Factual and Procedural Background
The proceedings concern a contract for the construction of a children's hospital in the city, divided into Phase A and Phase B works, and the plaintiff seeks a declaration that its 8 January 2019 instruction to commence Phase B was valid and binding. The defendant disputes that the contractual preconditions had been met and says the instruction was invalid. [Para 14][Para 15][Para 16][Para 17][Para 18][Para 22][Para 23][Para 27][Para 28]
The case has already proceeded through amended pleadings, conciliation, a modular-trial order, an earlier round of discovery, and a later supplemental discovery order made after the defendant amended its defence to raise a new point about the authority of the person who issued the instruction. [Para 29][Para 30][Para 31][Para 32][Para 33][Para 34][Para 35][Para 38][Para 39][Para 40][Para 41][Para 44][Para 45][Para 56][Para 57][Para 62][Para 63][Para 64][Para 65][Para 66]
Legal Issues Presented
- Whether the plaintiff had complied with the Second Discovery Order, or whether the court should compel further and better discovery and a further affidavit addressing the defendant’s concerns about custodians, volume, external documents, and date ranges. [Para 126][Para 127][Para 140][Para 141][Para 146][Para 151]
- Whether the Employer’s Representative should have been treated as a custodian whose personal and role-based documents had to be searched and discovered. [Para 130][Para 133][Para 187][Para 191]
- Whether the plaintiff had to re-run discovery for all documents within the Second Discovery Categories, including documents previously discovered and documents created after 8 August 2023. [Para 140][Para 141][Para 247][Para 254]
Arguments of the Parties
Defendant's Arguments
- The custodian list was inadequate because it omitted persons whom the defendant said were directly involved, including the person who issued the Phase B instruction. [Para 175][Para 179][Para 185][Para 187][Para 191]
- The discovery outcome was said to be implausibly sparse, because only 91 documents were produced and only five documents were identified from a large review set, which the defendant said called the adequacy of the process into question. [Para 200][Para 201][Para 202][Para 203]
- The defendant said the prevalence of documents from the external design firms suggested that the plaintiff’s own records were incomplete and that the searches were inadequate. [Para 222][Para 226][Para 232]
- The defendant argued that the Second Discovery Order required a fresh review of all responsive documents, including previously discovered material, and that the plaintiff had not adequately captured the later period after 8 August 2023. [Para 234][Para 237][Para 241][Para 242][Para 247][Para 249]
Plaintiff's Arguments
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sterling Winthrop Group Limited v. Farbenfabriken Bayer [1967] IR 97 |
The core principles governing when a further affidavit of discovery may be ordered. [Para 154][Para 155][Para 156][Para 159][Para 164] |
The court treated it as the starting point for the governing test and relied on it to explain that a further affidavit is justified only where the evidence shows a proper basis to suspect omitted documents or a misunderstanding of relevance. [Para 154][Para 155][Para 156][Para 159][Para 160][Para 161][Para 162][Para 163][Para 164] |
| Daly v. Ardstone Capital Limited [2020] IEHC 200 |
The Sterling Winthrop principles are not exhaustive, and the court may look to other evidence and explanations when assessing discovery compliance. [Para 166][Para 167][Para 169][Para 170] |
The court used this authority to support a narrower jurisdiction to require an affidavit addressing specific concerns, even where full further and better discovery is not yet established. [Para 171][Para 172][Para 173][Para 174][Para 176] |
| Victoria Hall Management Ltd & Ors. v. Cox & Ors. [2019] IEHC 639 |
Explanations of issues, document exclusions, and the context in which documents came into being may be considered if given by someone able to speak to them. [Para 169][Para 170] |
The court relied on it through Daly to justify considering explanatory evidence from the plaintiff’s deponents about how the search and review exercise was conducted. [Para 167][Para 169][Para 170][Para 173][Para 176] |
| Kelland Homes Limited v. Ballytherm Limited & Ors. [2019] IEHC 46 |
An example of the court directing affidavits focused on specific discovery concerns rather than broader further and better discovery. [Para 171][Para 173] |
The court cited it with Daly as support for making a limited order where the issue is whether the discovery process was properly undertaken. [Para 171][Para 172][Para 173][Para 176] |
| Linfen Limited v. Rocca [2009] IEHC 292 |
The distinction between documents generated by an agent for the principal and documents prepared by professional advisers for their own assistance. [Para 230] |
The court used this distinction when rejecting the argument that the predominance of documents from the external firms meant that relevant material had been withheld or that the searches were inadequate. [Para 226][Para 229][Para 230][Para 232] |
| [2024] IEHC 114 |
The earlier discovery order in the same proceedings, later referred to as the First Discovery Order. [Para 45] |
The court referred to it only as the earlier order against which the scope of the Second Discovery Order and the later search exercise had to be understood. [Para 44][Para 45][Para 234][Para 235][Para 244][Para 245] |
Court's Reasoning and Analysis
The court first set out the governing discovery principles and accepted that it could order either further and better discovery or a more limited affidavit responding to specific concerns. It rejected the plaintiff’s submission that the narrower jurisdiction only arose after a full Sterling Winthrop test had been met, explaining instead that a court may require a clearer narrative of how discovery was undertaken where genuine concerns exist. [Para 154][Para 155][Para 156][Para 159][Para 163][Para 164][Para 166][Para 167][Para 171][Para 172][Para 173][Para 176]
On the custodian-list complaint, the court accepted that the six named custodians were selected because they were thought to hold potentially relevant data, and it held that a party is not generally obliged to explain why other people were not chosen. However, it treated the Employer’s Representative differently because that person was central to the dispute, was the author of the Phase B instruction, and could properly have been subjected to the more rigorous custodian search process rather than only the broader firm-level collection process. [Para 179][Para 180][Para 182][Para 184][Para 186][Para 187][Para 188][Para 189][Para 191][Para 192][Para 193][Para 195][Para 196][Para 199][Para 200][Para 201]
On volume and adequacy, the court held that the low number of documents produced, the small number found relevant, and the defendant’s “gaps” analysis did not show that the Sterling Winthrop threshold had been met. It emphasized that discovery is not the vehicle for answering why the later consultant agreement was signed when it was, although that point may arise at trial. [Para 204][Para 205][Para 206][Para 207][Para 210][Para 221][Para 222][Para 223]
On the documents obtained from the external firms, the court held that the fact that most produced documents came from those sources did not imply incompleteness or inadequate searching. It read the affidavit evidence as showing that all such material formed part of the data sources reviewed by the plaintiff’s solicitors, and it found no evidence that relevant material had been withheld from that review. [Para 226][Para 227][Para 228][Para 229][Para 230][Para 232]
On the date-range objection, the court rejected the suggestion that the Second Discovery exercise was wrongly limited by the earlier discovery exercise, because the affidavit evidence showed that the second search was directed to all material within the later order that had not already been collected before. But the court found one unexplained gap: there was no satisfactory explanation for the apparent absence of post-8 August 2023 documents, and on that point the plaintiff was ordered to review, collect and discover all such documents that matched the Second Discovery Categories. [Para 234][Para 235][Para 244][Para 245][Para 246][Para 247][Para 248][Para 249][Para 250][Para 251][Para 252][Para 253][Para 254]
Holding and Implications
PARTLY GRANTED. The court ordered the plaintiff to identify the Employer’s Representative as a custodian, to collect, review and discover that person’s documents within the Second Discovery Categories, and to discover all responsive documents created on or after 8 August 2023; all other relief was refused. The matter was listed for further submissions on the form of order and costs. [Para 201][Para 202][Para 223][Para 249][Para 254][Para 256][Para 257][Para 258][Para 259]