby Tarrant alleges that the discovery sought in respect thereof is both speculative and vague.  I agree.  In my view, the matters covered in this sub-paragraph are not properly the subject matter of discovery but can be dealt with in the course of evidence at the trial of the said issue.  Accordingly, I will refuse the Order for discovery sought in respect of the these documents.

	The foregoing Orders are made on the usual basis under the provisions of Order 31 Rule 29 of the Rules of the Superior Courts that the Applicant should indemnify the Respondents in respect of the costs they incur.