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Nowak v Intesa San Paolo Vita S.P.A (Approved)
Factual and Procedural Background
The Plaintiff commenced plenary proceedings in 2016 and 2017 against the Defendant (consolidated by order dated 10 June 2024) alleging breach of employment contract arising from her dismissal on 26 August 2015. The Plaintiff seeks damages and reinstatement. The Plaintiff requested voluntary discovery in July 2024; after correspondence and requests for time from the Defendant, the Plaintiff issued a discovery motion on 6 September 2024. A High Court discovery motion was heard before the Deputy Master on 5 December 2024 and refused with costs (stayed pending appeal). The Plaintiff appealed that refusal; Judge O'Donnell delivered judgment on 17 June 2026 resolving the discovery issues on appeal. The substantive unfair dismissal matter is to be heard in the Circuit Court following a separate jurisdictional determination in [2026] IEHC 382.
Legal Issues Presented
- Whether the Plaintiff is entitled to discovery of documents in four specified categories under Order 31 rule 12.
- Whether the discovery application was premature given parallel proceedings before the Employment Appeals Tribunal and the Circuit Court.
- The scope and proportionality of any discovery ordered, particularly as to comparator employment records.
- Allocation of costs for the discovery motion.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff sought discovery to show that the person who signed her termination letter (referred to in the opinion as Person A) lacked authority, that the Board were not informed of disciplinary findings, and that the Defendant failed to review her remuneration (including equal pay allegations).
- The Plaintiff argued the documents sought were necessary to prove the termination process was defective and to establish entitlement to retrospective remuneration adjustments and reinstatement.
Defendant's Arguments
- The Defendant disputed the Plaintiff's factual and legal contentions, asserting a fair disciplinary process and that Person A had authority (or that any deficiency was subsequently ratified by the CEO).
- The Defendant contended the discovery application might be premature and sought more time to respond; it declined to make the requested discovery and did not file a replying affidavit to the motion.
- The Defendant argued comparator payroll/contractual material was irrelevant and intrusive concerning non-parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tobin v. Minister for Defence [2020] 1 I.R. 211 | General principles governing applications for discovery under Order 31 rule 12. | Referenced as part of the established discovery jurisprudence informing the relevance and necessity tests. |
| Ryan v. Dengrove DAC [2022] IECA 155 (Dengrove) | Framework for assessing relevance by reference to pleadings and that relevance must be demonstrated as a matter of probability. | Applied to require demonstrated, probable relevance to the pleaded case rather than speculative or fishing requests. |
| Hannon v Commissioner of Public Works [2001] IEHC 59 | Principle that the court should not order discovery simply because there is a possibility documents may be relevant. | Adopted to underline the requirement that discovery must be reasonably likely to contain relevant information. |
| O'Brien v. Red Flag Consulting Limited [2021] IECA 258 | Reinforcement that a party must demonstrate it is reasonable to suppose the documents contain relevant information; also cited for proportionality considerations. | Used to assess whether the Plaintiff's categories met the threshold of probable relevance and proportionality. |
| Boehringer Ingelheim Pharma GmbH v. Norton (Waterford) Ltd [2016] IECA 67 | Consideration that the nature and potential strength of relevance is relevant when assessing necessity of discovery. | Applied in evaluating how strongly the requested documents would advance or damage the parties' cases when deciding scope of discovery. |
Court's Reasoning and Analysis
The Court applied established Order 31 rule 12 principles (as explained in Tobin and Dengrove) focusing on relevance to the pleadings, probability that documents contain relevant information, and proportionality.
On prematurity: the Court acknowledged an argument that discovery might be unnecessary depending on the outcome of related appeals but held it appropriate to determine the discovery application and then consider whether any affidavit of discovery should be stayed if the Defendant pursues an application to terminate the plenary proceedings.
Categories 1–3 (process and authority): the Court found these categories relate directly to the process leading to termination and the authority of persons involved—issues joined by the pleadings. Given the Defendant contested the Plaintiff's contentions, the Court held some discovery was both relevant and necessary and ordered discovery of documents evidencing the decision-making process, authority/instructions to those carrying out the process, and any ratification by the CEO.
Category 4 (comparator salaries and qualifications): the Court analysed the pleadings and concluded the Plaintiff's claim concerning remuneration was focused on an alleged failure to implement contractual review for merit and cost of living. There were no detailed pleaded particulars of unlawful discriminatory pay practices. The Court considered the comparator request overbroad, potentially intrusive to non-parties, and insufficiently connected to pleaded particulars—characterised as potentially fishing. Accordingly the Court limited discovery to documents from 2009–2015 evidencing any review of the Plaintiff’s remuneration and refused the broader comparator discovery.
Costs and procedural management: the Court noted the Defendant did not file a replying affidavit and declined to propose a narrower discovery formulation in correspondence. Weighing these factors and s.169 LSRA 2015, the Court awarded the Plaintiff 75% of the costs recoverable by an applicant in person, to be adjudicated if not agreed, and stayed pending the outcome of the overall proceedings. The Court declined to fix a deadline for the affidavit of discovery pending potential further applications by the Defendant and listed a short further hearing to consider deferment.
Holding and Implications
ORDER FOR DISCOVERY GRANTED IN PART.
Holding (core rulings):
- The Defendant is ordered to discover: (i) documents evidencing the process by which the Defendant reached the decision to terminate the Plaintiff's employment, including documents evidencing authority/instructions to any person to carry out that process and documents evidencing ratification of the decision by the Defendant's CEO; and (ii) documents from 2009–2015 evidencing any review of the Plaintiff's remuneration.
- The broader request for comparator colleagues' employment and qualification records was refused as unnecessary and disproportionate to the pleaded case.
- The Plaintiff is entitled to 75% of the costs that may be due to an applicant in person, to be adjudicated in default of agreement; the costs order is stayed pending the outcome of the overall proceedings.
Implications:
- The immediate effect is a limited discovery obligation on the Defendant as specified; no broader discovery into non-party comparator records was required.
- The Court did not set a deadline for the affidavit of discovery, permitting potential deferral if the Defendant brings an application that would render discovery unnecessary, and listed the matter for further argument at 10:30am on 30 June 2026.
- The decision resolves the discovery dispute but does not determine the substantive employment or unfair dismissal claims; no novel legal precedent was created beyond application of established discovery principles.
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