High Court grants inspection order for documents expressly averred to exist in defendant's affidavit.
Ireland (IE)
Legislator summary
AI generatedThe High Court granted an order under O.31, r.18 RSC requiring defendants to produce specific documents for inspection. While the plaintiff failed to prove the existence of several documents, the court found that for documents A, C, D, E, F, I, L, M, and N, their existence was expressly averred in the defendants' affidavit. Consequently, the court ruled that inspection was necessary to fairly dispose of the proceedings regarding these specific items.
Legislator headnote
AI generatedO.31, r.18 RSC; O.31, r.18(2) RSC: An order for inspection requires actual knowledge of the documents' existence, but where existence is expressly averred in an affidavit and inspection is necessary for a fair disposal, the order must be granted.
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AI generatedFull text
[2019] IEHC 136
THE HIGH COURT
2017 No. 636 S
Between:
PROMONTORIA (ARAN) LIMITED
PLAINTIFF
– AND –
JOHN ARCHBOLD & GERRY WALSH
DEFENDANTS
JUDGMENT of Mr Justice Max Barrett delivered on 5th March, 2019.
1. Promontoria seeks an order under O.31, r.18 RSC directing the defendants to produce for inspection certain documents relied upon
in, but not exhibited to, an affidavit sworn for the defendants in these proceedings (the ‘Affidavit’). As Barron J. observes in Holloway
v. Belenos Publications Ltd (No 2) [1988] IR 494, 496, “[T]he essence of an order for inspection is knowledge of the existence of the
documents to be inspected”. That is a high threshold: supposition/inference does not suffice; actual knowledge of actual existence is
necessary for an inspection order to issue. The defendants claim that if one looks to the Affidavit and brings Holloway to bear, the
plaintiff does not meet the threshold for the order now sought. In the table below, the court lists the documents sought, identifies
the paragraphs in the Affidavit in which the document is said to be relied upon, and applies the Holloway standard. Thereafter the
court brings O.31, r.18(2) to bear.
Documents Sought Para. Conclusion
A Data access documents. 3 Existence expressly averred to.
B Report summarising issues 5 Averred that report would be sought. That
affecting title. does not mean it was sought.
C Loan settlement proposal. 6 Written elements of same identified in
affidavit.
D Sworn Statements of Affairs. Existence expressly averred to.
E Title Report. 7 As above,
F Deed of Assurance. 9 As above.
G UB valuation report or No indication that valuer prepared a written
recommendations. report.
H Summary of attendance &/o No indication that attendance &/o minutes
minutes of meeting of 1.7.14. exist.
I Letter of 14.10.14 re. €2m 10 Existence expressly averred to.
settlement of funds.
J Summary of attendance &/o No indication that attendance &/o minutes
minutes of meeting of exist.
14.10.14.
K UB offer of settlement. No indication that UB terms were in writing.
L Letter of 14.10.14 re. €2m Existence expressly averred to.
settlement proposal.
M Letter of 22.10.14 re. As above.
settlement of funds within 4
weeks.
N Letter &/o correspondence of 11 Existence of correspondence expressly
mid-November 2014. averred to.
O Minutes of telephone No indication that minutes exist.
conference of mid-November
2014.
2. The documents known to be in existence and referred to at A, C, D, E, F, I, L, M and N have been relied upon in, but not exhibited
to, the Affidavit. The court, mindful of O.31, r.18(2), is of the opinion that inspection of the said documents is necessary for disposing
fairly of the within proceedings. It will therefore grant the order sought in respect of those documents.