HC 273/04
THE HIGH COURT
1997 NO 5233P

BETWEEN

JOSEPH O’CONNOR (NENAGH) LTD
Plaintiff
And 

ELECTRICITY SUPPLY BOARD
Defendant

Judgement delivered on the 14th July 2004 by O’Leary J

This is a motion by the Defendants (herein after the Applicants) seeking the discharge 
of an order made by the Master of the High Court on 16th July 2002 whereby he 
(1)	Refused an application of the applicants to extend the time for the filing of  a Supplemental Affidavit of Discovery and
(2)	Struck out the defendant’s defence.

In these proceedings the respondent/plaintiff seeks damages for beach of contract, negligence and other relief as set out in the pleadings herein.  The claim arises principally in respect of money allegedly paid by the respondent to the applicant for the building of a sub-station and also in respect of payments made for electricity allegedly supplied to the plaintiff/respondent by the applicant which payments were allegedly made as a result of a mistake of fact as set out in the pleadings. 

Facts found

The parties exchanged correspondence concerning discovery, which culminated in an order of the Master dated 12th February 1999.  This order set out the discovery considered by the Master to be necessary for the proper hearing of the case based on
the information then available to the Master.  This Order remains the basis of the discovery to be exchanged.  The extent of discovery had been in dispute between the
parties in particular the number of years to be covered was at issue and was
determined the by Masters order.

Each side produced various schedules and affidavits in attempted compliance with the Masters order.  A dispute as to the adequacy of the information discovered remained and ultimately the matter came before the Master on 16th July 2002 when he made the order now appealed. 

Subsequent to the order striking out the defence a further affidavit of a Mr Devane (on behalf of the applicant/defendant) was sent to the respondent/plaintiff.  This affidavit relates to that portion of the applicants motion, which deals with the extension of time for the lodging of the affidavit of discovery.  This affidavit contains further discovery in respect of some documents to which certain hand written notes are appended for the first time and up to fifty new documents not previously discovered.
Inferences from facts and submissions.

It appears that, at the time of the Masters order of 16th July 2002 part of the reason for the order striking out the defence was that the applicant/defendant had not put the discovery information in the correct form and was denied the opportunity of so doing when on the invitation of the master the respondent/plaintiff’s counsel objected to the granting of any additional time for this purpose.  If this was the only issue between the parties and the applicant had by now corrected that omission then the order striking out the defence could not stand even though the Master would have been technically justified in making his order at the time it was made.

The matter is however complicated by the nature of the formalised affidavit supplied
by the applicant/defendant dated 12th December 2002.  This not only regularises the
form of the previous discovery but also adds additional material, which appear to this court to fall within the ambit of the Masters order of 12th February 2002.  It is 
therefore open to this Court to consider the net effect of this developments and to decide whether the interests of justice is best served by confirming the order of the Master (though for different reasons) or by varying that order and if so in what way.

The law relating to the striking out of a defence is set out in the judgement of the Supreme Court Murphy v Donohoe Ltd I.R. 1 1996 p123.  At p 142 Barrington J said Order 31 r.21 exists to ensure that parties to litigation comply with orders for discovery.  It does not exist to punish a defaulter but to facilitate the administration of justice by ensuring compliance with the orders of the court.

This court must proceed on the basis that the discovery now available to the plaintiff/respondent is complete.  This being so this is now clearly a case where to confirm the order striking out the defence would be in the nature of a punishment 
rather than an action necessary for the administration of justice.  It remains open to the
trial court to take any appropriate action should the discovery now available from
either side prove at the trial to have been incomplete. 

The court will therefore allow the appeal in relation to the defence and allow fourteen days for the late filing of a supplemental affidavit of discovery by the applicant/defendant.

As this decision is based on information supplied to the respondent/plaintiff some five months after the Masters order and no satisfactory explanation for this late compliance has been put forward the respondent/plaintiff will be entitled to his costs above and below.

Approved by: O’Leary J.