THE SUPREME COURT
1996 NO. 25P
Between
CROFTER PROPERTIES LIMITED
Plaintiff/Respondent
GENPORT LIMITED
Defendant/Appellant

NOTE OF JUDGMENT OF MC CRACKEN J DELIVERED 2nd MAY 2000

I am being asked to make discovery in respect of three classes of third party discovery against eircom [Judge then read out the three classes sought from the Notice of Motion].

The Defendant already has the records from January 1993 to November 1994. I should only order discovery where the documents are relevant to the matters in issue in the pleadings. I do not think what happened between June 1992 and December 1992 is an issue in the proceedings. The counterclaim is quite specific. It makes a claim for injurious falsehood etc. and particulars are given of various phone calls between January 1993 and November 1994. It is quite specific as to that. There is no claim in respect of any of these torts for the period between June 1992 and December 1992.

The defence pleads relief against forfeiture by the plaintiff and again the pleading can be seen to be quite specific. The matters relied upon are either the facts as found in the earlier High Court proceedings (which had not been determined at the time the Defence was delivered) or the findings on foot of the counterclaim in these proceedings. But the counterclaim has no relevance to the period June 1992 to December 1992.

Therefore on that ground alone the Defendant is not entitled to the discovery sought at paragraph (a) of the notice of motion.

I would also add that the Defendant has known for some time, and certainly for something in the region of a year, of the alleged calls to the South East Regional Crime Squad alleged during the period June 1992-December 1992 and no attempt was made prior to the issue of this motion on the 10th April 2000 to seek this discovery and this case was listed for some time for the 16th May 2000. The case is due to resume hearing in two weeks time.

This is an application for a discovery order which is over half way through and the evidence has been given two or three years ago by Ms. Devine that she did not make the phone calls. The Defendant therefore knew that inferential evidence would be necessary. The Defendant has known for some time that there were calls in 1992 but

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has not made any discovery application in that respect before now. I think it is too late to make it now.

With regard to the discovery sought at paragraphs (b) and (c) the question of delay is even more relevant. The original discovery order was made in March 1996 and the amended Defence and Counterclaim was delivered in March 1996, over four years ago. Discovery of the matters sought at paragraphs (b) and (c) could have been sought long ago at any time since then. Nothing has materially changed to indicate why the Defendant didn’t seek this type of Discovery four years ago, which would have alerted the Defendant to this discovery except possibly the desire to contradict the Defendant’s own witness Caroline Devine and that evidence has been known for some three years.

I think it would be quite wrong to direct discovery of this nature.

In any event, I am not convinced it will make much difference to the case but it would cause difficulty for the Plaintiff Evidence has already been given on behalf of the Defendant of calls from June 1992 onwards and that Mr. Tunney and Ms. Devine were the persons in charge of the telephones. The Plaintiff would have to consider the records of the other phone calls made on around sixty days which could be hundreds or thousands of calls and I think this could create serious problems for the Plaintiff with the hearing due to resume in two weeks.

I therefore refuse the Defendant’s motion.

[The plaintiff applied for the costs of the motion but the costs were reserved.] 

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