The Gazette 1993

GAZETTE

MAY 1993

for judicial review clearly made trenchant

criticism of the Minister to which he was

entitled to reply in careful and moderate

terms; and while the Minister was ill-ad-

vised to give a response on a live radio

broadcast, the matter was of ongoing public

interest and in these exceptional circum-

stances having regard to the provisions pro-

tecting freedom of expression in Article

40.3 of the Constitution, contempt had not

been made out under this heading.

Attorney

General v Times Newspapers Ltd\

1974] AC

273 and

Times Newspapers Ltd v United

Kingdom

(1979) 2 EHRR 245 discussed.

Per

O'Hanlon J: the court should assume that

Irish law on contempt was consistent with

Article 10 of the European Convention on

Human Rights and Fundamental Freedoms.

Dicta in

The State(DPP) v Walsh

|19811 IR

412 applied.

Emerald Meats Ltd v Minister for Agricul-

ture and Ors (No.2) Supreme Court 16 July

1992

PRACTICE - APPEAL - STAY ON AWARD OF DAMAGES

PENDING APPEAL - APPEAL LIKELY TO INVOLVE

DELAY OF OVER TWO YEARS - WHETHER STAY

SHOULD BE LIFTED - LIKELIHOOD OF SUCCESS OF

APPEAL

The plaintiff was a company engaged in the

meat trade. The plaintiff claimed declara-

tory relief and damages in relation to the

failure by the defendants to grant the plain-

tiff an import quota for 1990 under the terms

of EC Council Regulation 4024/89, which

concerns imports of meat from non-EC States

coming within the terms of the GATT. In the

High Court, Costello ) granted the relief

sought:

Emerald Meats Ltd v Minister for

Agriculture and Ors

(High Court, 9 July

1991). The decree for damages was for

385,922 with interest. Without objection

from the plaintiff, the defendants were

granted in July 1991 a stay on the damages

award pending appeal. In July 1992, the

plaintiff sought to have the stay removed.

HELD by the Supreme Court (Hederman,

McCarthy and Egan JJ) removing the stay:

although the plaintiff had not objected to

the stay in 1991, circumstances had changed

considerably since then, and it appeared

thatthe plaintiff was in immediate danger of

going out of business; having regard to the

issues raised in the appeal, it was possible

that a reference to the Court of Justice under

Article 177 of the Treaty of the European

Economic Community might result,- thus

postponing final judgment for a further two

years; and in the light of the trial judge's

findings, the prospects of success for the

defendants seemed slight; and in those cir-

cumstances, although the damages might

become dissipated in the company's debts,

the justice of the case lay in removing the

stay on the award.

Redmond

Ireland 119921

ILRM 291 applied.

Megaleasing UK Ltd and Ors v Barrett and

Ors (No.2) Supreme Court 20 July 1992

PRACTICE - DISCOVERY - DISCOVERY AS SUBSTAN-

TIVE RELIEF - HIGH COURT GRANTING SUCH ORDER

FOR DISCOVERY - WHETHER JUSTIFIED IN CIRCUM-

STANCES

The plaintiffs (the companies) instituted ple-

nary proceedings against the defendants in

which the substantive relief was for orders

of discovery concerning certain invoices

which had been paid by the companies.

Payment of the invoices had been author-

ised by certain of the defendants, who were

employees of the companies, but the com-

panies alleged that they had received no

consideration or value for the payments

made. The purpose of the discovery orders

was stated by the companies to be to facili-

tate them in bringing proceedings against

other parties whose tortious acts the compa-

nies claimed had caused them to suffer loss.

In the High Court, Costello J granted the

plaintiffs the relief sought, and refused to

grant a stay of execution upon the order. On

appeal by the defendants against the refusal

of the stay, the Supreme Court granted the

stay:

Megaleasing UK Ltd and Ors v Barrett

and Ors

[ 1992] 11R 219. On the substantive

appeal HELD by the Supreme Court (Finlay

CJ, Hederman, McCarthy, O'Flaherty and

Egan JJ) allowing the appeal: (1) it was well

established that the courts had jurisdiction

to order discovery as a substantive remedy,

in circumstances where a person who inad-

vertently became involved in tortious activ-

ity was in possession of information which

would assist the victim to obtain justice.

Orr

v Diaper (1

876) 4 Ch D 92; (2) the jurisdic-

tion of the court in such cases should be

exercised sparingly and should be confined

to cases where very clear proof of wrongdo-

ing has been established, and to seeking the

names and identities of wrongdoers rather

than factual information concerning the

commission of the wrong.

Norwich

Pharmacal Co and Ors v Customs and Ex-

cise Commissioners [197 4]

AC 133 referred

to; (3) in the instant case, the companies had

already established the names of the officers

in their companies who were responsible

for the issuing of the invoices in question

and, through the settlement of a number of

claims with them, had obtained statements

from them that they were unaware of the

eventual beneficiaries; and in the circum-

stances, the further claim by the companies

that they required discovery for the pur-

poses of obtaining a satisfactory explana-

tion for the payments fell far short of estab-

lishing a wrongdoing which would justify

making an order for discovery as a substan-

tive remedy.

Allied Irish Banks pic and Anor v Ernst &

Whinney (Minister for Industry and Com-

merce, Notice Party) High Court 22 Janu-

ary 1992; Supreme Court 17 July 1992

PRACTICE - DISCOVERY - THIRD PARTY DISCOVERY

- COMPLEX ACTION - SUPERVISION OF INSURANCE

INDUSTRY - VIRTUAL COLLAPSE OF MAJOR INSUR-

ANCECOMPANY - NEGLIGENCE ACTION - WHETHER

SUPERVISING GOVERNMENT DEPARTMENT RE-

QUIRED TO MAKE DISCOVERY Rules of the Superior

Courts 1986, 0.31, rr.12, 21

The plaintiffs had instituted proceedings in

negligence against the defendant, a firm of

accountants. The defendant had acted as

statutory auditors for an insurance com-

pany, the Insurance Corporation of Ireland

pic. The second plaintiff, a subsidiary of

Allied Irish Banks pic, had purchased the

entire equity in the Insurance Corporation.

Subsequently, the Insurance Corporation

suffered virtual financial collapse, and an

administrator was appointed to the com-

pany under the Insurance (No.2) Act 1983.

The second plaintiff claimed that it invested

in the Insurance Corporation in reliance on

information provided by the defendant firm,

that the defendant had been negligent in the

putting up of that information, that it acted

in breach of its duty of care to the plaintiffs,

and that consequently the plaintiff suffered

financial loss. The defendant firm denied all

these claims. In the course of the proceed-

ings, the defendant firm sought discovery of

certain documents from the Department of

Industry and Commerce (the government

department responsible for the overseeing

of insurance companies) in particular docu-

mentation concerning the acquisition by

the second plaintiff of its equity in the Insur-

ance Corporation and of the events leading

up to the appointment of the administrator

to the Insurance Corporation. HELD by

Costello J refusing the order for discovery:

the defendant had established that the docu-

ments sought existed but had not estab-

lished that they must all be relevant to the

proceedings between the parties, and the

Court had no jurisdiction to make an order

which might uncover certain documents of

relevance to proceedings. On appeal by the

defendant to the Supreme Court, a list was

prepared of the issues in the case and of

categories of documents relevant to those

issues. HELD by the Supreme Court (Finlay

CJ, Hederman, McCarthy, O'Flaherty and

Egan JJ) allowing the appeal and ordering

discovery : (1) the jurisdiction of the Court to

order discovery in respect of persons who

were not party to proceedings under 0.31,

r.21 of the 1986 Rules differed in certain

respects from that where discovery was

directed at a party to proceedings under

0.31, r.12, but the essential purpose was

the same, namely that justice be done on the

basis of a full consideration of the evidence;

(2) the differences in an application under

0.31, r.21 is that the Court must be satisfied

from evidence adduced by the application:

(i) that the notice party is likely to have

documents in its possession and that these

documents are relevant to the issues in the

case; (ii) that discovery will not be unduly

oppressive to the notice party, although the

applicant need not establish that specific

documents are in the hands of the notice

party; and (i ii) that any order for discovery to

the notice party should indicate in simple

form the relevance to the case of the docu-

ments being sought by the applicant; (3) the

High Court had taken the correct general

approach except in relation to the onus on

the defendant to establish the relevant of

documents to the instant case, though the

Supreme Court had been in a better position

to assess the relevance of the documents

sought to the issues in the proceedings hav-

ing regard to the list prepared by the defend-

ant for the appeal hearing.

Per curiam:

similar list or schedule linking the issues in

proceed i ngs to the documents sought wou Id

appear an essential proof in an action in-

volving multiple issues; (4) although com-

pliance with an order for discovery would

involve the expenditure of considerable time

by officials of the Department of Industry

and Commerce, this could not be regarded

as being oppressive having regard to the

contribution towards the administration of

justice which discovery of documents made.