AMEC plc v. Bord Gais [1997] IEHC 117 (4th July, 1997)

Judgment of Miss Justice Laffoy delivered on the 4th day of July 1997 1. On this the Plaintiffs' application for an Order for discovery against the sixth, seventh, eighth and ninth Defendants (these Defendants) the following point falls for determination, namely, whether, in principle, at this stage in the proceedings, the Plaintiffs are entitled to discovery against these Defendants. 2. In broad terms, the proceedings relate to alleged breaches of a contract between the first Defendant, Bord Gais Eireann, and the second Plaintiff, a construction company, for the construction of the portions of the interconnector connecting the Irish and United Kingdom gas grids located on the Scottish mainland, which contract was guaranteed by the first Plaintiff. As against these Defendants, other than the Attorney General, in broad terms, the Plaintiffs claim damages for conspiracy, for inducement of breach of contract and, in relation to the application of ERDF funds, for negligence and breach of trust. 3. The state of the pleadings as between the Plaintiffs and these Defendants is as follows:- (a) the Plenary Summons was issued on 24th June, 1996; (b) the Statement of Claim was delivered on 25th June, 1996; (c) these Defendants delivered their Defence on 7th August, 1996; (d) the Reply was delivered on the 11th day of September 1996; and (e) Notice of Trial was served on 5th March, 1997. 4. Contemporaneously with delivery of their Defence, these Defendants served a Notice for Particulars on the Plaintiffs on 7th August, 1996 (the "August notice"). The Plaintiffs' replies to the August Notice were dated 20th January, 1997 (the "January replies"). Further particulars were sought by these Defendants by letter dated 3rd February, 1997 (the "February notice"). By letter dated 4th March, 1997 ( the "March replies"), the Plaintiffs replied to the February notice. 5. This motion was issued on 4th March, 1997. The first Defendant has agreed to make and is in the course of making voluntary discovery. By Order of this Court dated 27th June, 1997, which was made by consent, the second, third, fourth and fifth Defendants were ordered to make discovery and the usual cross Order was made. In a letter dated 30th September, 1996 from the Chief State Solicitor, these Defendants agreed in principle to make voluntary discovery, but, in the February notice it was indicated by the Chief State Solicitor that discovery would not be considered until proper particulars of the Plaintiffs' claim had been given. 6. The gravamen of these Defendants' objection to making discovery at this juncture is encapsulated in the following extract from the February notice, which was quoted in the Affidavit of Edmund Kent filed in opposition to this motion:- "Discovery is intended to assist parties to prove their case, not to make it up from scratch. As is abundantly clear from the replies delivered on your clients' behalf, they propose to go fishing through our clients' documents for just this purpose. I would strenuously resist such an abuse of process and I insist that you deliver proper particulars of your claim before any question of discovery is considered." 7. Mr. Collins, on behalf of these Defendants, contended that these Defendants are entitled to know what case is being made against them before they are called on to make discovery. He contended that where, as here, the allegations are vague and the plaintiff is not able to particularise them, the Court should not direct discovery to assist the plaintiff to make his case. Furthermore, he contended that the Court should not condone a situation in which a plaintiff makes an allegation of conspiracy against a defendant and, in response to a Notice for Particulars, the plaintiff says he cannot identify the conspirators but will do so after discovery of documents. 8. In order to test the validity of these Defendants' objection, I propose looking at just one of the allegations made by the Plaintiffs and at the manner in which it is dealt with in subsequent pleadings. I am satisfied that this example is representative of the Defendants' contention that the Plaintiffs' claim against them is inadequately pleaded. The sequence is as follows:- (1) In paragraph 37 of the Statement of Claim, having repeated earlier paragraphs in which the sixth Defendant's involvement with or representation on a Project Management Team, a Project Task Force and a Monitoring Committee was pleaded, it is alleged that these Defendants wrongfully caused or procured or induced the second Defendant to refuse to delay the payment of monies due to the second Plaintiff. (2) These Defendants deny this allegation in their Defence. (3) In the August notice, these Defendants sought full and detailed particulars of every individual instance when it is alleged the Defendants wrongfully caused, procured or induced the second Defendant to refuse or delay payments, specifying the form that the alleged procurement or inducement took and identifying the officers or agents of these Defendants allegedly involved and sought copies of any documents relied upon in reply. (4) The Plaintiffs' response in the January replies was that pending discovery the Plaintiffs were not in a position to identify with particularity the form taken by these Defendants, their servants or agents to procure or induce the second Defendant to refuse or delay payment. The reply continued:- "Notwithstanding same the presence or participation of the second named Defendant in the said meetings of the said Project Task Force or Project Monitoring Committee created the vehicle, conduit or opportunity for such wrongful procurement or inducement to take place with the officers, servants or agents of these Defendants. Without prejudice to the above these matters are within the knowledge of the Defendants, their servants or agents. The Plaintiffs reserve the right to deliver further particulars and documents relied upon after discovery as may arise therefrom." (5) In the February notice, these Defendants prefaced their request for further particulars by making two general observations on the inadequacy of the January replies. First, it was observed that it is not a proper reply to a request for particulars to say that the particulars sought are within the knowledge of the other party. Secondly, it was contended that it is wholly improper for a party to proceedings to make bald allegations of serious wrongdoing against another party where there are no grounds for the same, in the hope that something will turn up on discovery which will substantiate those allegations. There followed the extract which is quoted in Mr. Kent's Affidavit and which I have quoted above. Apropos of the specific particular in issue here, it was contended that the reply in the January replies was wholly uninformative and that vague phrases such as "vehicle, conduit or opportunity" are not appropriate in High Court pleadings that allege serious wrongdoing on the part of these Defendants. It was suggested that either the Plaintiffs are aware of the wrongdoing alleged, in which case proper particulars should be furnished without further delay, or they are not, in which case the allegations should never have been made and should be withdrawn. Further particulars were sought. (6) In the March replies, the Plaintiffs stated that allegation is that these Defendants wrongfully caused, procured or induced the second Defendant to refuse or delay the authorisation of payments to the second Plaintiff by virtue of discussions held and/or decisions made at inter alia the Monitoring Committee and the Project Task Force and Working Group Meetings. The reply continued:- "The forms of these decisions or discussions, procurements and inducements were both orally and in writing, by way of minute, report, memoranda or correspondence or decision made thereat, the effect of which was to allow, facilitate or encourage the second named Defendant to deal with monies fixed with a constructive or implied trust in favour of the second named Plaintiff in a manner other than for the benefit of that Plaintiff and they thereby hindered the implementation of the terms of contract. The Plaintiffs allege that it is the failure of these Defendants and each of them to have regard or any proper regard to the procedures and protocols required to be followed by virtue of CSF/REGEN Decision and its Operational Programme and the public procurement procedures of the sixth, seventh and eighth named Defendants together with the documents therein referred to. See also Graph attached hereto setting out Cost and Value Shortfall Schedule the supporting documentation for which is voluminous and will be furnished on discovery or earlier if so required by these Defendants." 9. There the matter rests, although Mr. Kilty, Counsel for the Plaintiffs, informed the Court that the Plaintiffs are now in a position to furnish and intend to furnish further particulars in response to these Defendants' requests. 10. Mr. Collins, on behalf of these Defendants, referred the Court to the decision of this Court (Morris J.) in The Law Society -v- Rawlinson and Hunter (a firm) in which judgment was delivered on 24th July, 1995. In those proceedings, the plaintiff alleged that the defendants were negligent in the manner in which they carried out their function and discharged their duties as reporting accountants to a solicitor's practice in respect of which the plaintiff was facing very substantial claims against its compensation fund. An Order for discovery was sought before delivery of the Statement of Claim. In his judgment, Morris J. stated that it was well settled that, while there is power vested in the Court to make an Order for discovery under Order 31, Rule 12 of the Rules of the Superior Courts, 1986 prior to delivery of the Statement of Claim, such an Order should only be made in the most exceptional circumstances. Having reviewed the authorities and outlined the facts of the application before him, he concluded that there were circumstances and facts in the case under consideration which would render it an exceptional case which would warrant exceptional treatment and he affirmed the Order of the Master ordering discovery before delivery of the Statement of Claim. One of the points Morris J. emphasised was that the plaintiff in that case was in possession of such information as would enable it to prepare and deliver a Statement of Claim reflecting the basic ingredients of the case it wished to make, that there existed a stateable case capable of being pleaded in general terms. 11. In my view, when this motion was issued, as the example I have set out above amply demonstrates, the Plaintiffs had pleaded their claims against these Defendants with sufficient clarity to ensure that these Defendants knew the claims being made against them and the issues between the Plaintiffs and these Defendants had been established. While I express no view as to whether the Plaintiffs have adequately particularised their claims in response to these Defendants' requests for further particulars, I have no doubt that on the present state of the pleadings the Plaintiffs are entitled to an Order for discovery against these Defendants. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII