Court of Appeal dismisses appeal against strike-out order for failure to prove contract or misrepresentation.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2024/161

2025/41

Neutral Citation Number [2025] IECA 193

Faherty J. Allen J. Meenan J.

BETWEEN/

MICHAEL LEAHY

PLAINTIFF

- AND –

OSB GROUP LIMITED, SURTECO GMBH AND EIRFOAM LIMITED

DEFENDANTS

JUDGMENT of Mr. Justice Allen delivered on the 26th day of September, 2025

Introduction

1. In 2003 or 2004 the plaintiff, Mr. Michael Leahy, had an idea for a new business manufacturing laminated worktops. He acquired premises, bought a specialised machine, and engaged a manager. He had an established relationship with the first defendant which was a supplier of laminated boards. Key to the success of the business was his ability to source edgings that would match the laminate surface.

2. The second defendant is a German company which manufactures thermoplastic edgebands. The third defendant is the second defendant’s Irish representative.

3. It is common case that in 2004 and 2005 there were dealings between Mr. Leahy and the second and third defendants. It is common case that it was hoped and perhaps expected by all that the second defendant would be able to provide suitable edgings. Mr. Leahy’s case

– in very broad terms – is that the second and third defendants promised that they could and would provide him with what he wanted and failed to do so. In 2010 he sued the defendants for damages.

4. The starting point of the second and third defendants’ defence is that they – in particular the second defendant – endeavoured to identify and source edgings which would be satisfactory to Mr. Leahy with a view to securing orders for edgings but that they are not legally liable for any failure – if any – to provide the edgings which Mr. Leahy wanted. They deny that there was any contract with Mr. Leahy or that they made any of the representations or misrepresentations which they are alleged to have made or that they gave any of the assurances they are alleged to have given. They deny that the losses claimed – which is purely economic loss – is recoverable in law. And they claim that the losses claimed are unfounded and speculative; and grossly exaggerated, unreasonable, unforeseeable and irrecoverable.

5. Mr. Leahy – who represents himself – has twice applied to the High Court for orders pursuant to O. 19, r. 28 of the Rues of the Superior Courts striking out the second and third defendants’ defence. His first such application was refused by Dignam J. on 13th June, 2024 for the reasons given in a written judgment delivered on 7th June, 2024 ([2024] IEHC 346). The second was refused by Oisín Quinn J. on 6th February, 2025 for the reasons given in an ex tempore judgment delivered on the same day. The judgment and order of Dignam J. also dealt with an application to strike out the second and third defendants’ defence for failure to comply with an order for discovery. This judgment deals with Mr. Leahy’s appeals against both judgments and orders.

The pleadings

6. The action was commenced by plenary summons issued on 11th March, 2010 by which the Mr. Leahy claimed damages for negligence, breach of duty, breach of contract, negligent misstatement and misrepresentation.

7. The statement of claim was delivered on 20th January, 2011. It commenced with a brief explanation of Mr. Leahy’s business plan and his purchase – on 6th April, 2004 – of his specialised BAZ machine, and moved on to a narrative of Mr. Leahy’s dealings or alleged dealings with each of the defendants. The statement of claim suggested that Mr. Leahy’s first engagement with the second defendant was in May, 2004 when – by arrangement with the third defendant – he travelled to the second defendant’s factory in Germany. This meeting was described by Mr. Leahy as a specification meeting of the edgings he required for production. The case pleaded was that each of the defendants was made aware of Mr. Leahy’s requirements and that the second defendant specified the edgings that would be suitable.

8. In June, 2004 – according to the statement of claim – Mr. Leahy placed an order with the first defendant for edging and other material, for delivery in September, 2004. The other material was delivered in November, 2004, but not the edgings. In February, 2005 “the edgings as specified” were delivered but these – it was said – were not fit for purpose. The second defendant – it was said – admitted in April, 2005 that the edgings were not fit for purpose but refused to take responsibility for it.

9. A further meeting was arranged for 1st May, 2005 in Germany. Variously it was pleaded that this meeting was farcical and that the second defendant agreed to change the specification. On 18th May, 2005 – it was said – the proposed new edging was tested and it was agreed that seven of the most important décors would be matched within two to three weeks and delivered within two weeks thereafter to get Mr. Leahy into reduced production; and the balance would follow shortly after to get him into full production. The edgings – it was said – were never delivered and:- “Arising from the failure of the defendants and each of them to perform the contract to specify correctly the edgings required for the manufacturing process of the plaintiff, to supply correct edgings on time, and to supplying edgings unfit for purpose, the plaintiff has suffered substantial losses and damages.”

10. The statement of claim claimed €2.8 million for loss of profits, €1.7 million for loss of investment, unquantified damages, interest and costs.

11. The second and third defendants’ defence was delivered on 4th October, 2011. It commenced with a series of pleas:-

(a) That the statement of claim failed to disclose any legally sustainable cause of action against the second and third defendants;

(b) That those defendants – there having been no contract between the plaintiff and those defendants – had no liability to the plaintiff;

(c) That those defendants owed no duty of care to the plaintiff;

(d) That those defendants were not guilty of any misrepresentation;

(e) That the losses claimed comprised pure economic loss which was not recoverable in Irish law;

(f) That the losses claimed were unfounded and speculative, alternatively were grossly exaggerated, unreasonable, unforeseeable and irrecoverable.

(g) That the plaintiff was the author of his own misfortune.

12. The defence went on (in 58 paragraphs over twelve pages) to plead that those defendants were strangers to Mr. Leahy’s dealings with the first defendant, and to deny the allegations made against them. The fact of the meeting in Germany in May, 2004 was admitted, but not the alleged purpose which was – according to the second and third defendants – an exploratory visit. The defence addressed in detail Mr. Leahy’s pleas as to the detail of that meeting. The second and third defendants pleaded that the losses complained of were due in whole or in part to Mr. Leahy’s contributory negligence in failing to make a business plan in respect of appropriate facilities and premises, and to adequately research his suppliers, purchasers and production techniques.

13. The defence also admitted the fact of the meeting in Germany on 18th and 19th May, 2005 but denied that the agreement then made was that pleaded in the statement of claim. The defence set out in detail what the second and third defendants contended was then agreed

– as to the edgings previously supplied and the edgings that the second defendant might be asked to supply in the future – and pleaded that any liability, if any (which was denied) that the second and third defendants might have had was fully and finally compromised and settled by the agreement made at that meeting.

14. Paragraph 56 of the defence listed nineteen particulars of alleged contributory negligence directed to the purchase by Mr. Leahy of his machine; his skill, knowledge and training in the operation of the machine and the manufacturing process, and so forth.

The discovery order

15. Mr. Leahy is a seasoned and determined litigant. His paperwork and oral argument – and his analysis of the defendants’ paperwork – are extremely detailed. Following the initial exchange of pleadings, there were applications for discovery.

16. I pause here to say that the premise of the discovery applications – on all sides – must have been that the documents identified were relevant to the issues disclosed by the pleadings, and that discovery was necessary for the fair disposal of the proceedings and for saving costs. This was utterly inconsistent with the premise of Mr. Leahy’s later application for an order pursuant to O. 19, r. 28 – as it stood prior to 22nd September, 2023 – striking out the second and third defendants’ defence on the ground that it disclosed no reasonable answer to the claim and that the defence was shown by the pleadings to be frivolous and vexatious.

17. On 22nd October, 2018, on Mr. Leahy’s motion for discovery by the second and third defendants – by all accounts with a view to resolving a dispute as to the articulation of the relevant categories of documents – the High Court was asked to make an order for discovery by the second and third defendants of “all documents in [their] possession power or procurement relating to the said plaintiff in person.” No doubt this simplification was thought at the time to be a convenient way of resolving the impasse but – at least with the benefit of hindsight – it had the capacity to capture documents which were not obviously relevant to the issues between the parties.

18. For example, one of the very few agreed facts was that in May, 2004 Mr. Leahy travelled to the second defendant’s factory in Germany. To be sure, the purpose and outcome of that meeting were hotly contested but the fact of the meeting was not.

19. By the order of 22nd October, 2018 the second and third defendants’ affidavit of discovery was to be sworn by Mr. Karl Heinz Krull and this was done on 20th November, 2018. Mr. Leahy had previously been provided – in three indexed tranches – with copy documentation and the First Schedule, First Part of Mr. Krull’s affidavit was intended to mirror those tranches.

20. On 22nd October, 2018 – by leave of the High Court, by consent – Mr. Leahy delivered an amended statement of claim in which inter alia the claim for loss of profits was increased to €21 million. An amended defence was delivered on 11th April, 2019.

The first motion

21. By notice of motion filed on 27th July, 2022 Mr. Leahy applied for:-

(1) An order pursuant to O. 31, r. 21 to strike out the second and third defendants’ defence by reason of their failure to comply with the order for discovery made on 22nd October, 2018, and/or

(2) An order pursuant to O. 19, r. 28 to strike out the second and third defendants’ defence on the ground that it disclosed no reasonable cause of action or answer and was shown by the pleadings to be frivolous or vexatious.

22. That motion was grounded on an affidavit of Mr. Leahy filed on 27th July, 2022 which ran to 45 pages, and 78 pages of exhibits. It was supplemented by a supplementary affidavit filed on 19th August, 2022 which ran to nine pages, with another 87 pages of exhibits. Most of what Mr. Leahy had to say in his first affidavit was directed to the alleged inconsistency of the pleas in the second and third defendants’ defence with what was said to be shown by the documents and correspondence which he exhibited. His second affidavit in the main addressed the alleged shortcomings in the second and third defendants’ discovery.

23. The motion was answered by an affidavit of the second and third defendants’ solicitor, Mr. Hugh O’Neill, filed on 22nd December, 2022 which ran to 7 pages and 41 pages of exhibits. In the time between the filing of the motion and the filing of the replying affidavit, Mr. Leahy had filed five more affidavits in relation to various other motions. The High Court order of 13th June, 2024 shows that in considering the motion, the judge had regard to all seven of Mr. Leahy’s affidavits.

The Order 19 limb

24. While is not clear from the order of 13th June, 2024 the motion was heard over two full days, the first devoted to what was referred to in argument as the “discovery limb” and the second to what was described as the “O.19 limb”. The chronology attached to the written submissions filed by the respondents to the appeal suggests that the first hearing date was 16th January, 2023 and that the hearing was not resumed until 16th February, 2024 but I do not believe that that can be correct. The High Court Search shows that a motion was heard on 7th February, 2024 and adjourned to 16th February, 2024, when judgment was reserved. In any event, by the time the O. 19 limb was heard a new O. 19, r. 28 had been substituted for the rule as it had stood at the time the motion was issued but the judgment suggests that the judge was not addressed on the consequence of the amendment and he approached the case on the basis of the “old” O.19, r. 28 and the inherent jurisdiction to strike out actions – or, in principle, if more unusually in practice, defences – on the ground that they have been shown to be bound to fail.

25. For the avoidance of doubt, nothing turns on the fact that the judge dealt with the motion on the basis of the law as it stood prior to the instruction of the new O. 19, r. 28 on 22nd September, 2023. As Simons J. later explained in a judgment delivered on 13th August, 2024 in O’Malley v. National Standards Authority of Ireland [2024] IEHC 500 – which was approved by this Court in Meehan v. Ireland [2025] IECA 59 – the effect of the amendment was to codify the existing jurisprudence.

26. With commendable brevity, the judge set out the background to the motion in less than a page and a half. He identified the meeting in Germany in May, 2004 – that is to say the substance rather than the fact of the meeting –as central to Mr. Leahy’s claim.

27. Mr. Leahy’s argument that the second and third defendants’ defence disclosed no reasonable answer, and could be shown by the pleadings to be frivolous or vexatious, was swiftly dispatched. The defence – said Dignam J. – put Mr. Leahy on proof of the facts as he had alleged them and it was impossible to see how putting the plaintiff on proof did not amount to a reasonable answer. The judge noted, moreover, that the second and third defendants had pleaded that Mr. Leahy had failed to mitigate his losses and was guilty of contributory negligence. Taking these pleas at their height, and assuming that the second and third defendants would establish them – which the judge, correctly, said that he was bound to do – they disclosed a reasonable answer or a reasonable partial answer to Mr. Leahy’s claim.

28. As to Mr. Leahy’s reliance on what was referred to as the inherent jurisdiction of the court – the jurisdiction replicated in the new O. 19, r. 28 to strike out a defence or any part of a defence on the grounds that it is an abuse of process, or bound to fail, or has no reasonable chance of succeeding – Dignam J. found that the applicable principles were well established, most recently by the judgments of this Court in Scotchstone Capital Fund Ltd. v. Ireland [2022] IECA 23 and McAndrew v. Launceston Property Finance DAC [2023] IECA 43.

29. The judge identified one of the key differences between the old O. 19, r. 28 jurisdiction – which is now to be found in O. 19, r. 28(2)(i) – and the inherent jurisdiction – now to be found in O. 19, r. 28(2)(ii), (iii) and (iv) – as the ability of the court to engage to a very limited extent with the evidence. He considered the authorities particularly relied on by Mr. Leahy – Keohane v. Hynes [2014] IESC 66 and Ewing v. Ireland [2013] IESC 44 – and quoted extensively from the judgment of Clarke J. in Salthill Properties Ltd. v. Royal Bank of Scotland [2009] IEHC 207. In Salthill Properties Clarke J. identified a spectrum of cases at one end of which were those which could be shown to depend on the existence or construction of documents and, at the other, cases where there is at least some potential for material factual dispute, capable of resolution only on oral evidence. For present purposes, the critical passage in the judgment of Clarke J. is para. 3.11, where he said:- “However, there are other cases where documents are not vital in themselves save that they may cast light on the underlying facts which may be at the heart of the proceedings concerned. Correspondence, minutes of meetings, memoranda and the like do not, of themselves, create legal relations between the parties. Rather they purport to reflect facts such as what was said at meetings, what was communicated from one party to the other or the like. Parties may explain or seek to clarify what might otherwise appear to be the natural meaning of such documents. At the end of the day, it will be what view the court takes as to what actually happened that will determine the facts on the basis of which the court will come to its judgment. Contemporary documentation is often a very valuable guide to such facts, but such documentation is not necessarily determinative. It is important, in that context, not to confuse cases which are dependent on documents themselves with cases where documents may be a guide, albeit often a most important guide, to the underlying facts which need to be determined in order to resolve the issues between the parties.”

30. Mr. Leahy’s application to strike out the second and third defendants’ defence on the ground that it was bound to fail was based on a detailed analysis of the discovered documents, which included extracts from some of them and submissions as to what others of them showed. Dignam J. held that the documents relied on by Mr. Leahy fell into the second of the categories identified by Clarke J. in Salthill Properties. They were, he said, documents which may cast light on the underlying facts rather than documents which governed the legal relationship between the parties. Having looked, by way of example, at two documents the judge concluded that in fact it was simply not open to him to conclude that they definitively bore the meanings contended for by Mr. Leahy. That apart, the judge found that in principle the approach which Mr. Leahy urged him to take was not the type of engagement with the evidence which was permitted.

The discovery limb

31. Before looking at that part of Mr. Leahy’s first motion as sought to strike out the second and third defendants’ defence by reason of their alleged failure to comply with the order for discovery – and his appeal to this Court against the refusal of that application – it is useful to first recall the applicable legal principles.

32. The locus classicus of the law is the judgment of the Supreme Court in Mercantile Credit Company of Ireland v. Heelan [1988] 1 I.R. 81, in which Hamilton C.J. said, at p. 85:- “The power given by [O. 31, r. 21] to the court to strike out the defence of a defendant who has failed to comply with an order for discovery is discretionary and not obligatory, and should not be exercised unless the court is satisfied that the defendant is endeavouring to avoid giving the discovery, and not where the omission or neglect to comply with the order is not a culpable one, for instance, if it is due to loss of memory or illness. It should only be made where there is wilful default or negligence on the part of the defendant and then only upon application to the court for an order to that effect. The powers of the court to secure compliance with the rules and orders of the court relating to discovery should not be exercised so as to punish a party for failure to comply with an order for discovery within the time limited by the order.”

33. In the cases since, it has been repeatedly emphasised that the power does not exist to punish a defaulter but to facilitate the administration of justice. In Dunnes Stores (Ilac Centre) Ltd. v. Irish Life Assurance plc [2010] 4 I.R. 1, Clarke J. emphasised that the proper way to deal with a culpable failure of discovery was to direct the consequences to the wrongdoing concerned. If it remains, nevertheless, possible that there could be a fair trial, then the court should conduct that fair trial and come to a conclusion on the evidence and the law. In such a case, the consequences of any failure to make proper discovery should be in costs or other matters flowing from the failure concerned.

34. In short, the court will first examine whether the moving party has established a failure to comply with the order for discovery, and then assess whether any such failure was culpable. The core issue, however, is whether the consequence of any default – even if culpable – is that it impacts on the prospect of a fair trial.

35. These principles are well established and it is worth recalling that in a judgment delivered on 15th January, 2015 ([2015] IEHC 10) Noonan J. applied them in refusing an application by these defendants to strike out Mr. Leahy’s claim for failure to make discovery.

36. The affidavits filed by Mr. Leahy were very extensive and were largely directed to the substance of the case. As Dignam J. observed, it was extremely difficult to identify precisely what the documents were that Mr. Leahy contended ought to have been discovered but were not.

37. In his replying affidavit filed on 22nd December, 2022 Mr. O’Neill distilled from Mr. Leahy’s affidavits ten specific complaints as to the adequacy of the discovery, which he listed

(i) to (x), and from which, as the judge put it, Mr. Leahy did not demur. In fact, on the hearing of the application, Mr. Leahy came up with a list of seven categories, which he listed

(a) to (g), which could be largely reconciled with Mr. O’Neill’s list but notably omitted one document or category of documents which was the cause of particular complaint. The judge looked at them all.

38. The first of the documents which Mr. Leahy said ought to have been discovered but was not, was a fax dated 11th May, 2004 sent by the third defendant to the first defendant. Mr. Leahy was correct on both counts. It was not in the three tranches of documents provided to Mr. Leahy before the affidavit of Mr. Krull was sworn on 20th November, 2018 and was not addressed in the affidavit of Mr. Krull. Yet, the correspondence showed that Mr. Leahy had obtained a copy of the fax from the first defendant and had identified to Mr. O’ Neill the omission of the fax from the books of copy documents sent to him in 2016. The correspondence also showed that in an e-mail of 18th October, 2017 to Mr. Leahy, Mr. O’Neill had acknowledged its previous existence, saying that the third defendant had instructed them that they would not have retained a document relating simply to travel arrangements. If that was so, it plainly ought to have been listed in the affidavit of Mr. Krull as a document or copy document which had previously been in the possession of the third defendant which had been lost or destroyed.

39. The fax gave the addresses of two business premises in Germany which Mr. Leahy was to visit, and contact names and numbers for each: and asked that the recipient “Terry” would notify the sender “Dudley” of the dates and times at which Mr. Leahy would be calling. It was clearly a document “in relation to” Mr. Leahy and so captured by the order for discovery but in circumstances in which the fact of the visit was not in issue, it is not immediately obvious how it might advance Mr. Leahy’s case or damage the second and third defendants’ case. Mr. Leahy made much of the fact that the identified contract person at the second defendant’s factory was Mr. Christopher Bollow, who Mr. Leahy emphasised was a technician, but there is no dispute as to who attended the meeting. That said, it was properly acknowledged that the fax was captured by the order for discovery and ought to have been discovered.

40. By the time Mr. Leahy’s motion issued on 27th July, 2022 Mr. O’Neill had identified a number of documents – including the fax of 11th May, 2004 – which ought to have been discovered by the second and third defendants but which had not. Copies of these six documents had been obtained by Mr. O’Neill from the first defendant’s solicitors. But while there had been talk of a supplemental affidavit of discovery, no such affidavit had been sworn or filed.

41. In his written submissions to this Court, and at the hearing of the appeal, Mr. Leahy had a lot to say about a series of errors and omissions – which he described as blunders – in the second and third defendants’ discovery for which he blamed Mr. O’Neill. That criticism was not without substance. For example, the correspondence showed that when the issue of the fax of 11th May, 2004 was raised by Mr. Leahy with Mr. O’Neill, Mr. O’Neill wrote to the first defendant’s solicitor, who provided him with a schedule and copies of the documents which had been discovered by the first defendant, including the fax. Mr. O’Neill identified in that bundle six documents which ought to have been but were not listed in the affidavit of Mr. Krull and sent to Mr. Leahy a draft supplemental affidavit of discovery of Mr. Krull. In the body of this draft affidavit there was a list of six documents which the draft affidavit suggested was “a further small batch of hardcopy documents which had been misfiled by [the second defendant].” That was not correct. The additional documents had not been found by the second defendant but were copy documents which had been obtained from the first defendant’s solicitors. Moreover, while the body of the draft affidavit listed six documents, the schedule to the draft affidavit listed eight documents.

42. It is important to emphasise that the draft supplemental affidavit of Mr. Krull was never sworn and that Mr. O’Neill in his replying affidavit filed in response to the motion correctly acknowledged the provenance of the additional documents as the first defendant’s solicitors but – even in draft – the suggestion that the documents had been misfiled by the second defendant in Germany was a blunder which inevitably fuelled Mr. Leahy’s suspicions.

43. The draft supplemental affidavit of discovery of Mr. Krull was sent to Mr. Leahy by e-mail on 14th May, 2020 in which it was said that – unfortunately – it had not been possible to have it sworn in Germany due to the COVID-19 situation there and that – unfortunately – an e-mail which it had been intended to send to Mr. Leahy on 23rd March, 2020 had not been sent. At the time Mr. Leahy’s motion issued – upwards of two years later – the omission had still not been dealt with.

44. As I have said, the second and third defendants’ response to Mr. Leahy’s motion was by an affidavit sworn on their behalf by Mr. O’Neill. This – as the judge found – was unsatisfactory. The criticism of the discovery ought properly to have been addressed by an officer or senior employee of the second or third defendants, ideally Mr. Krull.

45. Mr. O’Neill correctly described the fax as a copy fax which had been discovered by the first defendant to the plaintiff. He deposed than neither of his clients had retained a copy of it – which appears to have been the case – but perplexingly averred that they were unaware of its existence until April, 2019 – which in the case of the third defendant, at least, they plainly were not.

46. There was, I accept, a lack of rigour in the preparation of the second and third defendants’ affidavit of discovery some and some regrettable looseness in Mr. O’Neill’s language. However, from the time it was identified by Mr. Leahy in correspondence, there was never any issue but that the fax was sent by the third defendant to the first defendant. Thus, the averment that those defendants – and the third defendant in particular, who had written and sent it – were unaware of its existence could not sensibly have been understood as meaning that they – and the third defendant in particular – knew nothing at all about it until April, 2019. It seems to me that, in context, the averment that the defendants were unaware of its existence could only have meant that at the time the discovery was being put together they had forgotten about it. On the appeal Mr. Leahy made the case – and convincingly demonstrated – that a copy of the fax of 11th May, 2004 – which appears to have been resent by the first defendant on 13th July, 2004 – was annexed to his replies to particulars dated 19th July, 2011 and was included in a booklet prepared by the second and third defendants’ solicitors for the purposes of another motion. He also demonstrated that the omission of the fax from the bundles provided to him in 2016 had been the subject of correspondence in which Mr. O’Neill had said that they were instructed that their clients would not have retained a copy. All of this, as Mr. Leahy submitted, showed that the averment that the second and third defendants were not aware of the fax until April, 2019 was not literally correct. In context, however, the substance of the explanation for the omission was oversight, and the judge accepted that. Strictly speaking, I think that Mr. Leahy may have a point in his complaint that the judge accepted without explanation Mr. O’Neill’s evidence that his clients were “not aware of” the fax at the time Mr. Krull’s affidavit was sworn but again the context of this was the nature of the document.

47. Entirely in keeping with the authorities, Dignam J. gave weight to the fact that Mr. Leahy in fact had a copy of the fax from at least 19th July, 2011 when he delivered his replies to particulars so that he was not in any way prejudiced by the second and third defendants’ failure to discover it earlier than they eventually did; and that the fax did not speak to the precise purpose or nature of the meeting and therefore could be of little assistance on the core issue as to whether the meeting in Germany in May, 2004 was a specification meeting or an exploratory visit.

48. Dignam J. then examined Mr. Leahy’s argument that the second and third defendants

– in particular the second defendant – must have generated numerous other documents relating to the May, 2004 visit. Mr. Leahy’s case was that there must have been a record kept of the information and documents which he said he provided to the second defendant’s representatives, of the agenda for the meeting, and of the outcome. He contended that it was inconceivable that Mr. Bollow, in particular, would not have taken notes.

49. The judge took as his starting point the fact that Mr. Krull had deposed that the defendants did not have in their possession, power or procurement any documents other than those which had been discovered. He identified the first question as whether, in light of that sworn statement, Mr. Leahy had discharged the burden of proving that the defendants had failed to discover documents which they ought to have discovered. The judge identified in the affidavits of Mr. Leahy, on one side, and Mr. O’Neill, on the other, a clear conflict of evidence. He thought that there was an inconsistency between Mr. Leahy’s reference to “documents generated in front of my eyes by Mr. Bollow and Mr. Notthoff” and what he characterised as speculation that it was inconceivable that they had not taken notes. The judge found that there was a logic and a high degree of common sense to Mr. Leahy’s argument that Mr. Bollow and Mr. Notthoff must have kept notes, but that it was premised on an issue that was a fundamental source of conflict between the parties, namely, the purpose of the meeting. Mr. Leahy could – said the judge – have sought to cross-examine Mr. Krull and Mr. O’Neill, but he had not done so. Dignam J. concluded that he could not resolve the conflict on the affidavits. It followed that Mr. Leahy had failed to discharge the burden of establishing that those documents probably existed. The judge did, however, say that it was unsatisfactory that the replying affidavit had been sworn by Mr. O’Neill and that he would direct that a confirmatory affidavit should be sworn by an employee or officer of the defendants.

50. Simply put, Dignam J. was not satisfied that there had been a failure to make discovery but was persuaded that Mr. Leahy had raised an issue which called for a direct response from the defendants. The order of 13th June, 2024 directed that that affidavit be sworn by Mr. Bollow; and in due course Mr. Bollow swore an affidavit confirming that what Mr. O’Neill had said was true; that he had not made any notes of the meeting in May, 2004; that he did not recall Mr. Notthoff making any notes; and that no record had been made or data kept.

51. The judge next examined Mr. Leahy’s compliant that the second and third defendants had not discovered any notes of a meeting in May, 2005 (variously said to have taken place on 18th, 19th or 20th) at which – it was said – Mr. Riemer had agreed that products would be sent to the lab to be matched within a specified period of time. Discovery had been made of some documents relating to this meeting, but not of any notes made by Mr. Riemer. Mr. O’Neill had deposed that his clients had no such notes and the judge concluded that Mr. Leahy had not established any basis on which he could conclude that that averment was incorrect.

52. Part of Mr. Leahy’s substantive case is that the second defendant claimed to be able to match any worktop with edgings and that in May, 2005 – by Mr. Riemer– undertook to do so in the lab. Some of the discovered documents supported Mr. Leahy’s case but the judge identified in the amended defence and in Mr. O’Neill’s affidavit a lack of clarity firstly, as to whether the second defendant’s alleged agreement to undertake the matching process was admitted or denied, and secondly, whether anything had in fact been sent to the lab. He found that it was not clear from Mr. O’Neill’s averment that the defendants “do not retain copies of any lab work undertaken in 2005, if any” whether material was or was not sent to the lab; whether work was or was not done on any such material; and whether records were or were not kept. The judge concluded that this lack of clarity should be addressed by an affidavit of further and better discovery by which it would be unambiguously stated whether there ever had been any records of lab work. He said that if it transpired that there never were any documents in relation to lab work, this would advance Mr. Leahy’s case either than no material was ever sent to the lab or that the matching process had not been taken seriously.

53. In his affidavit sworn on 25th September, 2024 Mr. Bollow confirmed that there was no record of any lab work having been undertaken, from which he, Mr. Bollow, inferred – and from which he at least implicitly accepted it could be confidently inferred – that no such work had been undertaken.

54. The judge identified a similar lack of clarity in the defendants’ response – by Mr. O’Neill – to Mr. Leahy’s suggestion that there must have been other documents relating to a visit by Mr. Horlacher and Mr. Riemer to Mr. Leahy’s factory on 18th May, 2005. Mr. Leahy’s case was that either or both of Messrs. Horlacher and Riemer must have made a note or record of the meeting. The response was that “these defendants did not retain any report or reports, if any … other than those documents already discovered to the plaintiff.” This, said the judge, left open the possibility either that there had never been any note or report or that there was a report but it was no longer available. Again, the judge directed that this lack of clarity be addressed by an affidavit of further and better discovery; and it was. In his affidavit of 25th September, 2024 Mr. Bollow deposed that the second defendant had no document or record other than those which had been discovered, from which he inferred – and invited the inference – that there never had been any other document or record.

55. The judge identified the same lack of clarity in the defendants’ response to Mr. Leahy’s complaint of a failure to discover correspondence which he suggested had been sent in May, 2004 by the second defendant and the manufacturer of his machine; and a failure on the part of the defendants to address a complaint that the defendants had failed to discover any record of the substance of a meeting referred to in an e-mail of 29th September, 2005 and which was said to have taken place five weeks before that. Incidentally, the e-mail suggested that the meeting had taken place “by O’Sullivan”, which suggests to me a mistranslation of the German word “bei” – which, depending on context, can mean at or with.

56. In each case the judge found that the inadequacy of the response could not justify an order striking out the second and third defendants’ defence but directed that the shortcomings be addressed by way of an affidavit of further and better discovery: which they were.

57. The tenth of Mr. Leahy’s complaints as distilled by Mr. O’Neill was of a failure to discover a copy of a report of testing on the edgings which Mr. Leahy was – and remains – adamant was performed by a German woodworking company which is unrelated to the defendants called HOMAG. Mr. Leahy’s case was that two of the documents which were discovered showed that such a test was carried out; and he would infer from the fact that no report was discovered that it was unfavourable to the second defendant, and so would advance his case. Indeed, Mr. Leahy went so far as to suggest that this report was suppressed.

58. The foundation of this claim is a document entitled “Investigation Report” dated 30th May, 2005. It is report prepared by Mr. Peter Horlacher of the second defendant – on the second defendant’s letterhead – of testing carried out by Mr. Horlacher on edging supplied by the second defendant to Mr. Leahy and returned by Mr. Leahy on the basis that it was not fit for purpose. The subject of the report is “ABS became whiteness in the radius, edging 45 x 2 mm Cherry. Technikum Fa. HOMAG 24.05.2005”. The recorded result is “We got a good result by radius 20 and 30 mm without any discolouring.”

59. Focussing on a reference in the investigation report to “Test by HOMAG”, Mr. Leahy’s argument was – and is – that the report shows that, besides the test conducted by Mr. Horlacher, a separate test was carried out by HOMAG.

60. The investigation report is a short report in four sections headed “Base Situation”, “Test by HOMAG”, “Result”, and “Machine/and working circumstances.” It shows that on 30th May, 2005 Mr. Horlacher carried out tests at HOMAG’s technical centre using a HOMAG Profiline BAZ 442 machine. The full text if the section entitled “Test by HOMAG”

is:-

“Test by HOMAG: We made tests with a different glue system with higher working temperature on a Homag BAZ. Target: to reduce the discolouring in the radius. We used the edgeband which we have delivered to the customer.”

61. Mr. Leahy was also able to point to an e-mail on 4th August, 2005 from the third defendant to the second defendant which suggested that the third defendant also understood the investigation report as meaning that an independent test had been carried out by HOMAG.

62. The judge was of the view that there was support in the investigation report and in the third defendant’s e-mail for Mr. Leahy’s argument that a test had been carried out by HOMAG, but found that in light of the other evidence it was not open to the court to definitively conclude that that the documents had that meaning. The other evidence was that from the time the suggestion was first made, the second defendant was adamant that the test had been done by Mr. Horlacher in HOMAG’s factory, on a HOMAG machine, and that there was no independent test carried out by HOMAG. The judge found that there was no sufficient basis on which he could conclude that there was a report of another test which had not been discovered. Summary of the judgment of Dignam J.

63. For the reasons given, Dignam J. refused Mr. Leahy’s applications to strike out the second and third defendants’ defence pursuant to O. 19, r. 28 on the grounds that it disclosed no reasonable answer or had been shown by the pleadings to be frivolous or vexatious, or under the inherent jurisdiction of the Court on the basis that it was bound to fail; or to strike out the defence pursuant to O. 31, r. 21; but made an order directing the defendants to file an affidavit to directly address the various shortcomings which he had identified.

64. The judge marked the shortcomings in the second and third defendants’ discovery and the manner in which the motion had been answered by limiting his award of costs in respect of that element of the motion to 50%.

65. By notice of appeal filed on 28th June, 2024 Mr. Leahy appealed against the whole of the judgment and order of the High Court.

The second motion

66. By notice of motion issued on 7th October, 2024 Mr. Leahy made a second application for an order pursuant to O. 19, r. 28 striking out the second and third defendants’ defence. It was grounded on an eleven-page affidavit filed on the same day, with 24 pages of exhibits.

67. Mr. Leahy’s grounding affidavit was not easy to follow but he had a lot to say about the agreement made in May, 2005 and the thrust of what he had to say appears to have been that the ultimate cause of the failure of his business was the defendants’ failure to comply with that agreement. Mr. Leahy recalled Dignam J.’s observation that the documents which had been discovered tended to support Mr. Leahy’s case that there was an agreement that laminate décors would be sent to the lab for testing, and that confirmation that there were no records of lab work would facilitate him in making the case either than no material was sent to the lab to be matched, or that the matching process was not being done or taken seriously. He then pointed to Mr. Bollow’s affidavit of further and better discovery in which Mr. Bollow confirmed that there was no record of any such work from which he – Mr. Bollow – inferred that no such work had been undertaken. Mr. Leahy summarised his complaints about the delays in 2004 and the quality of the material eventually delivered and then sought to demonstrate by reference to various e-mails that the May, 2005 agreement had not been performed. In the mix was the fact that in and after May, 2005 the first defendant was insisting on payment for the material which had already been supplied but Mr. Leahy did not really engage with whether, or the extent to which, this was relevant to non-delivery of the materials which he wanted.

68. I am bound to say at this point that it was perfectly clear that Mr. Leahy’s was attempting to again do what Dignam J. had explained to him was impermissible, namely to separate business correspondence from the circumstances in which it was written and then invite the court to resolve issues of fact by reference to extracts from that correspondence. Moreover, even if, for the sake of argument, that was permissible – and it plainly was not – an established breach of the May, 2005 agreement could not logically amount to irrefutable proof of all of the alleged representations and assurances which had gone before or support the claim for damages which – as pleaded – was based on what was said to have been said and done and not done in and after May, 2004.

69. No replying affidavit was filed on behalf of the second and third defendants. Yet another blunder!

70. On 21st October, 2024 a further affidavit of Mr. O’Neill was filed in relation to the second and third defendants’ discovery in which – “in ease of the court” – he exhibited – in a folder and a half – all of the material which had been disclosed and explained that a further affidavit of Mr. Bollow would be required to “clarify” an inaccurate averment in his – Mr. Bollow’s – affidavit of 25th September, 2024.

71. Mr. Bollow’s affidavit had not been filed within the eight weeks limited by the order of 13th June, 2024 and on 5th September, 2024 Mr. Leahy had obtained leave for short service of a motion returnable for 8th October, 2024. In the meantime, an affidavit of Mr. Bollow sworn on 25th September, 2024 had been filed on 1st October, 2024 to address the issues identified in the judgment of Dignam J. and on 30th October, 2024 an affidavit of discovery of Mr. Bollow was filed. If the copy in the books is complete, there were no schedules attached: but that was not the blunder.

72. In his affidavit filed on 21st October, 2024 Mr. O’Neill confessed that the First Schedule, First Part to the affidavit of Mr. Krull sworn on 20th November, 2018 listed only those documents which had been included in the first tranche of documents given to Mr. Leahy and not those which had been provided in the second and third tranches. He also confessed that when drafting the affidavit by which Mr. Bollow had confirmed that there was no record of the meeting referred to in Mr. Riemer’s e-mail of 29th September, 2005 – and therein said to have taken place about five weeks earlier – he had forgotten that there was a note of a meeting on 25th August, 2005 which was included in the third tranche of documents given to Mr. Leahy on 7th June, 2018. The upshot of all this was that while Mr. Leahy had long and ever ago been given a copy of the note it was not (nor were the other documents in the second and third tranches) included in what Mr. Krull had deposed and Mr. Bollow had confirmed was a complete list.

73. This – to borrow from Mr. Leahy – was yet another blunder in a litany of blunders which beset the second and third defendants’ discovery but Mr. Leahy had the documents all along and the discrepancy was first identified after his O. 31, r. 21 application had been heard and determined. Mr. O’Neill, in fairness, accepted full responsibility for the blunders, for which he apologised. In view of all of the foregoing – he said – a new affidavit of discovery had been prepared which would properly schedule all of the documents; and a composite affidavit of discovery of Mr. Bollow was eventually filed on 22nd May, 2025.

74. In the meantime, on 25th November, 2024 Mr. Leahy filed a supplementary affidavit in which he revisited the May, 2005 agreement, which he now dubbed “the 2005 Reimer [recte. Riemer] agreement.” The 2005 agreement – he said – ended the historical controversies of the second defendant failing to match the laminates with edgings to an acceptable quality; Mr. Bollow’s affidavit of 25th September, 2024 confirmed that nothing had been sent to the lab; and the allegations of contributory negligence – he said – could not relate to the 2005 agreement. Mr. Leahy sought to deal with the plea that he had failed to mitigate his losses by demonstrating what he said he had done to do so. The judgment of Quinn J.

75. Mr. Leahy’s second motion came before the High Court (Oisín Quinn J.) on 6th February, 2025 and appears to have occupied the whole day. Quinn J. gave an ex tempore judgment.

76. Quinn J. summarised the pleadings and set out the relevant legal principles. By then Simons J. had delivered his judgment in O’Malley in which he noted that the effect of the new O. 19, r. 28 was to codify the existing jurisprudence. Mr. Leahy’s core argument was that he could point to incontrovertible evidence that the second and third defendants’ defence was bound to fail. Counsel for the defendants submitted that the defence was clear, detailed, thorough, comprehensive, and at points legally sophisticated. Counsel further submitted that the issues which Mr. Leahy sought to canvas were res judicata or covered by Henderson v. Henderson. Mr. Leahy’s answer to that argument was that he had in the meantime received further discovery, in particular Mr. Bollow’s affidavit confirming that there were no records of any lab work, from which it could be inferred that nothing had been sent to the lab.

77. Quinn J. found that the case wholly fell outside the kind of case where a party could point to some incontrovertible document such as a lease or a deed or some single document that governed the legal relations of the parties. The documents to which he had been brought by Mr. Leahy, he said, were far from clear and Mr. Leahy’s arguments about what they meant and his interpretation of them precisely demonstrated that this was not a suitable application. Citing the judgment of Barron J. in Jodifern Ltd, he said that there was no room for considering what evidence should be accepted or how it should be interpreted. To do so, he said, would be to enter on some sort of hearing of the claim itself; which was impermissible.

78. In addition – said Quinn J. – Mr. Leahy had failed to engage at all with the question of whether there was or was not a contractual relationship between him and the second and third defendants, or whether there was any connection between the alleged representations and the economic loss which he claimed. The judge summarised Mr. Leahy’s argument based on the absence of any evidence that lab work had been carried out which he characterised as simply one feature of a complicated factual background and said that the significance of the absence of any lab work was something that needed to be teased out at trial. He looked at the documents on which Mr. Leahy particularly relied and – citing Salthill Properties and Jodifern – found that these were documents passing to and fro which required context and evidence.

79. Quinn J. concluded that this was a wholly inappropriate case in which to consider granting relief under O. 19, r. 28 and refused the application for that reason. He went on to say that while it was not necessary to deal with the defendants’ res judicata and/or Henderson v. Henderson argument, he would have been inclined to the view that it was probably not res judicata but probably was an abuse of process: but that it wholly failed on its merits.

80. By notice of appeal filed on 25th February, 2025 Mr. Leahy appealed against the judgment and order of the High Court of 6th February, 2025.

The appeals

81. On Mr. Leahy’s first appeal (2024/161) the grounds of appeal ran to 32 paragraphs over ten pages. The notice of appeal and the written submissions filed by Mr. Leahy were directed to both limbs of his first motion but in the course of the management of the appeal he abandoned his appeal against the O. 19 limb.

82. The grounds of appeal on the second appeal (2025/41) ran to 39 paragraphs over nine pages. I should say at this point that there was no complaint in the respondents’ notice as to the manner in which Quinn J. dealt with the res judicata/Henderson v Henderson argument; nor was this marshalled as an additional ground on which the judgment and order of the High Court should be affirmed.

83. In the course of the first appeal, Mr. Leahy filed what was described as an auxiliary booklet which comprised correspondence in relation to the books which were made up for the purpose of the hearing before Quinn J.; a selection of various documents and correspondence from the books of discovered documents; and some of the correspondence that was exchanged in relation to the discovery – including the draft supplemental affidavit of discovery of Mr. Krull and the affidavit of Mr. O’Neill – which were already in the books for the first appeal. A further section of this auxiliary booklet was devoted to an exchange of emails in relation to the print quality of the books prepared for the purpose of the hearing before Dignam J. It appears that the books were prepared by the defendants’ solicitors and collected by Mr. Leahy for filing. Whether the books were or were not all that they might have been, this did not go to the merits of the application.

2024/161 The first appeal

84. The first of the grounds of appeal directed to the discovery limb was para. 24 where Mr. Leahy suggested that Dignam J. erred in law and in fact “on turning to better additional discovery as a remedy in these applications for as of functus office and the question of if the plaintiff ought to have sought better discovery and particulars was dealt with the High Court a jurisdiction of equal status by Justice Barniville when determining that the plaintiff was entitled to an order of discover in his decision on the 22nd October 2018. To that Justice Dignam had not the jurisdiction to revisit the question of further and better discovery.”

85. Doing the best I can, the proposition appears to be that the order of Dignam J. somehow varied the order of Barniville J. It did not. There was never – after the order of 22nd October, 2018 was made – any issue as to the extent of the discovery to which Mr. Leahy was entitled. Apart from the acknowledged omissions, the issue before Dignam J. was whether the second and third defendants had, or ever had, any documents in their possession, power or procurement which had not been discovered. Dignam J. did not in any way revisit the question of the discovery to which Mr. Leahy was entitled. So much of his order as directed the filing of an affidavit of further and better discovery was directed to ensuring compliance with the order of Barniville J.

86. Several of the grounds of appeal were directed to the failure to discover the fax of 11th May, 2004. I have already dealt with Mr. Leahy’s argument that the judge erred in accepting

– without explanation – Mr. O’Neill’s evidence that the second and third defendants were unaware of this fax until 2019. Mr. O’Neill had already acknowledged in correspondence that the e-mail had been sent and had relayed his instructions that his clients would not have kept a copy. Mr. Leahy had a copy from at least 2011 and was not prejudiced by its omission from the second and third defendants’ discovery.

87. In his written submissions on the first appeal, Mr. Leahy sought to re-open the wording of the order for discovery of 22nd October, 2018. I do not disagree that with the benefit of hindsight a more precise form of words would have been better, but that is water under the bridge. He sought to revisit various criticisms he had made of a draft affidavit of discovery which preceded the affidavit of Mr. Krull which was sworn on 20th November, 2018 but these were dealt with and overtaken by the sworn affidavit.

88. Mr. Leahy was highly critical of the involvement of Mr. O’Neill in the discovery process. He recalled in particular, Dignam J.’s observation that it was unsatisfactory that the affidavit in reply to Mr. Leahy’s motion for further and better discovery was sworn by the solicitor rather than by a senior employee or officer of the defendants. Dignam J. dealt with that issue by directing the delivery and filing of an affidavit of the second defendant’s Mr. Christopher Bollow: and that was duly done. Mr. Leahy had a lot to say about Mr. O’Neill’s efforts in 2019 and 2020 to address the deficiencies in the discovery which had by then been identified. But if there was merit in the criticism that the omissions were not addressed as soon or as efficiently as they ought to have been, the demonstrable fact was that the omissions were acknowledged and dealt with.

89. Nowhere – whether in his grounds of appeal or in his written or oral submissions – did Mr. Leahy engage with the established principles of law by which the jurisdiction conferred by O. 31, r. 21 is to be exercised. His exclusive focus was on the mistakes which had been made in the identification and scheduling of the relevant documents.

90. With some justification, Mr. Leahy urged that the several “anomalies” which he had demonstrated were – all capitals – “CULPABLE”. He hammered home his criticism of the draft affidavit of Mr. Krull which had suggested that the copy documents obtained by Mr. O’Neill from the first defendant’s solicitors had been misfiled in Germany. However, he did not recognise that the provenance of the additional documents had been correctly identified by Mr. O’Neill, and he did not suggest that there was any outstanding deficit in the second and third defendants’ discovery. Critically, Mr. Leahy did not suggest that there was any risk that there could not be a fair trial.

91. In short, while on the one hand Mr. Leahy recognised that the purpose of the jurisdiction conferred by O. 31, r. 21 is to ensure compliance with orders for discovery, his core argument was that the second and third defendants should have been punished for Mr. O’Neill’s several blunders. I am satisfied that in dealing with the discovery limb of Mr. Leahy’s motion, Dignam J. correctly identified and applied the appropriate legal principles and that his appeal must be dismissed.

92. As I have said, so much of the first appeal as was directed to what was loosely described as the O. 19 limb was not pursued.

2025/41 The second appeal

93. By notice of appeal filed on 25th February, 2025 Mr. Leahy appealed against the judgment and order of Quinn J. on the grounds set out in 39 paragraphs over nine pages.

94. Apart from being very long, the grounds of appeal are not easy to follow.

95. Mr. Leahy first of all suggested that he had been failed by the system in that his second motion had not been assigned to Dignam J. That was misconceived. In fact, it appears – and the notice of appeal acknowledged – Dignam J. was no longer assigned to the Chancery list. The point, however, is that no litigant is entitled to expect or require that his case will be assigned to a particular judge.

96. In his appeal against the judgment and order of Quinn J., Mr. Leahy had a good deal to say about paras. 67, 68, 69 and 70 of the judgment of Dignam J.: where Dignam J. had dealt with the second and third defendants’ discovery in relation to the May, 2005 agreement and the ambiguity in the averment of Mr. O’Neill as to whether there ever had been a record of any lab work later undertaken to match edgings to Mr. Leahy’s samples. Dignam J., it will be recalled, had directed that this ambiguity be addressed by an affidavit of further and better discovery, to be sworn by Mr. Bollow; and the substance of the supplemental affidavit of Mr. Bollow was that no such records had been kept, from which it could be inferred that no lab work had been undertaken. The thrust of the argument was that, taken together, the correspondence, the admissions in the defence, and the judgment of Dignam J. conclusively established the making of an agreement in May, 2005 on the terms contended for by Mr. Leahy; and that the absence of any record of lab work conclusively established that it had been breached.

97. Quinn J. addressed this argument at para. 63 to 71 of the transcript of his judgment, finding – in the words of Clarke J. in Salthill Properties – that the documents on which Mr. Leahy sought to rely were documents passing to and fro at the time which required context and evidence; and – in the words of Barron J. in Jodifern – that there was no room for considering what evidence should be accepted or how it should be interpreted. Mr. Leahy asserted that Quinn J. erred in finding that the documents “fell afoul of the dicta of Mr. Justice Barron in Jodifern” but did not engage with the nature of the documents.

98. The notice of appeal also suggested that Quinn J. erred in not limiting the argument to what Mr. Leahy described as his core documents – the defendants’ admission, the judgment of Dignam J., the order for further and better discovery, and the affidavit of Mr. Bollow – but this was clearly misconceived. Apart altogether from the absence of evidence and context, the focus of the argument was on the alleged making and breach of the May, 2005 agreement and not on the case pleaded in the amended statement of claim which went back to the meeting in Germany in May, 2004. Even if – for the sake of argument – the making and breach of an agreement in May, 2005 could have been established, this could not have made all of Mr. Leahy’s other claims “null and void”, and could not have justified striking out the second and third defendants’ defence.

99. The ground of appeal, at para. 14, suggested – and I paraphrase – that Quinn J. in the exercise of his jurisdiction under the new O. 19, r. 28 was not – as Mr. Leahy variously put it “restricted” or “handicapped” by the approach required by the authorities to the old O. 19, r.

28. This proposition – with no disrespect – never got beyond a mere assertion. Mr. Leahy did not – whether in the notice of appeal or his written or oral submissions – engage with the fact that the new O. 19, r. 28 did no more than codify the law as it stood at the time of the amendment of the Rules of the Superior Courts. Under the old O. 19, r. 28 there was no scope whatever for engagement at any level with the evidence. Under the old regime, the court in exercising its inherent jurisdiction could engage with the evidence to the very limited extent explained in Jodifern, Salthill Properties and Keohane v. Hynes. The codification of the law by the new O. 19, r. 28 did not effect any change in the substantive law.

100. In his written and oral submissions on the second appeal, Mr. Leahy again focussed on the making and alleged breach of the May, 2015 agreement.

101. By reference to the plea in the second and third defendants’ defence that any liability, if any, which they might therefore have had in respect of the matters set forth in the statement of claim had been fully and finally compromised and settled, Mr. Leahy contended that it was “common ground that all gone before … was compromised settled between the parties.” That is simply not so. On the pleadings, there is an issue as to what was agreed in May, 2005. Moreover, while it was more or less common case that an agreement had been reached in May, 2005, in the absence of a reply, the defendants’ plea that it was in full and final settlement was in issue. Moreover, there was no attempt to recalculate the losses claimed arising out of the alleged breach of the alleged 2004 agreement so as to link or confine them to any alleged breach of the alleged 2005 agreement.

102. Mr. Leahy sought to reopen the discovery limb of his earlier application, rehearsing his complaints about the affidavit of Mr. O’Neill. The application before Quinn J. – he submitted – stemmed from Dignam J.’s “unsatisfaction” with Mr. O’Neill’s affidavit of 7th November, 2022. The result of the order for further and better discovery and Mr. Bollow’s affidavit – he submitted – was that his claim as to the breach of the May, 2005 agreement was incontrovertible. It was – he submitted – “a legal oxymoron” that Dignam J. could rely on documents such as e-mails to determine that that the parties had reached an agreement but Quinn J. “felt restricted by the authority of Jodifern to reach the same decision as Justice Dignam.”

103. Doing the best I can, the argument appears to be that if – as it is said Dignam J., found

– the fact of the agreement could be established by reference to e-mails, then the breach of the agreement could be established by e-mails. I follow the logic, but the premise is mistaken. Dignam J. did not find that the fact – never mind the terms – of the Mr. Leahy’s alleged 2005 agreement had been established. He said – at para. 68 – in the context of the discovery limb, that there were documents which indicated that there was an agreement that products would be sent to the lab and that it was unclear whether this had been done. In directing further and better discovery, Dignam J. said that if no documents were discovered that would facilitate Mr. Leahy in making the case either that no product was sent to the lab to be matched, or that the matching process was not being done or was not being taken seriously. Dignam J. did not find as a fact that there was an agreement, or a legally binding agreement, or what the terms of any such agreement were. Nor did he find that the fact – if it were shown by the further and better discovery to be the fact – that no product was sent to the lab to be matched would establish a breach of contract. Before dealing with the O. 19 limb of the motion before him, Dignam J. had already identified the documents relied on by Mr. Leahy as incontrovertibly establishing a breach of contract or other wrongdoing as part of the kaleidoscope of evidence which the trial court would have to consider when endeavouring to establish the underlying facts.

104. Mr. Leahy submitted that he sees Jodifern as “the antiquated view of fit for purpose documents.” He sought to distinguish Jodifern as a dispute over the sale of a farm, whereas his claim “involved” tort. This – with no disrespect – makes no sense. Jodifern concerned the then inherent jurisdiction of the court to dismiss an action on the ground that it could be shown to be bound to fail. It was not confined to contract cases.

105. The hopelessness of Mr. Leahy’s argument was highlighted at the oral hearing of the appeal when he sought to put a gloss on certain passages in various business documents while profoundly disagreeing with other passages in the same documents.

106. The jurisdiction now to be found in O. 19, r. 28(2)(ii), (iii) and (iv) does not permit the resolution of contested questions of fact. Mr. Leahy has failed to identify any error in the judgment of Quinn J. and his appeal must be dismissed.

Summary and conclusions

107. This is an action by which Mr. Leahy claims swingeing damages against the second and third defendants for alleged negligence, breach of contract, negligent misstatement and misrepresentation arising out of business dealings in 2004 and 2005. More or less in the ordinary way there was an exchange of pleadings in which the defendants contested almost all of the allegations against them.

108. More or less in the ordinary way there was an order for discovery of documents which were relevant to the issues disclosed by the pleadings and discovery of which was necessary for the fair disposal of the proceedings and for saving costs.

109. Mr. Leahy correctly identified a number of shortcomings in the defendants’ discovery and applied for an order pursuant to O. 31, r. 21 to strike out their defence. Dignam J. – applying well settled principles – found that the shortcomings in the discovery were not culpable and did not give rise to a risk of an unfair trial. He declined to strike out the defence but dealt with the shortcomings by directing further and better discovery and by reflecting his conclusions in the costs.

110. The exclusive focus of Mr. Leahy’s appeal against Dignam J.’s refusal to strike out the defendants’ defence was on the alleged culpability of their solicitor. Mr. Leahy’s criticism of the defendants’ solicitor was not without substance but the case was not made that the defendants were directly culpable. There was no challenge to the judge’s conclusion that there was no risk of an unfair trial. It follows that the appeal against so much of the judgment and order of Dignam J. as refused Mr. Leahy’s application pursuant to O. 31, r. 21 must be dismissed.

111. Mr. Leahy also applied for an order pursuant to O. 19, r. 28 and/or the inherent jurisdiction of the court striking out the second and third defendants’ defence on the grounds that the defence disclosed no defence and/or was bound to fail. Dignam J. refused that application and although Mr. Leahy filed an appeal he did not pursue it.

112. After the shortcomings in the discovery had been dealt with, Mr. Leahy brought a further motion pursuant to O. 19, r. 28 to strike out the second and third defendants’ defence on the grounds that it was an abuse of process and bound to fail. The foundation of the second motion was a plea in the defence that any liability, if any, which the defendants might theretofore have had to Mr. Leahy was compromised by an agreement made in May, 2005. That, if made out, would plainly be a defence to any claim for any losses previously incurred but there was no reduction in the amount of the claim. While, on the motion, Mr. Leahy sought to embrace the defendants’ plea, it was, on the pleadings, in issue.

113. Mr. Leahy’s argument that the defence was bound to fail was largely based on his interpretation – without context or explanation – of a selection of the correspondence and business documents which had been generated over the course of the parties’ dealings. In the words of Clarke J. in Salthill Properties, the documents relied on were not documents which by themselves created legal relations between the parties but documents which purported to reflect facts such as what was said at meetings, what was communicated by one party to the other, or the like. Moreover, Mr. Leahy’s argument was based on selective quotation from selected documents, and depended on his interpretation of those passages which he agreed with.

114. The substance of the appeal was a bare assertion that a series of Supreme Court decisions – Jodifern Ltd. v. Fitzgerald, Salthill Properties v. Bank of Scotland and Keohane v. Hynes – had either been overtaken by the introduction in 2023 of a new O. 19, r. 28 or were outdated and ought not to be followed. The proposition that the new O. 19, r. 28 changed the law is wrong. The bald assertion that Jodifern – and by inference the cases which followed it

– were outdated, did not engage with the rationale for the principled approach established by the authorities. And the suggestion that they might be reversed by this Court failed to recognise that they are all judgments of the Supreme Court.

115. It follows that Mr. Leahy’s appeal against the judgment and order of Quinn J. must also be dismissed.

116. The second and third defendants having been entirely successful in defending the appeal are presumptively entitled to their costs. If – at the risk of increasing the burden of costs – Mr. Leahy wished to contend for any other costs order, he may within fourteen days of the electronic delivery of this judgment file and serve a short written submission directed and confined to the question of costs and not exceeding 1,500 words. In that event, the respondents will have fourteen days to file and serve a response: similarly so directed and limited.

117. As this judgment is being delivered electronically Faherty and Meenan JJ. have authorised me to say that they agree with it and with the orders proposed.