THE HIGH COURT
1998 No. 405 P
BETWEEN

MICHAEL SWORDS
Plaintiff
and

WESTERN PROTEINS LIMITED
Defendants

Judgment of Mr. Justice Frederick Morris delivered on the 29th day of November 2000

This matter comes before the Court as an appeal from an Order of the Master made on the 19th May 2000 whereby he ordered that the Defendants within six weeks make Discovery on oath of inter alia

(4) ……Accident report form and all documents relating to the reporting and investigation of the accident in which the Plaintiff was involved up to the 1st October 1997 when the Defendant was made aware of the Plaintiff’s intention to bring legal proceedings arising out of the accident

The facts which are being alleged by the Plaintiff which give rise to this accident, insofar as is necessary to refer to them in this Application, are as follows: The Plaintiff claims that he was in the employment of the Defendants on the 8th July 1997 at their meat processing plant in Ballyhaunis, Co. Mayo.

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He alleges that through the Defendant’s negligence and breach of duty boiling matter and fat were caused or permitted to escape from a control gate in the ancillary pipe work in the premises which caused him to suffer serious burns and he claims damages for the personal injuries and loss which he sustained.

As the pre application correspondence in Discovery Motions is of importance it is necessary to set out this correspondence in some detail.

By letter of the 29th November 1999 the Plaintiff’s solicitors wrote to the Defendant’s solicitors asking them to make discovery of certain classes of documents. The relevant part of this letter is as follows:

Re: Michael Swords v Western Proteins Limited, the High Court 1998 No. 405 P

Dear Sirs,

The discovery which we require from your client is limited to the question of liability. We require discovery of all documents in your client’s possession which touch on in any way the issue of liability in this case and without prejudice to the generality of that request we require in particular the following;

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(2)…..

(3)……

(4) Accident report book/record details.”

By letter of the 7th February 2000 the Defendant’s solicitors replied in the following terms:

Michael Swords v Western Proteins Limited - The High Court 1998 No. 405 P

Dear Sirs, 

We refer to your letter of the 29th November 1999 seeking Discovery of certain documentation and would like to point out that the Master of the High Court has indicated that he is not prepared to make orders for discovery herein unless the person seeking the Discovery has outlined, not only the precise nature of the documents he or she requires but the reasons he or she requires them. Accordingly any application for Discovery brought by you in this regard will be resisted.

Yours faithfully,

The solicitor for the Plaintiffs replied to that letter in the following terms:

Re: Michael Swords v Western Proteins Limited - the High Court 1998 No. 405 P.

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Dear Sirs,

We acknowledge receipt of your letter of the 7th inst., in relation to this matter. I note your refusal to make Discovery of the documents sought in our letter of the 29th November. We would have assumed that the reason why we required Discovery of these documents was self evident. Liability remains an issue in this case and obviously the documents which we have sought would assist both the Plaintiff and the court in seeking to determine the liability issue.

In any event we are now preparing the appropriate application to the court for an Order for Discovery.

Yours faithfully,”

The Motion for Discovery was dated the 9th June 2000 and was based upon an Affidavit sworn by the Plaintiff’s solicitors on the 10th March 2000 exhibiting the foregoing correspondence. At the hearing the Master adjourned the case

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for the purpose of allowing the Plaintiffs solicitors file a Supplemental Affidavit. In this Supplemental Affidavit at paragraph 3(d) the documents sought are identified in the following form.

“(d)........Accident Report Form and all documents relating to the reporting and investigation of the accident in which the Plaintiff was involved from the date of the accident up until the 1st October 1997 when the Defendant was made aware of the Plaintiff’s intention to bring legal proceedings arising out of the accident.”

The reason for requiring these documents is stated to be:

“I further say and believe that access to these documents is required to prove the Defendant’s state of knowledge at the time and its negligence as particularised in the second, third and fourth paragraph of the Particulars of Negligence. Discovery of these documents is therefore necessary for the fair disposal of the cause at issue between the Parties.”

Counsel for the Defendant Mr. Clancy BL makes the following submissions objecting to the Order for Discovery and saying that the Master misdirected himself in allowing Discovery of the documents referred to in the latter part of paragraph (4) of his Order of the 19th May 2000.

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Counsel’s first submission is that Statutory Instrument 223 of 1999 Rules of the Superior Courts (No. 2) (Discovery), 1999 and in particular subparagraph 4 of Order 31 Rule 12 specifically precludes the court from making an Order for Discovery unless:

(a) The Applicant for same shall have previously applied by letter in writing requesting that Discovery be made voluntarily, specifying the precise category of documents in respect of which Discovery is sought and furnishing the reasons why each category of documents is required to be discovered and

(b) A reasonable period of time for such Discovery has been allowed.

(c) The Party or person requested has failed, refused or neglected to make such Discovery or has ignored such request.

Counsel submits that the letters written by the solicitor for the Plaintiff make no attempt to specify the precise category of documents nor is there any reason furnished why each category of document is required to be discovered. He says moreover no reasonable period of time for Discovery has been allowed.

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Accordingly he submits that the Master had no power to make the Order.

Next Counsel submits that there is an obligation upon the Parties seeking the Order to file an Affidavit

(a) Verifying that the Discovery of the documents sought is necessary to dispose fairly of the cause or matter or saving costs;

(b) Furnishing the reasons why each category of documents is required to be discovered.

Counsel submits that when the matter came before the Court the grounding Affidavit (of the 10th March 2000) failed to verify that the Discovery was necessary or that it would save costs and it failed to give reasons why each category was required to be discovered. He submits whereas the Supplemental Affidavit may have done this the Master misdirected himself in law and was wrong in not determining the issues that came before him and was wrong in adjourning the matter to enable the Defendant file a Supplemental Affidavit.

With regard to Counsel’s first point I am satisfied that the amendment to Order 31 Rule 12 was made for the purpose of addressing a problem which had given rise to delays and potential injustices over a number of years. A practice had

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developed whereby Orders for Discovery were obtained unnecessarily and such Orders delayed litigation. As has been pointed out by the Courts on a number of occasions Discovery before the advent of the photocopying machine, fax, E mail and word processors would probably involve the Discovery of a dozen documents. In recent years the number of documents discovered can amount to many thousands and the process has become unmanageable.

Accordingly I believe that Statutory Instrument 223 of 1999 imposed a clearly defined obligation upon a Party seeking Discovery to pinpoint the documents or category of documents required and required that Party to give the reasons why they were required. Blanket Discovery became a thing of the past. The new rule was brought into being to ensure in the first instance that the Party against whom Discovery was being sought would, upon receipt of the preliminary letter, be in a position to know the document or category of documents referred to and be able to exercise a judgment on whether the reasons given for requiring these documents to be discovered was valid. He would then be in a position to know if he was required to comply with the request. If he disputed his obligation to make Discovery the court would know by reference to this letter precisely why the Moving Party sought the documents in question and the grounds upon which the Moving Party believed 

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In my view if the letter of application does not comply with the rules then the issue is not identified and there is no power vested in the Master to make a determination on any issue. This is so even where an elaborate Affidavit is filed in support of the application. I am satisfied that in the particular circumstances in which this Statutory Instrument came into existence that the Master derives his jurisdiction to determine the issues which arise between the Parties from the identification of the issues in the Applicant’s originating letter or letters.

Turning to the present case I am satisfied that in as much as the Plaintiffs solicitor’s letter identifies the documents in question no better than describing than as “accident report book/record details” there has not been any effort made to specify the precise category of documents sought. The Master’s Order translates this into “accident report form and all documents relating to the reporting and investigation of the accident in which the Plaintiff was involved up to the 1st October 1997.” In my view this elaboration is not justified and I hold that there has been a failure on the part of the Plaintiff’s solicitor to specify the precise categories of documents sought in Discovery.

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Moreover I am satisfied that there has been a failure on the part of the Plaintiff’s solicitors to furnish reasons why each of these categories is required to be discovered. In the original letter of the 29th November 1999 no effort was made to address this requirement. In the second letter after the problem has specifically brought to his notice by the solicitor for the Defendant, the solicitor for the Plaintiff merely replies that he would have assumed that the reasons why Discovery was sought was self evident “Liability remaining an issue in this case and obviously the documents which we have sought would assist both Counsel and the court in seeking to determine the liability issue.” In my view this does not amount to a compliance with the rules.

Turning next to Counsel’s second submission:

When this matter came before the Master the only Affidavit was that of the 10th March 2000 sworn by the Plaintiff’s solicitors. This Affidavit neither (a) verified that the Discovery of documents was necessary to dispose fairly of the cause or matter or to save costs or (b) furnish reasons why each category of documents was required.

Upon being advised of the shortcomings in his Affidavit the solicitor for the Plaintiff sought and obtained leave from the Master to file a Supplemental

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Affidavit which in my view complies with the Order. I have no doubt it was within the Master’s jurisdiction to give the Plaintiff an opportunity to file a Supplemental Affidavit to enable him to comply with the Rules of Court. I see no obligation upon the Master to determine the issue on foot of the Affidavit then before him. Moreover it is in my view abundantly clear that if the interests and the saving of time and costs require that such an Order be made then the Master was correct to do so.

Counsel makes a third submission. It may be summarised as follows:

He submits that Order 31 Rule 12(2) provides that on the hearing of an application the Court may 

“either refuse or adjourn the same if satisfied that such Discovery is not necessary or not necessary at that stage of the cause or matter or by virtue of non compliance with the provisions of sub-rule 4(1) or make such Order on terms as to security for costs of Discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.”

Counsel submits that this is the limit of the Master’s jurisdiction and he may not adjourn the matter for the purpose of having a Supplemental Affidavit filed.

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I am of opinion that there is vested in the Master an overall jurisdiction to adjourn the case if the interests of justice require that such an Order be made. His jurisdiction is not derived solely from the provisions of Sub-section 2 is an inherent jurisdiction vested in him.

Conclusion

It follows from the foregoing that the jurisdiction to make an Order for Discovery is confined to circumstances in which the Master is of the opinion that there has been a compliance by the Applicant with Order 34. 12(4)(l). On appeal to this court the jurisdiction is so limited. I am of the view that there has been a failure on the part of the Applicant to comply with the Orders and Rules and accordingly there is no jurisdiction vested in me to make the Order sought and I accordingly refuse the Application.