[2004] IEHC 388
THE HIGH COURT 
									1998 No. 8841P
BETWEEN 
PATRICK DOYLE
PLAINTIFF
AND
BRUNO MATASSA
								DEFENDANT 
DECISION OF THE MASTER dated 9th December, 2004 
	Even before the amendment (per S.I. 233 of 1999) of Rule 31 in relation to the procedures for applying for discovery of documents, the yardstick of “necessary for disposing fairly of the cause” was stipulated as the test to be employed by the Court. 

	The object of the amendment appears to have been to introduce a degree of rigour in the approach of practitioners to discovery applications by 
(a)	requiring that they formulate a request for categories of documents, (to eliminate the uncertainty inherent in the use of the catch all concept of “relevance to the issues”) specifying “reasons” for such request, and 
(b)	requiring that the “necessity” above referred to be verified in the grounding affidavit (though the Rule continues to provide that, ultimately, necessity is a matter of opinion, specifically, the Court’s opinion).

It requires but a little thought to realise that the verification requirement is qualitatively different to the specification of reasons because “necessity” must be, in part, based on the requesting litigant’s particular difficulties in sourcing evidence, while the “reasons” include, alongside such difficulties, an analysis of what the pleadings throw up as issues (the disputed material facts) which is to be found by reading the pleadings and is not at all a matter of evidence.  It is the added feature of evidential deficit and/or litigious disadvantage which, when cross referenced to the issues on material fact, creates the “necessity” to which the applicant must depose. 

Why, then, is it still the standard pattern in such affidavits that the deponent makes no reference whatsoever to evidential difficulties, but refers only to what is in issue, what is relevant, counsel’s advices he has received etc., etc., as the basis for an assertion that discovery is “necessary”? 

Can this ever be enough of a verification?  The Supreme Court has said it can be, but said so in a case where discovery was patently appropriate.  Necessity was, in effect, self-evident to the Court.  Indeed, practitioners generally have a good instinct for what discovery is “necessary for disposing fairly, which is why most discovery requests, properly drawn, are complied with.

But what if the necessity is not self-evident?  Is there justice in the Court hearing the application based on an assertion of “necessity” without supporting facts?  How can the respondent dispute the assertion: he is shadow boxing.  In fact, everybody is just guessing at what might or might not be the applicant’s evidential problem.  Occasionally I will suggest that the opinion of counsel referred to in the affidavit of the applicant be exhibited.  It rarely is.  In one case I was shown advices in which counsel had advised that discovery be sought of categories which did not correspond to those requested!  

This case is similar to many.  The plaintiff alleges (in a statement of claim delivered two years and three months after the summons and almost five years after the accident!) that he suffered injury while in the defendant’s chip shop in January, 1996.  The plaintiff “fell to the floor” and twisted his ankle.  The floor is alleged to have been “dangerous, slippery and wet”.  X-rays showed a fracture at the lower end of the tibia and treatment involved internal fixation with one screw and washer.  He was then in his final year of schooling (1996).  He is now (2000) a barman and his injured ankle continues to feel weak and “gives”. 

In the particulars, he lists eight witnesses in addition to himself and the defendant.  He was in such pain after the accident that he did not report it to the defendant. 

It takes until July, 2003, for the plaintiff’s solicitor to get around to requesting voluntary discovery.   He asks for:-
(a)	video or other recordings of the incident,
(b)	the cleaning schedule etc. for the chip shop for the day in question, and any changes since then, and
(c)	All slip/fall claims for five years to January 1996.

The “reasons” specified for the categories is the same for each, namely, because the defendant denies material facts.  In addition, as to (c) that “all similar incidents are relevant” to the allegation that the cleaning system was inadequate. 
   
Turning to the affidavit grounding the application (that sworn on 17th June, 2004), the above material is reproduced but, in addition, the deponent avers that “I say and believe that the discovery is necessary for disposing of the issues between the parties”.

The law surely requires some rigour, some attempt at an analysis, some basis for an opinion.  What facts does the applicant specify as the ones for the proof of which he seeks discovery?  They are:-
(a)	that the plaintiff was an invitee,
(b)	that the accident occurred,
(c)	that the plaintiff was injured,
(d)	that the floor was slippery and wet (“dangerous” is non-specific).
(e)	That the cleaning system etc was not “proper” (another non-specific word)
These facts are denied.

The Supreme Court suggests that in the case of a patently or self-evidently “discoverable” category of documents, I should not restrict myself to considering only the facts specified by the applicant but should instead supplement such a list with other material facts which the applicant had overlooked.  This “advice on proofs” approach is not needed in this particular case.

In the absence of any evidence (in the grounding affidavit) that the plaintiff himself cannot give evidence as to (a), (b), (c) and (d) above, or that the eight other “witnesses” were either looking away or are unavailable, there is no basis on which I can find that discovery is necessary.  In effect applying some practical commonsense to the situation, there is a sort of rebuttable presumption that the plaintiff can himself offer evidence of his accident at the trial: if not, the deponent should depose to whatever difficulty is being encountered.  (That having been stated, however, video evidence is of such an exceptional, unanswerable “probative” quality (even though it is still only documentary evidence) that both parties should normally have access to it before the trial.  We are informed that there is no video of this accident).

As for (e), regarding the adequacy of the cleaning system, the position is a little more complex.  The plaintiff, having given his evidence as to the slipperiness of the wet floor, can invite the trial judge to find, by way of inference, that the cleaning system was inadequate.  He may, however, be met by the defendant’s evidence and contention that the system employed discharged the obligation to be reasonably careful.  The café owner is not, after all, an insurer – reasonable care is all that is called for.  Certainly, the denial of the allegation that he failed to have a proper cleaning system suggests that the defendant may press his case on that basis. 

In fairness to the plaintiff, then, documents recording the cleaning which was undertaken around the time of the accident should be discovered.  After all, the defendant will probably want to rely on them, too, if they are favourable.  Contrariwise, if they are not, the defendant ought not be allowed make a case which is at variance with the actual, which he might attempt if the documents are not now discovered.   

Having ascertained, then, the actual cleaning which took place in the hours immediately preceding the accident, how is the Court to assess its “adequacy”?  An “expert” might offer an opinion based on an inspection of the premises but does this issue need such “expertise”?  Surely it is not a technical issue.  The fact that similar accidents occurred in the past when the same system was in operation might point to inadequacy.  The previous similar fact evidence would be a sort of statistical basis on which the Court could base its own conclusions as to whether the system was careful enough.  The fact that the system was changed afterwards might suggest inadequacy at the time of the accident though it would by no means be conclusive.  Such evidence may indeed by “relevant”, but is it “necessary”?  I think not.  None of the foregoing is “needed” to enable the Court to make a finding as to adequacy.  Indeed, properly speaking, “adequacy” may not be a fact at all, rather it is a label attaching to facts; a characterisation.  It would not be perverse for a jury to find want of reasonable care in the absence of formal evidence of “inadequacy”: the facts of the instant case provide a sufficient basis for such judgment. A jury would not take long to apply it’s own experience of these matters.  The trial judge will do likewise: he surely does not need schooling in what is or is not “reasonable care”.

Accordingly, there will be an order for discovery only of the records of the cleaning schedule for the evening of 6th January, 1996.  Although we are informed that there is no recording of the incident, for completeness sake I will order discovery since, on principle, such recordings would normally be discoverable, and the order should reflect the general principle.  

Since the plaintiff failed to offer any evidence on which the Court could assess necessity (and in the absence of such evidence the Court has had to judge what discovery is self-evidently “necessary”) the plaintiff will not be awarded the costs of this application nor will they be reserved.  Only the costs of the defendant will be reserved.

This small case may appear to be not worth the analytical effort spent in spelling out this decision.  The methodology employed however applies with equal force to far more complex and substantial cases.  That is why I have explored it.  Practitioners are asked to take note.