Supreme Court allows appeal where documents are not in defendant's possession or power to obtain.

THE SUPREME COURT

Appeal No.: 145/1999

Record No.: 1995/9640P

Denham J.

Murphy J.

Murray J.

BETWEEN:

MARY JOHNSON

PLAINTIFF/RESPONDENT

V

CHURCH OF SCIENTOLOGY, MISSION OF DUBLIN, LIMITED

JOHN KEANE

TOM CUNNINGHAM

GERARD RYAN

DEFENDANTS/APPELLANTS

Judgment of Mrs. Justice Denham delivered on 27th day of February, 2001.

1. Proceedings

This is an appeal by the Church of Scientology, Mission of Dublin, Limited, John Keane, Tom Cunningham and Gerard Ryan, the

defendants and appellants, hereinafter referred to as the defendants, from a reserved judgment of the High Court (Unreported, High

Court, Geoghegan J., 30th April, 1999) and order dated 4th June, 1999. Mary Johnson, the plaintiff and respondent, hereinafter

referred to as the plaintiff, instituted an action against the defendants in 1995 in which she seeks, inter alia, (a) Damages for

conspiracy, misrepresentation and breach of her constitutional rights; (b) Damages for libel; (c) A declaration that the payments

made by the plaintiff to the first named defendant, its servants or agents, in the sum of £1,915.45 ought to be set aside as having

been procured by the undue influence of the first named defendant, its servants or agents; and, (d) An order directing the first

named defendant, its servants or agents, to repay to the plaintiff the sum of £1,648.06 being the balance of the said sum of

£1,915.45 due and owing to the plaintiff. The plaintiff brought a motion for further and better discovery against the defendants. On

the hearing of the motion before the High Court the main issue raised was that of sacerdotal privilege in relation to counselling notes.

The defendants claimed that there should not be disclosure of the documents on the basis of sacerdotal privilege. The High Court

rejected this claim. The issue of sacerdotal privilege has not been appealed and is not an issue before this Court. There were other

issues before the High Court relating to the nondisclosure of documents. It was submitted that the documents were in the

procurement of the defendants. It is the issue of the possession, custody or power of documents which is at the kernel of this

appeal.

2. The High Court

The High Court (Geoghegan J.) ordered that certain documents must be procured by the first named defendant. He stated:

“Of course there is another argument for non-disclosure being made. It is suggested that in the case of some of the documents

which would be material, they are no longer in the possession or procurement of the Defendants in that they have been sent to

branches of the Church of Scientology in the U.K. I do not find it credible that these documents are not procurable and I think

it likely that this is being used as a method of defeating discovery in the Irish Courts. It was the Mission of Dublin in the Church

of Scientology which the Plaintiff joined and any documents prepared in connection with her membership would seem to be

clearly in the possession and ownership of one or more of the Defendants. The argument has been made on behalf of the

Defendants that even if it were true that on request to England, documents would be returned, this does not mean that they

are within the procurement of the Defendants within the meaning of the Rules of the Superior Courts. I accept that proposition

in circumstances where the requesting party and the retaining party have no institutional link with each other and are fully at

arms length with each other. In such a case the test is whether the documents could be recovered by action and not whether

as a matter of probability they would be voluntarily handed over on a request. But I do not accept that that is the position

where two branches of the same institution are involved. There would seem to be strong prima facie evidence here that any

documents relating to the Plaintiff and in the possession of an English branch of the Church of Scientology are being held by the

English branch as agents for the Defendants or one or other of them. I will therefore direct that the documents which come

within this category must be procured by the First named Defendant and included in a Supplemental Affidavit of Discovery if not

already discovered and must be produced for inspection to the Plaintiff if requested and the Plaintiff must be given copies

thereof.

Some of the other discovery sought by the Plaintiff seems to me to be excessive. However, I am prepared to make an Order in

the terms of paragraph 2 of the Notice of Motion, that is to say; an Order directing the Defendants to make further and better

discovery of the documentation described in paragraphs 9 and 10 in the Affidavit of Dympna Murphy but limited to such of the

documents as are mentioned in those paragraphs as refer to the Plaintiff and which are not fully and adequately discovered

already. Otherwise I will make all the Orders as set out in the Notice of Motion of 3rd July, 1998.

With reference to the documents now in England, it is worth noting what the Fourth named Defendant swore in his Affidavit of

Discovery of 30th July, 1997 in paragraph 3. He said the following:-

“The counselling notes were last in my possession, power or procurement in 1995. At that time the documents were

transmitted by me to the Church of Scientology at East Grinstead, Sussex in the United Kingdom. I am now making

arrangements for this documentation to be returned to the Dublin Mission.”

This clearly re-enforces my view that those documents are within the procurement of the Defendants.”

The Order of the High Court dated 4th June, 1999 stated:

“IT IS ORDERED that within 6 weeks from the date hereof or from the date of lifting of the stay hereinafter granted whichever

date shall be the later

1) the Defendants do make available for inspection the originals of all documents being discovered and disclosed by the

Defendants pursuant to the Order of the Master made on the 11th day of April 1997.

2) the Defendants do make further and better discovery of the documentation described in paragraphs 9 and 10 of the

said affidavit of Dympna Murphy but limited to such of the documents as are mentioned in those paragraphs as refer to

the Plaintiff and originals or copies of which would routinely be procurable at the request of the Defendants and which are

not fully and adequately discovered already.

3) the Defendants do disclose to the Plaintiff those documents in respect of which the Defendants have maintained a

claim of sacerdotal privilege.

4) the Defendants do list each and every document in respect [of which] a claim to legal professional privilege is

maintained.”

3. Grounds of Appeal

Against that judgment and order, in an amended notice of appeal, the defendants have appealed on the following grounds:

“1. That the documents referred to at Paragraph 2 of the learned trial Judge’s Order would not in fact have been routinely

procurable at the request of the Defendants/Appellants, even if appropriate searches had disclosed them still to be in

existence:

2. That the learned trial Judge erred in law, or upon a mixed question of law and fact, in finding at Page 8 of his Judgment that

there were documents within the description set out in Paragraph 2 of his Order held or created by non-parties as agents for

the Defendants:

3. That the learned trial Judge erred in law so far as by Paragraph 2 of his Order he directed the Defendants/Appellants to

disclose any documents not within their possession, custody or power, but within their “procurement”, and in so far as he

required the Defendants/Appellants to disclose documents originals or copies of which would routinely be procurable at the

request of the Defendants/Appellants:”

4. Issue

The issue on this appeal is the disclosure of specific documents. The documents are those set out in the affidavit of Dympna Murphy,

dated 2nd July, 1998, at paragraph 10. The documents referred to in paragraph 10A and 10B have been discovered. At issue are the

documents mentioned in paragraphs 10C, D, E and F, of which it is deposed:

“... I am instructed that there are specific Documents which have not been discovered by the Defendants and which are in their

possession, control or power of procurement. The Plaintiff can identify certain istances (sic) where there should be documents

available.

C. The Plaintiff completed an IQ test, an Aptitude test and an OCA test in or around the 1st April 1994 at the first Defendant’s

headquarters in St. Hill, East Grinstead, England, which has not been discovered.

D. The Plaintiff completed a “Success Story” in St. Hill in or around the 1st April 1994 which has not been discovered, although

other “Success Stories” have been discovered.

E. A ‘Security Check List’ (a list of questions designed to gain information from members to ensure that they only have good

intentions towards the Organisation) which the Plaintiff completed in St. Hill in or around the 1st April 1994 has not been

discovered.

F. The Plaintiff signed an Agreement with the Sea Org. (an elite, dedicated group of staff members within the organisation who

make a commitment of one billion years to work for the Organisation) in or around the 4th April 1994 in St. Hill which has not

been discovered.”

In the affidavit of Gerard Ryan, made on behalf of the defendants, on 19th October, 1998 in relation to the said paragraphs 10, C, D,

E and F, he deposed as follows:

“C. The defendants do not have these documents.

D. The defendants do not have these documents in their power or possession.

E. The defendants do not have these documents in their power or possession.

F. Again this is not in our possession or procurement.”

5. Submissions of the Defendants

Mr. James Connolly, SC, counsel for the defendants, submitted that: (a) a party must disclose all relevant documents that either are

or have been in his physical possession whether he has, or has previously had, a proprietary interest in them or not, or; (b) although

they are not at present in his physical possession, are, or formerly were, under his control, either by his having, or having had, some,

though not necessarily the entire, proprietary interest in them, or by his having, or having had, absolute control over them. Despite

the reference by the learned trial judge to “procurement” he submitted that there is no such provision in the Rules of the Superior

Courts.

Counsel referred to Bula Ltd. v. Tara Mines Ltd.[1994] 1 I.L.R.M. 111 at p. 113 wherein it was stated that there were three distinct

concepts: possession, custody and power; that the three concepts are to be considered disjunctively, that is any document to which

any one of them applies must be listed. He submitted that a party is not obliged to take steps which would place documents in his

power or possession at some stage in the future, but which are not in his power at present; Lonrho Ltd. v. Shell Petroleum Q.B. 358

at pp. 375-376. He submitted that usually documents in a party’s power are those which are his property but which are not in his

physical possession. Even where documents are not a party’s property, and are not in his physical possession, they may still be liable

to disclosure and production if he has absolute control over them. The only established category of documents liable to disclosure on

this ground is documents belonging to a company which is under the unfettered control of and therefore the alter ego of a director

who is a party to the proceedings; Yates v. Ciba Geigy Agro Ltd. (Unreported, High Court, Barron J., 29th April, 1986), Horgan v.

Murray [1999] 1 I.L.R.M. 257 at pp. 259-260. He submitted that documents in the possession or custody of a subsidiary company are

not necessarily in the power of its parent company; Lonrho Ltd. v. Shell Petroleum [1980] Q.B. 358. He submitted that otherwise

documents that are not a party’s property are not in his power. Mere rights of inspection which a party may enjoy over other peoples’

documents are usually conferred for a specific purpose, which does not include the defence of the inspecting party’s personal

interest.

Counsel submitted that the two cases that appear to recognise a separate concept of procurement are Northern Bank Finance v.

Charlton (Unreported, High Court, Finlay, P., 26th May, 1977) and Yates v. Ciba Geigy Agro Ltd. (Unreported, High Court, Barron J.,

29th April, 1986). He submitted that if the sole basis of the decision in Northern Bank Finance v. Charlton was that the directors of

the non-party company from whom the documents were to be procured were agents of the plaintiff, the decision was incorrect and

that documents of one company are not within the power of another, wholly unrelated company, merely because they share a

director who has a right to inspect documents belonging to the first company in his capacity as its director; the decision may,

however, be justified on the ground that in that case the non-party company appears to have been largely controlled by the plaintiff

and, in such circumstances, its documents might be considered to have been in the power of the plaintiff. He referred to Yates v.

Ciba Geigy Agro Ltd. and to Barron J., at pp. 3-4 of his judgment, where he held that documents in the possession of the defendant’s

parent company were within its “procurement” in that if the defendant sought them it would probably be supplied with them, and it

was admitted that the documents would be made available to the defendant for the purpose of the trial. He argued that Barron J.

appeared to think that “procurement” was a distinct head of control for the purpose of the rules, additional to “possession or power”.

However, no authority was cited other than Northern Bank Finance v. Charlton and it was submitted there is no authority for it in the

rules.

Counsel submitted that there were a number of High Court decisions inconsistent with Northern Bank Finance v. Charlton and Yates

v. Ciba Geigy Agro Ltd. He referred to Bula Ltd. (in Receivership) v. Tara Mines Ltd. (Unreported High Court, Murphy J., 11th January,

1991); and Murphy v. J. Donohoe Ltd. [1996] 1 I.R. 123, at pp.130-131 cited with approval a passage from Halsbury’s Laws of

England (4th edition), Volume 13, paragraph 39. Counsel submitted that the decisions Northern Bank Finance v. Charlton and Yates v.

Ciba Geigy Agro Ltd. appear to be inconsistent with the subsequent decision of the Supreme Court in Bula Ltd. v. Tara Mines Ltd.

[1994] 1 I.L.R.M. 111 where the Court, referring to the terms used in the rules, held that a party was only obliged to disclose

documents in his “possession, custody or power”. He referred to Quinlivan v. Conroy [1999] 1 I.R. 271 where Kinlen J. at p. 275,

referring to Bula Ltd. v. Tara Mines Ltd. specifically noted that there was no such concept as “procurement” in the rules. Counsel

referred to the observation in the Supreme Court of O’Flaherty J., in the same case at p. 281, that even if the Assistant Commissioner

who endorsed an extradition warrant was in some sense the “agent” of the British authorities, this “agency” did not confer on the

Commissioner an enforceable legal right to obtain the documents from those parties, consequently they were not within his power.

Counsel also referred to the judgment of this court in Irish Nationwide Building Society v. Charlton (Unreported, Supreme Court, 5th

March, 1997) where Murphy J. referred to the plaintiffs having obtained copies of correspondence between their solicitors and

solicitors for a non-party from the latter solicitors and added at p.7 of his judgment that “The plaintiffs clearly were not bound to

obtain such documentation...”

In relation to the issue of agency, counsel submitted that a document held by the agent of a party is normally the party’s property if

it was created in the course of the agency and for the purpose thereof. He submitted that to this there are exceptions. For example,

a contract of agency may confer the proprietary interest on the agent.

Counsel submitted that in this case there is no corporate relationship at all between any of the English church corporations and any

of the defendants. None of the English church corporations has any legal interest in the first-named defendant, their only link is that

they are obliged to propagate the same belief system. Even if they had a corporate link, which they do not, only if the controller is

the party does it have the documents of the entity controlled in its power, it can have no power over documents that have never

been in its physical possession and that belong to the controller. A subsidiary’s documents may be in the power of its parent, but the

parent’s documents cannot be in the power of the subsidiary. He submitted that the English church corporation are not agents of the

defendants generally. They were not, specifically, agents of the appellants for the purpose of the creation or holding of any

undisclosed document in this case and no such documents were created in the course or for the purpose of such an agency. There

were documents created in the course of the relationship between the second, third and fourth named defendants, on the one hand,

and the plaintiff on the other, which are in the custody of the English church corporations, but no objection on the ground of this

custody was ever taken to the disclosure or production of these documents, and they have now all been disclosed.

Counsel submitted that a court may not go behind the oath of a party that he does not have certain documents in his possession,

custody or power merely because, for whatever reason, it concludes that it is probable that the parties have more documents. The

court must be satisfied by specific evidence that the party’s statement is incorrect, and he referred to Phelan v. Goodman [2000] 2

I.L.R.M. 378.

Counsel pointed out that the document sought as being in the procurement of the defendants in that they or copies of them allegedly

would be supplied by the English church corporation on request are an I.Q. test; an OCA test; an aptitude test, allegedly completed

by the plaintiff in or about 1st April, 1994 at East Grinstead; a success story allegedly completed by her in or about the same time; a

security check-list allegedly prepared by her in or about the same time; a project to prepare sheet allegedly completed by the plaintiff

at East Grinstead on or about 4th April, 1994 pursuant to her intention to join the CSEA Organisation and an alleged agreement dated

4th April, 1994 between the plaintiff and the CSEA Organisation. Counsel submitted that, contrary to the learned trial judge’s findings

in his judgment, none of these documents was ever in the possession of the defendants or was ever their property or indeed would

such documents or copies of them be furnished to the defendants on request nor, if they exist, were they in any sense created in

any capacity as agents of the defendants or any of them. Nor can the defendants state whether they ever existed, or control, or

authorise, a search for them in England, or give an account of their whereabouts.

Counsel submitted to the court that it was important that the scope of disclosure be limited. He argued that the main reason for such

limitation is that, if a party fails to comply with an order for discovery, he or she may, if a defendant, have his or her defence struck

out and be placed in the same position as if he or she had not defended. This may be acceptable so far as the documents are in his

or her physical possession so he or she has direct control over them or has a proprietary interest which, if need be, the court can

require him or her to enforce. However, it is not satisfactory for parties here, including the three personal defendants, who can have

their defence struck out because they are in no position to comply directly with the order. He submitted that to preclude a defendant

from defending proceedings because of the alleged default of some person over whom he has no control would be a denial of a

defendant’s constitutional right to fair procedure. He submitted that this is the reason why the fact that documents, or copies

thereof, which are in the possession of a foreign entity of a similar description to a party resident within the jurisdiction which might

be supplied in the ordinary course by the foreign entity to the resident party cannot place the resident party under an obligation to

obtain the documents. If a foreign organ is under the control of the resident party the documents may well be within the party’s

power but otherwise it would be unfair and unconstitutional to make the party’s right to defend an action depend on its ability to

obtain documents from a person outside the jurisdiction whom he could in no way control.

Counsel submitted that the point at issue is of great importance over and above the facts of this case. A rule that limits discovery to

documents that are or have been the property of a party, or are or have been in his or her physical custody, or are under his

absolute dominion where no other person has a legal right to interfere with disclosure, sets clear limits to the duty to disclose. A rule

that requires a party to “procure” documents that are not within these categories on the other hand is potentially boundless. It

requires searches to be undertaken by people who are not under the control of the party for documents that the party has never

seen and has no right to obtain. He referred to Lonrho Ltd. v. Shell Petroleum [1980] 1 W.L.R. 627 at p. 636, per Lord Diplock.

Counsel submitted that the learned trial judge appears to have believed that it was argued for the defendants that there were

relevant but undisclosed documents that were no longer in the possession of the defendants in that they had been sent to branches

of the church in the United Kingdom. However, he submitted, no such argument was ever made and there are no such documents and

there was no evidence before the court supporting the learned trial judge’s conclusion that there were such documents. Further, he

said, the English church bodies are not branches but separate corporate entities.

Counsel submitted that the learned trial judge appears to have believed that documents were being shifted out of the jurisdiction to

avoid discovery. He said there was no evidence before the court for this conclusion. He submitted that that is not so and that the

existence of any documents, including in particular those included in the counselling folder, which had been transferred abroad, have

been disclosed.

6. Submissions of the Plaintiff

Mr. John Hennessy, BL, counsel for the plaintiff, submitted that the defendants had made lengthy submissions on the subject of

“possession, custody or power” much of which, he submitted, was irrelevant to the matters under appeal. He argued that the net

issue is whether the learned trial judge was correct in law in ordering the defendants to make discovery of certain specific documents

which are mentioned in paragraph 10 of the affidavit of Dympna Murphy recited above and which refer to the plaintiff, originals or

copies which would routinely be procurable at the request of the defendants and which are not fully and adequately discovered

already. He distinguished Bula Ltd. v. Tara Mines Ltd. [1994] 1 I.L.R.M. 111 and said that the issue of interpretation is still open. He

pointed out that the statement of law by O’Flaherty J. in Quinlivan v. Conroy [1999] 1 I.R. 271 is obiter dicta. He submitted that to

make an enforceable legal right an absolute prerequisite for documents to fall within the power of a party under Order 31 Rule 12 of

the Rules of the Superior Courts would be too restrictive. In particular it would risk permitting organisations with operations outside

the State to evade discovery of relevant documents otherwise obtainable by ensuring that they originated and remained with the

foreign operation. He submitted that this was the thinking behind the order of the learned High Court judge and that it was correct.

He submitted that the learned trial judge recognised in his judgment that, notwithstanding the formal corporate structures adopted by

the Church of Scientology in various jurisdictions, “two branches of the same institution are involved”. He referred to references in

affidavits to the first-named defendant and its sister organisation operating as a single organisation. He referred to statements in

documents relating to original documents being sent to England, to original documentation being requisitioned from England, and

contact being made about documentation with England. And, finally, he referred to the affidavit by the fourth defendant, quoted by

the learned High Court Judge at page 9 of his judgment, where it was said:

“The counselling notes were last in my possession, power or procurement in 1995. At that time the documents were transmitted

by me to the Church of Scientology at East Grinstead, Sussex in the United Kingdom. I am now making arrangements for this

documentation to be returned to the Dublin mission.”

The Court was informed that there was no dispute as to the obligation to produce counselling notes.

Counsel submitted that the nature of the relationship between the Irish and the English branches of the Church of Scientology is akin

to a parent/subsidiary relationship between corporations. He argued that the relevant case law is set out in the judgment of Barron J.

in Yates v. Ciba Geigy Agro Ltd. (Unreported, High Court, Barron J., 29th April, 1986). In that case the learned trial judge found that

discovery could be ordered in respect of documents in respect of the parent company of the defendant on the grounds that

“Possession alone is not the test. Documents may be in the power or procurement of a party even though they are not in his

possession” and “In the present case, there is no reason to suppose that a request for such documents by the defendant would be

refused.”

Counsel pointed out that the Rules of the Superior Courts make no reference to the concept of procurement. He pointed out,

however, that one of the defendants used the term “procurement” in one of the affidavits.

Counsel referred to the argument in relation to agency. The fact that it was submitted that even if the documents in question are at

present outside the control and possession of the defendants, the English branch of the Church of Scientology was acting as agent

for the first named defendant when the relevant documents were created. He referred to the finding of agency by the learned trial

judge.

Counsel submitted that the documents which the plaintiff believes to be in the possession or power of a United Kingdom branch of the

Church of Scientology were, in fact, created as a result of the plaintiff’s attendance at courses delivered to her by the United

Kingdom branch acting as agent for the first named defendant. Counsel submitted that the agency is demonstrated by a number of

facts, not least of which being the fact that one of the activities undertaken by the plaintiff in the United Kingdom branch was a

continuation of a course already commenced with the first named defendant in Dublin. Further, it was the plaintiff’s case that she

joined the first named defendant and that when she attended courses run in the United Kingdom she did so in her capacity as a

member of the first named defendant. As a result the United Kingdom branch of the Church of Scientology having no other basis for

having an interest in the plaintiff acted as agent of the first named defendant in delivering such courses to the plaintiff.

Counsel submitted that documents held by an agent and created in the course of the agency and for the purpose thereof are the

property of the principal. He submitted that this places the documents in question in the ownership of the first named defendant,

giving it a legally enforceable right to obtain them and thereby rendering them discoverable under Order 31 Rule 12 and the decision of

this honourable Court in Bula Ltd. v. Tara Mines Ltd. [1994] 1 I.L.R.M. 111. Counsel submitted that there is no merit in the

defendant’s submissions relating to the position in which they find themselves if they fail to comply with the order of the High Court.

The order limits the discovery obligation to those documents which would be routinely procurable by the defendants. At the hearing

held to clarify the scope of the order the learned trial judge made it clear that he would be very sceptical of any assertion by the

defendants that any of the documents covered by his order had been bona fide destroyed. It is clear that documents routinely

procurable can, by definition, be obtained and produced and that therefore the defendants must be prepared to face the full

consequence of non-compliance with the order of the High Court if they fail to produce the documents.

7. Law

Order 31, Rule 12(1) of the Rules of the Superior Courts states:

“Any party may ... apply ... for an order directing any other party to any cause or matter to make discovery on oath of the

documents which are or have been in his possession or power, relating to any matter in question therein.”

In the said Rules Appendix C, No. 10, paragraph 7 sets out the form of affidavit provided;

The averment is:

“According to the best of my knowledge, information, and belief, I have not now, and never had in my possession, custody or

power, or in the possession, custody or power of my solicitors or agents, solicitor or agent, or in the possession, custody or

power of any other persons, or person on my behalf, any deed, ... relating to the matters in question in this suit, or any of

them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set

forth in the ... schedules hereto.”

8. Decision

In relation to the discovery of documents the law evokes three concepts, possession, custody and power; see Order 31, Rule 12(1)

Rules of the Superior Courts and Appendix C, No. 10, paragraph 7. In Bula Ltd. v. Tara Mines Ltd. [1994] 1 I.L.R.M. 111 at p. 113,

O’Flaherty J. stated:

“I believe that the three concepts come into play, viz. possession, custody and power and they are to be considered

disjunctively.”

“Power” was defined by O’Flaherty J. at p.113 as:

“A document is within the power of a party if he has an enforceable legal right to obtain from whoever actually holds the

document inspection of it without the need to obtain the consent of anyone else.”

This statement was reinforced in Quinlivan v. Conroy [1999] 1 I.R. 271, at p. 281, when O’Flaherty J., in a judgment agreed to by the

four other members of the Court, referred to the fact that an enforceable legal right to obtain the documents is necessary, stating:

“Nor would the relationship (if it existed) give to the defendants the enforceable legal right to obtain those documents which,

as has been held by this Court in Bula Ltd. v. Tara Mines [1994] I.L.R.M. 111, is necessary to establish that documents are

within the “power” of a party or person for the purposes of O. 31, r.12 of the Rules of the Superior Courts, 1986.”

Thus a document to be discovered must be in the possession, custody or power (in accordance with the enforceable legal right test)

of a party.

In this case the learned High Court Judge in his judgment directed that the documents now in issue be procured by the first named

defendant and be produced for inspection to the plaintiff. That direction was based on the premise that the documents in question

were in the possession of the English Church of Scientology Corporation as agents of the first named defendant. In effect the learned

High Court Judge was holding that the documents were within the power of the first named defendant because of an agency

relationship with the English Church of Scientology and for that reason could be procured by them.

As to the matter of agency, the first named defendant is sued in its capacity as a corporation. On the basis of the facts adduced in

this application the first named defendant is a separate corporate body to the English Church of Scientology corporation. While it has

been shown that both corporations work towards the same goal and that they have co-operated in matters of mutual interest, it has

not been established that, on the facts of this case, the English corporation acted as the agent for the first named defendant in

relation to the documents at issue. This is not to say that the first named defendant and the English Church of Scientology must be

treated in all circumstances as if they were wholly separate and distinct corporate entities operating at arms length. The Court is not

concerned with the general relationship between those two entities but only with their relationship so far as it is relevant to the

documents in issue in this discovery application. The documents now in issue between the parties originated in England, were created

by the English Church of Scientology and have never been in Ireland. It has not been established by the plaintiff that the English

corporation created or has custody of those documents as the agent for the first named defendant. Indeed, in this case the evidence

is that the English corporation acted independently and not as agent for the other in respect of those documents. Accordingly, the

plaintiff has not established that the first named defendant had an enforceable legal right to obtain the documents in question from

the English corporation. The fact that the English corporation may have acted as the agent of the first named defendant in other

specific situations does not confer on the first named defendant an enforceable right to obtain the documents in question and they

therefore are not within its power.

A party is only obliged to disclose documents in his possession, custody or power. To this rule there may be rare exceptions.

However, these rare exceptions are examples of the judge, in his or her discretion in the circumstances of a particular case, making a

determination on the facts. Such exceptions may be seen in the cases of Northern Bank Finance v. Charlton (Unreported, High Court,

Finlay P., 26th May, 1977) and Yates v. Ciba Geigy Agro Ltd. (Unreported, High Court, Barron J., 29th April, 1986). However, the facts

of neither are on all fours with the facts of this case and may be distinguished.

The decision of Finlay P. in Northern Bank Finance v. Charlton (Unreported, High Court, Finlay P., 26th May, 1977) may be seen as a

practical solution to a special problem rather than a novel interpretation of the relevant rules. What the learned President said at

page 19 of the transcript of the judgment was as follows:-

“I am therefore satisfied that within the meaning of the principle applicable to an affidavit of discovery I must at this stage at

least decide prima facia (sic) that these documents are within the procurement of the plaintiff company and that there is not

any reason to believe that if the plaintiff company in pursuance of the obligations of the directors of J.G. Mooney & Company

properly have to them as their nominees requested the handing over even though it might be on a returnable basis of these

documents that that request would be refused. If it is a further application may have to be made to me and different

considerations may apply depending upon the grounds for that refusal.”

It will be appreciated that the learned President was dealing with a particular document which he believed - having regard to the

relationship between the plaintiff company and the company is whose possession it was - could be obtained for the asking. But he

made no concluded finding to that effect and, in the terms quoted, effectively reserved the right to the plaintiffs to return to the

Court to explain whether the document was forthcoming.

It may therefore have been an exception in practice rather than an exception in principle. Certainly the facts are readily

distinguishable from the present case. Non-party discovery will resolve any such problems in the future where it relates to documents

within the jurisdiction.

In Yates v. Ciba Geigy Agro Ltd. (Unreported, High Court, Barron J., 29th April, 1986) Barron J. referred to Northern Bank Finance v.

Charlton (Unreported, High Court, Finlay P., 26th May, 1977) and at p. 3 of the unreported judgment stated:-

“In the present case there is no reason to suppose that a request for such documents by the defendant would be refused.

Indeed counsel for the defendant has admitted they will be made available to him for the purposes of the trial and that the

defendant’s defence. Prima facie such documents must be regarded as being available to the defendant if they are requested.”

Thus this too may be regarded as a practical solution to a particular set of circumstances rather than an exception in principle. I am

satisfied that the relevant legal principles were correctly set out by O’Flaherty J. in Bula Ltd. v. Tara Mines Ltd. [1994] 1 I.L.R.M. 111

and Quinlivan v. Conroy 1 I.R. 271.

9. Conclusion

Documents which are in the possession, custody or power of a party must be discovered. A document is in the power of a party when

that party has an enforceable legal right to obtain the document.

The documents in issue in this case are not in the possession, custody or power of the defendants and the defendants have no

enforceable legal right to obtain them. Accordingly, the plaintiff is not entitled to the discovery sought. I would allow the appeal.