Court dismisses inter partes discovery application against non-claiming notice party requiring separate non-party application.

THE HIGH COURT

[2025] IEHC 487

[Record No. 2022/5619P]

BETWEEN

MICHAEL O’SULLIVAN AND MARY O’SULLIVAN

PLAINTIFFS

AND

ALLIED IRISH BANK PLC

AND

EVERYDAY FINANCE DAC

DEFENDANTS

AND

COTTONLANE LIMITED

NOTICE PARTY

BETWEEN

EVERYDAY FINANCE DAC

COUNTER PLAINTIFF

AND

MICHAEL O’SULLIVAN AND MARY O’SULLIVAN

COTTONLANE LIMITED

COUNTER DEFENDANTS

JUDGMENT of Mr Justice Kennedy delivered on the 12th day of September 2025.

Introduction

1. This judgment concerns whether Cottonlane Limited (“Cottonlane”) can apply under O.31 r.12 of the RSC for inter partes discovery (“Inter Partes Discovery”) against the plaintiffs, Michael & Mary O’Sullivan (“the O’Sullivans”), and the first defendant (“AIB”) on the basis that it is; (a) a notice party to the plenary proceedings between the O’Sullivans as plaintiffs and AIB (and Everyday) as defendants (“the Substantive Proceedings”); and/or (b) a defendant to Everyday’s counterclaim (“the Counterclaim”) or whether it must seek non-party discovery under O.31 r.29 (“Non-Party Discovery”).

2. I consider that Cottonlane is not entitled to seek Inter Partes discovery in the Substantive Proceedings. It is not advancing any claim or seeking any relief in those proceedings, nor is a claim being advanced or relief sought against it therein.

3. Nor can its current discovery application be justified on the basis of its status as a Defendant to the Counterclaim brought by the second defendant, Everyday. AIB is not a party to that Counterclaim, so a non-party discovery application would be required against it in that context. Furthermore, Cottonlane’s applications were based on voluntary discovery requests directed to the Substantive Proceedings rather than the Counterclaim.

4. The applications are also flawed since they seek discovery for use in separate litigation with other parties (“the Solicitors’ Proceedings” which are referenced below).

5. Even leaving aside these objections, Cottonlane has not established the necessity and relevance of the documents sought in circumstances in which; (i) the parameters of discovery to be exchanged by the Plaintiffs and AIB have been resolved; (ii) it has been offered (conditional) access to such discovery but it has not availed of that offer or demonstrated why it is insufficient. Nor is Cottonlane entitled to undertake a fishing expedition or to seek discovery in the speculative hope that relevant documents might emerge.

6. Cottonlane’s applications cannot be treated as Non-Party Discovery applications but the evidence currently available would not justify non-party discovery orders in any event. It would need to demonstrate the relevance, necessity and proportionality of such orders against a non-party and to show that the discovery would not be accessible by other means, such as inter partes discovery against the parties to the relevant claim. Its failure to avail of proffered access would count against it in this context. Cottonlane may in due course seek Non-Party Discovery from AIB (either in the Counterclaim or in the Solicitors’ Proceedings) after exhausting other routes, including inter partes discovery and meeting the requirements of r.29 as explained in authorities such as Chambers v Times Newspapers Ltd [1999] 2 IR 424 at p.429.

Background

7. The following points are undisputed for present purposes:

(a) The O’Sullivans borrowed from AIB to, inter alia, fund a development (“the Development”). AIB restructured their loans in 2014 at their request (“the 2014 Agreement”). The O’Sullivans say that, as part of that deal, AIB agreed to release charges on 14 units in the Development, to allow for their sale. AIB denies this, saying that it only agreed to the sale of 10 units, refusing to consent to the sale of the other four units (“the Four Units”). However, the O’Sullivans sold all 14 units to Cottonlane, which became the registered owner on 4 April 2019. AIB refused to release its registered charges on the Four Units. The O’Sullivans commenced these proceedings against AIB in November 2022. The essential issue is whether AIB agreed to the sale of all units and must release the charges.

(b) AIB sold its interest in the loans and security to Everyday on 17 January 2020. On 7 February 2023 the O’Sullivans successfully applied to add the latter as a defendant to the Substantive Proceedings.

(c) At the 7 February 2023 hearing, the O’Sullivans also secured an order joining Cottonlane as a notice party, the latter having consented to that application. Although it appears from the order that two affidavits were before the Court on that occasion, I have not seen those affidavits or the notice of motion and there is no evidence before me as to the basis on which the O’Sullivans sought Cottonlane’s joinder (as opposed to the other reliefs claimed) or as to AIB’s attitude. There is no suggestion from the face of the order that it was made on consent. However, the O’Sullivans confirmed to the Court that Cottonlane did consent to being joined. The O’Sullivans delivered a Statement of Claim essentially alleging that AIB was wrongfully refusing to release the charges. AIB’s Defence maintains that; (i) it never consented to the sale of the Four Units and repeatedly communicated this to the O’Sullivans; (ii) the O’Sullivans did not comply with the 2014 Restructure Agreement and the sale of the Four Units contravened the mortgage conditions and the terms of AIB’s actual consent.

(d) Everyday’s Defence and Counterclaim echoed AIB’s defence, counterclaimed against the O’Sullivan and Cottonlane (“the Counterclaim Defendants”) and sought to set aside the transfer of the Four Units to Cottonlane.

(e) On 13 December 2024 the O’Sullivans obtained leave to amend the Statement of Claim to challenge the loan sale. The Amended pleading has not been served.

The Pleadings

8. The pleadings can be briefly summarised to the extent relevant:

(a) The Statement of Claim alleges that: (i) In November 2018 the O’Sullivans sold the 14 units to the Notice Party on an “as seen” basis; (ii) In breach of the 2014 Agreement AIB withheld releases for the Four Units; (iii) Everyday acquired the O’Sullivans’ facilities from AIB subject to equities.

(b) AIB’s Defence pleads that; (i) the O’Sullivans are not the registered owners of the Four Units and do not have standing to bring the proceedings or to seek the reliefs claimed; (ii) Cottonlane has been the registered owner of the Four Units since 4 April 2019; (iii) the loan and security transferred to Everyday on 17 January 2020; (iv) AIB denies the terms of the 2014 Agreement as pleaded by the O’Sullivans, saying that the 2014 Agreement provided for the disposal of ten units, and separately for the disposal of the remaining Four Units, with separate minimum asset disposal targets; (v) AIB only consented to sale of ten units, excluding the Four Units, and continued to rely on the latter as security; (vi) AIB discovered after the event that the O’Sullivans had sold the Four Units; the sale contravened the mortgage conditions and the terms of AIB’s actual consent to sale; (vii) the O’Sullivans have no entitlement to releases for the Four Units.

(c) Everyday’s Defence and Counterclaim denies the O’Sullivans’ claim. Its Counterclaim against the O’Sullivans and Cottonlane alleges that; (a) the O’Sullivans mortgaged the Four Units to AIB; (b) Cottonlane was not a purchaser for value without notice (since the mortgage was registered). Everyday seeks an order setting aside the transfer, and judgment in the sum of €4,785,059.16 and ancillary reliefs.

(d) Cottonlane’s defence to the counterclaim pleads, inter alia, that; (i) it is a stranger to the mortgage; (ii) Cottonlane’s interest was registered prior to the loan sale so Everyday was on notice of the transfer before it acquired the facilities; (iv) Everyday is not entitled to orders setting aside the transfer to Cottonlane.

The Background to Cottonlane’s Discovery Motions

9. Several discovery motions between the parties to the wider litigation have been compromised, including Cottonlane’s application for discovery by Everyday. However, AIB and the O’Sullivans dispute Cottonlane’s entitlement to seek Inter Partes Discovery and also dispute the validity of the discovery request and application on other grounds. The genesis of the current motions is as follows:

(a) On 25 April 2023 Roberts J gave directions (on consent) including in respect of voluntary discovery requests between the parties, including Cottonlane.

(b) Cottonlane agreed to requests for inter partes discovery from AIB and Everyday and the O’Sullivans without taking the points which the O’Sullivans and AIB are taking against it.

(c) On 10 June 2024 Sanfey J’s further directions on consent included provision for Cottonlane’s discovery motions. The subsequent voluntary discovery requests (“the Requests”) invoked O.31 r.12.

(d) The O’Sullivans oppose Cottonlane’s application on the basis that; (i) Cottonlane was impermissibly seeking discovery to further separate proceedings; (ii) it is not entitled to documents sought for the purposes of settling matters between the O’Sullivans and Defendants - it “is not properly a party to” the Substantive Proceedings and it is not subject to any reliefs sought by them; and (iii) it has failed to satisfy established discovery requirements.

(e) AIB response dated 24 November 2023 rejected Cottonlane’s voluntary discovery request on the basis, inter alia, that Cottonlane was neither making a case nor having a case made against it in the proceedings nor in the position of defending the proceedings. Accordingly, the motion should have been brought as a non-party discovery request, including undertakings as to confidentiality and costs. However, AIB was open to considering a request from Cottonlane for copies of documents discovered by it to the O’Sullivans subject to the agreement of all parties and payment of scrivenery costs.

Discovery sought by Cottonlane

10. Cottonlane’s discovery requests were framed as being advanced by the Notice Party (rather than as “Notice Party/Counterclaim Defendant”, the terminology employed in its notices of motion). They sought two categories from the O’Sullivans and AIB, in short, documentation (a) evidencing or recording the agreement between the O’Sullivans and AIB to release the charges or (b) evidencing or supporting the O’Sullivans’ attempts to enforce the 2014 Agreement or to obtain releases. Cottonlane’s main justification for the discovery in its notices of motion and grounding affidavits was by reference to; (a) allegations in the Statement of Claim that the 2014 Agreement committed AIB to release the charges on all units to facilitate their sale but it wrongfully failed to consent to the sale of four of them or to the release of those charges; (b) AIB’s plea (mirrored by Everyday) that it never agreed to the sale of the Four Units and remained entitled to rely on the security; and

(c) Everyday’s counterclaim alleging that; (i) the sale to Cottonlane without AIB’s consent was wrongful; (ii) Cottonlane was not a purchaser for value without notice; and (iii) the transfer had impacted on Everyday's security. Everyday sought judgment and orders setting aside the transfer.

11. Cottonlane’s discovery applications stated that; (a) the “Notice Party/Counterclaim Defendant" required discovery of the two categories because the material was not available by other means and was relevant to the Solicitors Proceedings in which it sought specific performance of undertakings concerning the redemption of the charges; (b) any such documentation was likely to relate to issues in these and related proceedings; (c) Cottonlane was entitled to seek the same for the purposes of prosecuting the related proceedings and/or for the purposes of being fully notice of the issues arising in these proceedings, “given Everyday's counterclaim which seeks to reverse the transfer".

12. The O’Sullivans and AIB rejected Cottonlane’s request for voluntary discovery on the basis, inter alia, that; (a) Cottonlane was a notice party which was neither “making a case nor having a case made against it in these proceedings"; (b) the request was misconceived and would delay and increase the costs of the proceedings; (d) the discovery was not necessary for the proper defence of the proceedings as the Notice Party was not defending the (substantive) proceedings; and (e) the request could not be justified by reference to the Solicitors Proceedings.

The Affidavits

13. I need not summarise the affidavits in full as there was limited pertinent disagreement and key points are noted above or elsewhere in this judgment. The following additional points may be noted:

(a) The O’Sullivans’ affidavit stated that since Cottonlane was not a party to the proceedings and was not subject to reliefs sought in the litigation, the documents sought were neither relevant nor necessary to the fair determination of matters between the O’Sullivans and Defendants.

(b) The affidavit on AIB's behalf reiterated points made in correspondence that; (i) Cottonlane’s reasons were inadequate since, as a notice party it was neither making a case nor having a case made against it in the Substantive Proceedings;

(ii) it was inappropriate to seek discovery for the solicitors proceedings; (iii) the categories were too broad and vague and constituted a fishing expedition. The affidavit noted Cottonlane’s shifting justification – whereas the voluntary discovery request sought discovery on the basis that it was necessary for the “proper defence" of the proceedings, its grounding affidavit sought the discovery as being “necessary for the proper prosecution of the plaintiff's claim".

Cottonlane’s Submissions

14. Cottonlane submitted that:

(a) Cottonlane is entitled to Inter Partes Discovery as against the O’Sullivans on the grounds that, in terms of r.12, it, AIB and the O’Sullivans are encompassed by the terms “any party” and “any other party” to a “cause or matter”, being Everyday’s counterclaim.

(b) as a defendant to Everyday’s counterclaim Cottonlane is entitled to Inter Partes Discovery as against AIB as well as the O’Sullivans since, there being no application for independent disposal, claim and counterclaim will be determined together. AIB secured Inter Partes rather than Notice Party Discovery from Cottonlane (by agreement) - fairness requires reciprocal treatment.

(c) While the RSC do not specifically provide for notice parties in plenary proceedings, O.15 r.13 envisages the joinder of persons (i) “whether plaintiffs or defendants, who ought to have been joined” or (ii) “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”. In the first instance, such parties may be joined as plaintiffs or defendants. In the second, as notice parties. (Cottonlane cited Charles Kelly Limited v Ulster Bank Ireland Limited [2019] IEHC 711(“Charles Kelly Ltd”) and BUPA Ireland Ltd v Health Insurance Authority (No. 1) [2005] IESC 80; [2006] 1 IR 201; [2006] 1 ILRM 308 (“Bupa”) as authority for its joinder and participation. In Bupa, Kearns

J. stated that the cases show that: “…where a party has a ‘vital interest in the outcome of the matter’ or is ‘vitally interested in the outcome of the proceedings’ or would be ‘very clearly affected by the result’ of the proceedings, it is appropriate for that party to be a notice party in the proceedings.” Once joined, the extent to which a Notice Party may thereafter participate in proceedings is at the Court’s discretion, on such terms as may appear to be just and in accordance with the circumstances of a given case.

(d) Cottonlane was joined on the O’Sullivans’ application rather than its own (and with the Court’s approval). Its joinder was as a party with vital interests which would be affected by the result of the proceedings and whose presence before the Court was necessary in order to enable the effectual and complete adjudication upon all the questions involved in the cause or matter.

(e) in order to include a person other than a plaintiff in a counterclaim, the additional party must be connected with the original subject matter of the action. By joining Cottonlane as a Notice Party, the other parties and the Court implicitly accepted its substantial connection with the subject matter of the original action.

(f) the respondents’ refusal to provide discovery (on the basis that Cottonlane was merely a Defendant to a Counterclaim) runs contrary to the efficient administration of justice, since the constitution and case management of the case has been guided by the Court. The judges dealing with case management accepted the need for discovery applications by Cottonlane and no issue was taken at the directions hearing. Cottonlane’s joinder, the management of the counterclaim and the determination of discovery are all exercises of the Court’s inherent jurisdiction. The Court was entitled to have regard to the fair and efficient disposal of the proceedings and the balance of justice.

The O’Sullivans’ Submissions

15. The O’Sullivans submitted that:

(a) There is no basis for the application. Discovery must be relevant, necessary and grounded on the pleadings. The need for discovery depends on a factual dispute between the parties, but there is no dispute in the Substantive Proceedings between the O’Sullivans and Cottonlane that is relevant to the issues before the court. Nor can Cottonlane seek discovery for use in the Solicitors Proceedings.

(b) Cottonlane’s only attempt to relate the discovery to the pleadings was its statement that it may be necessary “for the purposes of being fully on Notice of the issues arising the proceedings had herein”. It does not contend that the documents would be evidence of an issue, or that they might advance Cottonlane’s case or damage its adversary’s. The wish to be “on notice” does not suffice. The purpose of discovery is to aid parties in the litigation not to identify grounds for causes of action. Fishing expeditions and “general trawls”

are prohibited. At its height Cottonlane’s position was that the discovery was “likely” to relate to the matters at issues in these proceedings, an averment in the nature of a fishing expedition. Discovery is not be permitted on that basis.

(c) Cottonlane is not a party for O.31 purposes. While r.29 provides for non-party discovery, there is no provision for non-parties to seek discovery from litigating parties. Authorities dating back to Lyell v Kennedy (1883) 8 App. Cas. 217 show that discovery was intended to enable parties to support their case by obtaining discovery from their “opponent”. As Cottonlane is not the O’Sullivans’ opponent in the Substantive Proceedings it has no entitlement to seek discovery from it in those proceedings.

(d) In addition to the relevance requirement, r.12(2)(a) entitles the court to refuse or adjourn an application if, inter alia, discovery is “not necessary at that stage”. The court must be satisfied that the documents sought are relevant to a matter in question in the proceedings and that discovery is necessary when the application is made or in general. Beyond a bare recital of the pleadings, Cottonlane fails to explain why it requires the discovery save for the assertion that it was not available by other means. However, discovery should only be ordered if the applicant establishes that it is relevant and necessary. Cottonlane had not put evidence forward as to relevance to the Substantive Proceedings. Nor does it appear that the documents are relevant to the Counterclaim (which alleges that Cottonlane is not a purchaser for value without notice), since the discovery sought concerns the agreement between the O’Sullivans and AIB. Accordingly, Cottonlane had not discharged the onus of showing that the documents were relevant to issues arising in the Substantive Proceedings or necessary for the fair determination of issues in those proceedings. It also failed to demonstrate how the discovery would advance its case or damage another party’s case in those proceedings. Nor was it entitled to seek discovery to find out whether a document may be relevant. Cottonlane’s justifications were essentially vague, unsubstantiated assertions that cannot be mapped to the pleadings.

AIB’s Submissions

16. While offering to copy to Cottonlane its discovery to the O’Sullivans, AIB said that:

(a) as a notice party, Cottonlane cannot seek inter partes discovery. AIB is not Cottonlane’s opponent in the Substantive Proceedings or the Counterclaim. They are not seeking reliefs against each other. Any request must be for r.29 Non-Party Discovery, including undertakings as to confidentiality and costs. Allied Irish Banks plc v Ernst & Whinney [1993] 1 IR 375 shows the correct approach –when the defendant sought discovery from a notice party it was required to do so pursuant to O.31 r.29 RSC (but the terminology used in this judgment may have given rise to some confusion).1

(b) Cottonlane was only entitled to justify the application on the basis outlined in the Request (rather than the different basis asserted in the notice of motion) – AIB disputed the characterisation of the Request as “qua Counterclaim Defendant”:

(i) the Request described Cottonlane as Notice Party without referencing the counterclaim; (ii) Its opening words notified the Substantive Defendants that the discovery was being sought by them “as Solicitors for the Notice Party”; (iii) It Having acted for the defendant in those proceedings, I suspect that there may be confusion due to references to r.29 discovery as “notice party discovery” whereas “non-party discovery” is more accurate. That litigation involved actions by AIB and the statutory administrator of Insurance Corporation of Ireland against the insurer’s former auditors and the defendant sought discovery from the relevant Minister. However, the latter was not a party (or even a notice party) to the proceedings. I believe that the references to the Minister as a notice party meant that he was a notice party to the r.29 application, i.e the party who would be required to give non-party discovery as opposed to being a notice party in the ongoing proceedings. Accordingly, while illuminating r.29 requirements, I do not consider that the judgment advances the issue as to the basis on which discovery should be sought by or from a notice party to proceedings.

consistently identified Cottonlane as Notice Party rather than as counterclaim defendant; (iv) it summarised the pleadings in the Claim, not the counterclaim; (v) two concluding paragraphs referenced categories that “the Notice Party” required sight of with only a vague reference to the pleadings and without any reference to pleas that would entitle them to the discovery. As Notice Party, Cottonlane was neither making a case nor having a case made against it in the Claim. Therefore, it was neither advancing a case nor seeking to damage an adversary’s case. Accordingly, no litigious benefit arose on its request for discovery as a notice party.

(c) The Request also stated that Cottonlane required the documentation because it was not available to the Notice Party by other means and because it was “relevant to the Notice Party’s related proceedings in Cottonlane Limited v Graham Hanlon (practicing as Hanlon & Company Solicitors) and Gary Daly (practicing as Gary Daly & Company Solicitors) High Court Record No. 2019/9435P…” (“the Solicitors Proceedings”) However, AIB is not a party to those proceedings.

(d) The Request said that the documentation was not otherwise available and was relevant to proceedings to which AIB is not party but identified no legitimate reasons for Cottonlane to obtain the discovery, whether as notice party or counterclaim defendant.

(e) AIB rejected Cottonlane’s contention to be entitled as a counterclaim defendant to discovery from AIB on the basis that: (i) the Request was not framed, and could not now be considered, as a request from a counterclaim defendant. It made no reference to Cottonlane in that capacity. Although Cottonlane’s Notice of Motion and grounding affidavit refer to its being the counterclaim defendant such references did not appear in the original request; (ii) The Schedule to the Notice of Motion detailing the categories sought also differs to the voluntary request.

The grounding affidavit does not explain the alterations; (ii) because it is not a party to the counterclaim, any request from Cottonlane as counterclaim defendant must be made pursuant to r.29(1) as the claim and the counterclaim are independent of, and separate to, one another (as is confirmed by Delany and McGrath, the decision of Pilkington J. in O'Donoghue v Martin [2019] IEHC 598); (iii) O.21, r.10 RSC permits a defendant to make a counterclaim against a person other than a plaintiff, such as in this case, the Statute of Limitations Act 1957 and O.21 r.15 as confirming the independence of claims and counterclaims; (iv) as the Claim and Counterclaim are independent of each another, any request by Cottonlane as a Counterclaim defendant for discovery from AIB which is a non-party to the Counterclaim should be advanced by way of a non-party discovery request; (v) inter partes discovery should be completed between the actual parties to the Counterclaim, before pursuing non-party discovery requests; (vi) by simultaneously requesting discovery from AIB and Everyday in respect of the Counterclaim, Cottonlane was simultaneously seeking inter partes and non-party discovery.

In these proceedings there was an alternative to Cottonlane seeking non-party discovery from AIB as the same documents were sought from Everyday. However, it was procedurally incorrect for Cottonlane to make the request to a party (Everyday) and a non-party (AIB) simultaneously, increasing costs and inconvenience; (vii) if the Request is considered as being from a counterclaim defendant, it is not borne out by the Request as the pleadings cited by Cottonlane are pleas by the O’Sullivans in the Claim rather than the Counterclaim on which Cottonlane requires.

The Request does not link the categories sought to the issues in the counterclaim. The reasons given do not refer to the need for such documents for the counterclaim but suggest that they are required for two entirely different proceedings.

(f) Noting that the Replying Affidavit on behalf of AIB averred that the categories sought were extremely broad, too vague and amount to fishing, which was evident from the words of the categories and from the failure to tie them to issues in the Claim and/or Counterclaim. Discovery is not permitted for "fishing expeditions" and bare assertions unsupported by evidence are not sufficient to ground a discovery application. An applicant is not entitled to discovery based on mere speculation. The Court must be persuaded, as a matter of probability, that the particular documents sought are relevant to issues to be tried.

(g) regardless of whether Cottonlane made the request as notice party or counterclaim defendant it should have done so pursuant to r.29. Even if this had been done, Cottonlane does not meet the criteria for discovery.

(h) Challenging Cottonlane’s submissions that it was joined on the application of the original parties, the O’Sullivans and AIB, with the Court’s approval rather than on its own application, AIB noted that it was the O’Sullivans who applied to join Cottonlane and the Court granted the application following the O’Sullivans’ submissions that Cottonlane had agreed to become a Notice Party.

(i) AIB also relies on its objections to the relevance, necessity and proportionality of the discovery request to submit that, regardless of the status in which Cottonlane made the request, as Notice Party or Counterclaim Defendant, it should not be granted the reliefs sought.

The Law

17. The parties helpfully provided detailed oral and written submissions as to pertinent RSC provisions (and English equivalents) pertaining to, inter alia, Inter Partes and Non-Party discovery and to the joinder of parties and the position of notice parties generally, together with relevant case law and texts. While I have considered all such provisions, submissions and authorities, I need not summarise most of them because many principles are uncontroversial, but my analysis notes key authorities where appropriate. At this stage it suffices to consider authorities dealing with the status of notice parties and counterclaims and a trilogy of English cases dealing with discovery applications in circumstances in which no issue is being litigated between the parties to the application, including a detailed focus on the last of those decisions, Manatee Towing Co & Anor v Oceanbulk Maritime SA [1999] CLC 1197 (“Manatee”).

Status of Counterclaims

18. Key Irish authorities as to the status of counterclaims include the following:

(a) Section 6 of the Statute of Limitations Act 1957, as amended, confirms that, for the purposes of that Act, counterclaims are deemed to be separate actions.

(b) Order 19 establishes the procedural scaffolding for counterclaims:

• r.2 provides that they may be advanced and to be tried in the same action as the original claim, unless the Court determines that the counterclaim “cannot be conveniently disposed of in the pending action, or ought not to be allowed”. (See also r.14 which allows counterclaim defendants to seek directions requiring the counterclaim to be resolved in an independent action).

• r.10 permits the addition of counterclaim defendants who are not party to the original proceedings.

• r.15 confirms that the counterclaim may continue even if the original claim is stayed, discontinued, or dismissed.

(c) Claddagh Jewellers Ltd [2020] IEHC 325 illustrates the practical significance of the independence of claims and counterclaims. The applicant abandoned a shareholder oppression claim under s.212 of the Companies Act 2014 on the eve of trial but, reversing roles, the respondent sought to continue on the basis that he (not the applicant) was the oppressee. Sanfey J determined that there was no jurisdiction to grant reliefs (other than costs) to the respondent on a withdrawn application, but that another pending application (issued by the respondent) constituted an independent s.212 application which could ground the reliefs sought. Although Claddagh did not concern plenary claims, para. 33 of the judgment relied on the fact that counterclaims constitute independent actions which may continue even if the plaintiff’s claim is discontinued or dismissed.

(d) Pilkington J considered the status of counterclaims in O'Donoghue v Martin [2019] IEHC 598. Section 182 of the National Asset Management Agency Act 2009 requires plaintiffs to obtain leave before issuing certain proceedings against National Asset Loan Management DAC (“NALM”). The judgment concerned whether the statutory leave requirement also applied to counterclaims. The counterclaim responded to proceedings issued by a receiver appointed by NALM and named as counterclaim defendants both the receiver and NALM (which was not a party to the original claim). Pilkington J concluded that leave was required. Paragraph 14 of her judgment observed: “The text Delany and McGrath on Civil Procedure (Biehler, McGrath and McGrath – 4th ed.) set out the following characteristics of a counterclaim: -

(a) It sets up a cross-action which is independent of the plaintiff's claim.

(b) It has the same effect as a cross-action enabling the court to pronounce a final judgment in the same action both on the original and on the counterclaim;

(c) They continue (para. 5.59): -‘As stated, the counterclaim sets up a cross-action which is independent of the plaintiff's claim. Therefore, if the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.’

(d) RSC O. 21, r. 10 permits a defendant to make a counterclaim against a person other than a plaintiff, such as in this case.

(e) It is possible that a counterclaim might raise matters which are entirely unrelated to the plaintiff's claim, but which could conveniently be dealt with in conjunction with it.

(f) The assertion (para 13.49) that it is possible to seek security from a defendant in relation to a counterclaim where the defendant is effectively the plaintiff in the proceedings. They point as an example where a plaintiff's claim has been adjudicated upon, but the counterclaim has yet to be determined.

(g) They further point out that where a counterclaim is put forward in respect of a matter wholly distinct from the claim that the counterclaimant may be ordered to provide security for costs if resident outside of the EU”. Paragraph 15 concluded that counterclaims constituted separate and distinct claims within the same proceedings, adding that "claims made within this counterclaim are entirely separate and distinct from the matters advanced by the plaintiff within the statement of claim."

Notice Parties

19. Notice parties are generally added in judicial review proceedings, whether on the applicant’s nomination, the Court’s direction or on the notice party’s own application. Their joinder in public law contexts reflects the recognition of their vital interest in the issue being litigated. The tests employed to determine standing reflect the reality that, although a public body may be the named respondent and will be concerned to defend how it reached its decision or exercised its powers, the outcome of the proceedings will in practice impact on the applicant or the notice party rather than on the public body.

20. The following observations arise concerning the role of notice parties:

(a) In public law contexts, they generally play a full part in the proceedings in respect of issues which justified their joinder. In Spin Communications Ltd t/a Storm FM v Independent Radio & Television Commission (IRTC) & Notice Party [2000] IESC 56 (“Spin”), Keane CJ said that a party which is vitally interested in the outcome must be joined as a party (by the Court if not by the applicant) and that: “once he is in the proceedings protecting his interests, he may find himself in precisely the same position as the respondent”.

(b) Bupa is a typical example of a notice party which is the beneficiary of – and arguably the party most concerned to defend – an impugned decision or the exercise of a statutory power. (Others would be parties securing planning permission or winning tenders). The proceedings concerned Bupa’s (ultimately successful) attack on the procedure leading to the commencement of a statutory risk equalisation scheme which would have required Bupa to pay substantial levies into a fund; as the anticipated beneficiary, the VHI had an interest in defending the outcome. It was accordingly entitled to participate and remained so entitled even when the original judicial review became moot, leaving related issues (including the powers’ constitutionality and their validity under European Union) were litigated in plenary proceedings. The objective justification for the regime was contested, requiring evidence from both insurers as to the need for and consequences of the scheme, with both insurers criticising each other’s pricing. VHI argued that, as incumbent prior to the introduction of competition, its older customer base meant it could not compete without risk equalisation, whereas Bupa argued that the scheme would render its business unviable, requiring it to subsidise its much larger competitor and force it to quit the market and that the scheme was anti-competitive and contrary to European Union. Law. Accordingly, although plenary proceedings, the litigation essentially concerned public law issues – VHI and Bupa were not asserting claims against each other. Para. 26 of the judgment of Kearns J echoed Spin Communications, noting that:

“where a party has a ‘vital interest in the outcome of the matter’ or is ‘vitally interested in the outcome of the proceedings’ or would be ‘very clearly affected by the result’ of the proceedings, it is appropriate for that party to be a notice party in the proceedings.”

21. Accordingly, in practical terms, the main protagonists in public law contexts may be the applicant and notice party, rather than the titular respondent. The full rights of participation enjoyed by the Notice Party in such public law contexts are demonstrated by the Supreme Court’s decision in Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4 (“Ballyboden”):

(a) Donnelly J noted at para. 34 of her judgment that once joined to judicial review proceedings on the basis of its “vital interest” in the outcome: “an interested party has a right to protect their interests and to advance arguments that may not be made by the decision-maker. Interested parties who participate in the proceedings are consequentially liable to seek security for costs, to be awarded costs and to have costs awarded against them. … there is no statutory prohibition on a person directly affected from continuing to defend an administrative decision where the decision-maker concedes.”

(b) She added at para. 36 that: “It is accepted by all parties that, despite no express provision in the rules, a party who is served with proceedings becomes a notice party and thereafter is entitled to file a Statement of Opposition grounded on affidavit. In the usual course and, at the option of the notice party, there is full participation by the notice party in the contested hearing regardless of whether the decision-maker (like the Board) takes an active part or does not take an active part.”

(c) Significantly, the decision confirms that the beneficiary of an administrative

decision challenged by judicial review by a third party may continue to defend the

decision even if the decision-maker concedes that the decision should be quashed.

Can Inter Partes Discovery only be ordered in private law proceedings as between opposing parties?

22. The RSC do not expressly provide for a Notice Party to seek discovery. (There are few references to notice parties). However, I must decide whether the RSC envisage that discovery orders under O.31 r.12 should only be made as between opposing parties and in respect of issues which are being litigated between them. The following authorities and texts are particularly relevant:

(a) Rule 12(1) allows “any party” to seek an order directing “any other party to any cause or matter” to discover documents “relating to any matter in question therein”. (Cottonlane says that it is such a party, whereas the respondents say that “any party” means parties litigating issues against each other).

(b) Abrahamson, Dwyer and Fitzpatrick on Discovery and Disclosure (3rd ed., 2019) (“Abrahamson”) notes the equitable origins of discovery at [1-04], emphasising a party’s entitlement to inspect their opponent’s documents.

(c) The seminal English Court of Appeal decision on relevance, Compagnie Financière du Pacifique v. Peruvian Guano Company [1882] 11 QBD 55 (“Peruvian Guano”), explained the concept of relevance in terms which envisage opposing parties. Its classic definition is that relevant documents enable the applicant to advance their case or to damage their adversary’s.

(d) Lyell v Kennedy concerned a plaintiff’s entitlement to deliver interrogatories to the defendant on the title to the land (in an action for recovery of land). The House of Lords affirmed the general rule that a litigant has a right to discovery from his opponent” (emphasis added) to support his own case, as Lord Bramwell put it. Lord Fitzgerald described the purpose of interrogatories in similarly adversarial terms at p.33 stating that the legislation and order “confer on the litigant in every action the right to exhibit interrogatories to his opponent, subject to the protection given by the exercise of judicial discretion … and probably the intention was to give the litigant in all cases a right to interrogate his adversary as to every relevant matter on which he could examine him, if he thought fit to call him as his witness on the trial of the cause.” (emphasis added)

(e) The Supreme Court and Court of Appeal have explained discovery in similar terms in many cases, including Ryan v Dengrove DAC [2022] IECA 155 (“Dengrove”) and Tobin v Minister for Defence [2019]IESC 57;[2020] 1 IR 211 (“Tobin”). Tobin endorsed observations of Fennelly and Kelly JJ in Dome Telecom Ltd. v. Eircom Ltd. [2007] IESC 59;[2008] 2 IR 726 (“Dome Telecom”) and in Astrazeneca AB v. Pinewood Laboratories Limited [2011] IEHC 159 (“Astrazeneca”) as to the need for proportionality between the discovery and the degree to which it might advance the applicant’s case or damage their opponent’s.

(f) In Dengrove, the Court of Appeal also noted the need for proportionality between the burden and the degree to which documents would advance the applicant’s case or to damage their opponent’s.

23. Two English cases confirm the traditional position that co-defendants could not seek discovery against each other in respect of issues which were not in dispute between them, while a third, Manatee, adopted a different approach in England & Wales, although the rules have changed in that jurisdiction in any event. The original English rule, like the current Irish r.12, permitted any party to seek discovery from “any other party” but this was deemed to only encompass discovery requests between codefendants in certain circumstances. This appears from Brown v Watkins (1886) 16 QBD 125 and Shaw v Smith (1887) 18 QBD 183 which interpreted the entitlement to seek discovery from "any other party" as referring to opposite or opposing parties:

(a) In Brown v Watkins the two defendants were respectively sued in contract and negligence. One defendant was alleged to have breached a contractual term. The plaintiff’s alternative claim against the other defendant was on the basis of the latter’s negligence in the event that the relevant contract did not contain the crucial term. The Court rejected one defendant’s application for discovery from the other, concluding that the phrase "any other party" meant "the opposite party". Mathew J said at pp.127-28 that he could not think:

“… that the words ‘any other party’, in rule 12 were intended to mean anything but the ‘opposite party’ referred to in the rules relating to interrogatories. I am confirmed in that view by the forms relating to discovery in the appendices to the rules, which all seem framed to meet the case of discovery from opposite parties. Furthermore, on looking at Order XXXII., rr.1 and 4, it will be found that precisely similar words are used to those in Order XXXI., r. 12, viz. ‘any party’ and ‘any other party’, and yet it is obvious that in those rules only opposite parties can be meant.”

(b) Likewise, in Shaw v Smith the Court considered that co-defendants could generally only seek discovery against each other if there was “a right to be adjusted" between the parties to the particular application to which such discovery was material, observing that without such a “foundation” the co-defendant could not seek discovery. That case concerned a co-defendant’s application for physical inspection of another’s mine under a rule allowing “any party” to seek inspection. The claims against each defendant were discrete - the plaintiff alleged that one defendant breached its right to quiet enjoyment while the other infringed its property rights. Lord Esher MR said that any such application must be against some other party in the cause. He did not interpret Brown v Watkins as determining that discovery could only ever be by plaintiffs against defendants or vice versa. However, such discovery must always be sought “by and against parties between whom there is some right to be adjusted". Inspection could only be ordered between co-defendants if there were rights to be adjusted between them to which such inspection was material. Lindley LJ agreed and noted that: "the discovery and inspection must have some foundation and must depend on some other right. It cannot exist, I think apart from any community of interest or any question of rights to be adjusted between the parties”.

24. A more recent English decision, Manatee, relying on changes to the wording of the relevant English rules, concluded, contrary to Brown v Watkins and Shaw v Smith, that there was a jurisdiction to order discovery even where the parties to the discovery application were not opposing each other on the issue to which the discovery relates. The Manatee facts are complicated but analogous to these applications. It involved a claim, counterclaim and third-party claim and the discovery application was in the context of the counterclaim. Brokers named as defendants to the defendants’ counterclaim (and separately the subject of a third-party claim issued by the original plaintiffs, their erstwhile clients) sought discovery from the original plaintiffs for the purpose of the counterclaim. In summary, the position was as follows:

(a) In the substantive claim, the plaintiffs sought a declaration that no contract had been concluded for the sale of a tanker to the defendants so there was no basis for arbitration proceedings to enforce the contract.

(b) The defendants’ counterclaim named as defendants both the plaintiffs and the brokers who had represented them in the negotiations, alleging a concluded contract or, in the alternative, that the brokers were liable for breach of warranty of authority. (The counterclaims were discrete).

(c) The plaintiff also commenced third-party proceedings against the brokers alleging that, if the latter had concluded the contract, then they had exceeded their authority.

(d) In the context of the counterclaim, the brokers sought discovery from the plaintiff of documents concerning the tanker’s condition. Such documentation was exclusively relevant to the quantum of the defendant's counterclaim against the brokers. (If a concluded contract had been established, quantum issues would have been matters for arbitration but the arbitration clause would not apply if there was no contract). If the defendants’ breach of warranty of authority counterclaim against the brokers had succeeded then, to contest quantum, the brokers would have required disclosure from the plaintiffs about the condition of the vessel.

(e) Rix J considered the jurisdiction to order the plaintiffs to give discovery relevant to issues arising between other parties (the third party and the defendants). He framed the issue as being whether one party can obtain discovery against another in the same action on a matter which is not in question between them. He reviewed Brown v Watkins and Shaw v Smith noting at p.10 that the latter’s rationale: "was that ‘any other party’ meant any other party as between whom and the applicant party there was a question of rights to be adjusted”.

(f) The court concluded that the discovery by the plaintiff was necessary to fairly dispose of the defendants’ against the brokers and such disclosure would not otherwise be available. Rix J. held that the evolution of the language of the (then) English rules (which were just about to be replaced by the modern English Civil Procedure Rules(“CPR”)) made the earlier cases of doubtful value. He noted that, although the counterclaim was a separate action the claim, counterclaim and thirdparty proceedings would be tried together in a single trial. He concluded that the Court could order one party to make discovery to another party even in respect of matters which were not in issue between them but acknowledged that “the circumstances in which one party may be justified in calling for discovery of documents from another party where no material issue directly arises between them may be rare. That, however, seems to me to raise a question of discretion, not of jurisdiction”.

(g) Rix J emphasised that the applicant still had to satisfy the court that the discovery was necessary for disposing fairly of the cause or matter or for saving costs.

Analysis

25. At the outset I will deal with a preliminary point, which was not briefly touched on in submissions. Cottonlane accuses AIB and the O’Sullivans of inconsistency, contrasting their opposition to the current applications to their own requests for discovery. While any such inconsistency may be unattractive, I must determine these applications on the basis of the RSC. Cottonlane’s forbearance from taking points in answer to other parties’ discovery application does not necessarily preclude those parties from taking such points on their own behalf if so advised.

26. My starting point is the nature of the proceedings and the parties’ respective roles. I disregard the Solicitors’ Proceedings because AIB and the O’Sullivans are not party to them, and they cannot ground these applications. I can only make orders for discovery for this litigation. Documents obtained on discovery are subject to an implied undertaking that they will not be used for other purposes save with the Court’s leave. Breach of that prohibition constitutes contempt. (See Delany and McGrath on Civil Procedure 5th ed. at para. [10-215] and the authorities cited therein). Having obtained discovery for use in one proceeding, parties may in exceptional circumstances apply for leave to use such discovery for the purposes of other proceedings (See Roussel v Farchepro Ltd [1999] 3 IR 567). Cottonlane might have been able to pursue that route if it had originally secured for the purpose of these proceedings and later wished to use it in the Solicitors’ Proceedings. That is not what it is doing. It seeks discovery in these proceedings for use in other proceedings, an abuse of process.

27. To recap on the other litigation roles relied upon to ground the applications:

(a) The O’Sullivans brought the Substantive Claim against AIB, later adding Everyday as a defendant and Cottonlane as a Notice Party. It concerns whether the 2014 Agreement between the O’Sullivans and AIB obliges AIB (and its successor in title) to release the charges.

(b) Everyday’s Counterclaim against the O’Sullivans and Cottonlane impugns the validity of the transfer to Cottonlane. AIB is not a party to the Counterclaim.

28. As appears from the authorities cited above, claims and counterclaims are separate claims. In practice, when addressing discovery, litigants often pragmatically ignore such distinctions. A party already discovering material at one party’s behest may not find it onerous to make similar disclosure to parties whose entitlement is less obvious. Furthermore, there may be reciprocal benefits if everyone can access everyone else’s discovery without being confined to their role in claims, counterclaims or third-party proceedings. In other cases, claims and counterclaims may predominantly involve rival groupings of associated entities, and the legal distinction may be of little practical effect, or “lead” parties may naturally assume lead roles in the litigation with others adopting “best supporting actor” roles. However, while the distinctions may often be ignored, the RSC, authorities and texts make clear that, although (when appropriate) counterclaims and third-party claims may be heard with the original claim, they remain separate proceedings, even if determined together.

29. As AIB is not a party to the Counterclaim, any discovery application against it in that context requires a Non-Party Discovery Application. Of course, the O’Sullivans are defendants to the Counterclaim and Shaw v Smith confirms that discovery may be sought as between co-defendants if there is a right to be adjusted between them. However, the categories sought and corresponding justifications concerned the Substantive Claim, not the Counterclaim. The attempt to justify the discovery by reference to the Counterclaim was an unconvincing afterthought as that was not the basis for the requests. Such a material divergence from the voluntary discovery request is impermissible (see Sheehy and McAuley v. The Government of Ireland and Ors. (Unreported, High Court, 30 July 2002) and Swords v Western Proteins Limited [20001] 1 IR 324; [2001] 1 ILRM 481).

30. While making allowance for the possibility that Cottonlane’s identification in the voluntary discovery requests as the “notice party" rather than as the “notice party/counterclaim defendant" might have been driven by a commendable concern for brevity rather than to limit the basis on which it sought discovery, I must conclude that the requests were framed by reference to the substantive proceedings rather than the counterclaim or Cottonlane’s role therein. In any event, if discovery was being sought from AIB in the counterclaim to which AIB was not party, a Non-Party Discovery Application would be required (once other routes were exhausted).

31. Since Cottonlane’s applications cannot be justified by reference to the Counterclaim, the issue is whether, as a notice party to the Substantive Claim, Cottonlane can seek discovery or whether such discovery is limited to the parties actively litigating relevant issues. Cottonlane seeks unfettered discovery entitlements on foot of the High Courts’ directions adding it as a notice party and providing for its issuing of the applications). Accordingly, it is necessary to consider whether its status as a notice party implies that Cottonlane enjoys the same discovery entitlements as other parties. As a notice party, does it merely enjoy “observer status” or has it become a full combatant in the main proceedings?

32. I have seen no evidence as to the rationale for the joinder. There must have been discussions between Cottonlane and the O’Sullivans before the latter informed the Court of Cottonlane’s consent. Indeed, the latter would scarcely have brought the application without first consulting Cottonlane. While the O’Sullivans and Cottonlane have not disclosed their communications, I expect that they cooperated to join Cottonlane because of their common interest in the release of the charges. However, there is no suggestion that they (let alone AIB) agreed “rules of engagement” as to what this would mean as the action progressed, or that directions were sought or given by the Court to determine the basis for or extent of Cottonlane’s role as notice party. All we know is that the O’Sullivans joined Cottonlane, presumably to secure an ally’s anticipated support of or, possibly, staving off a claim by Cottonlane (for failing to deliver clear title) by demonstrating their efforts to secure the release of the charges. While Cottonlane’s joinder must surely have reflected a considered decision on its (and the O’Sullivans’) part, the extent of its role or any restrictions in that regard were not discussed by the parties or determined by the Court.

33. In particular, the joinder order does not specify whether, once joined, Cottonlane was at large, entitled to fully participate in the litigation of any issue between other parties or whether it has a more limited role.

34. As a matter of basic principle and in the absence of any evidence as to the parties’ or the Court’s intention, I do not consider that joinder of a notice party in private law proceedings constitutes acceptance of an unfettered entitlement to participate in the defence or prosecution of issues which do not involve it, let alone to seek discovery in respect of such issues. Nor would I place great weight on the subsequent case management consent orders which provided that Cottonlane could seek discovery from other parties and vice versa.

35. Since the issue does not seem to have been expressly raised or considered, Cottonlane’s status as a notice party cannot be interpreted as a judicial carte blanche, entitling it to seek Inter Partes Discovery from the O’Sullivans and AIB. There is no evidence that the Court was asked to consider the issue. Nor do the case management directions advance matters. When conducting directions hearings and making orders on consent the Court is seeking to progress actions efficiently. It would have been premature to determine such issues (or for other parties to challenge such entitlements) at that stage and in the abstract. Granting a party leave to bring a motion within a particular period does not imply that the Court has determined (or that other parties have conceded) the merits of the application or the applicant’s entitlement to bring it. Such issues fall to be considered at the appropriate time if necessary. In any event the 2 March 2023 and 10 June 2024 directions did not determine whether any voluntary discovery should be requested pursuant to r.12 or pursuant to r.29 and therefore those directions cannot be deemed to have determined that issue.

36. I accept Cottonlane’s submission that, once joined, the extent of a Notice Party’s subsequent participation is at the Court’s discretion, on such terms as may appear just and in accordance with the circumstances of a given case. Any such discretion must be exercised in the context of the pleaded issues. I am not satisfied that it is just and appropriate that Cottonlane should be entitled to seek discovery in respect of issues which it is not itself litigating. The issues arising in the Substantive Proceedings fall to be litigated by and between the plaintiffs and the Defendants and on the basis of the pleadings (and no pleadings have been served on Cottonlane’s behalf in the Substantive Proceedings). Whether the 2014 Agreement obliged AIB to release the charges on the four units is an issue between AIB and the O’Sullivan. Cottonlane may well have an interest in consequential orders sought depending on the resolution of that issue. I assume that that was the basis for its joinder. However, that indirect interest does not justify its current wide-ranging requests for discovery in respect of issues which do not directly concern it.

37. As appears from authorities cited above, notice parties are often added in judicial review proceedings. Their joinder in public law contexts reflects the recognition of their vital interest in the issue being litigated. The various tests employed to determine standing reflect the reality that, although a public body may be the named respondent and will be concerned to defend the integrity of its decision making, the outcome of the proceedings will, in practice, impact on the applicant or the notice party rather than on the public body. Spin and Ballyboden confirm that in such public law contexts, notice parties enjoy full rights to defend proceedings. Although a plenary proceeding, Bupa is a prime example of a party, VHI, being entitled to participate in respect of issues capable of adversely and directly his or her substantial interests. Having acted in Bupa, my recollection is that both Bupa and VHI gave discovery and had access to each other’s disclosure (by agreement rather than by direction).

38. However, the rationale and jurisdiction for the joinder of notice parties and the procedural consequences of any such joinder is more difficult to discern in purely private law contexts. In civil claims, the Court is adjudicating private law issues as between the plaintiffs or defendants litigating those claims or counterclaims. The issues between them are framed by the pleadings which are the root of the Court’s jurisdiction. Reliefs are framed by and confined to the pleadings and the rights and liabilities of the litigating parties inter se.

39. My conclusion as to Cottonlane’s limited role is reinforced by contemplation of the possibility of a settlement between the principal protagonists or a concession of liability by one side or the other. Ballyboden demonstrates that in public law contexts a notice party may continue to litigate issues in appropriate circumstances even if the respondent decision maker concedes that a decision was flawed. It is difficult to see how Cottonlane could have any such entitlement if the O’Sullivans were to capitulate to AIB. Whereas the notice party in Ballyboden could continue fighting the good fight, Cottonlane could scarcely step into the O’Sullivans’ shoes and assert that there had in fact been a binding commitment by AIB to the O’Sullivans in 2014 to release the charges. Cottonlane’s only entitlement to intervene would arise if there was an attempt to secure an order which directly impacted on its own legal rights (such as the reliefs sought by Everyday in its counterclaim, quashing the transfer to Cottonlane). It may be in Cottonlane’s interests that the parties should contest the terms of the 2014 Agreement and that the O’Sullivans should win that battle. However, absent privity of contract, Cottonlane has no interest which would allow it to litigate that issue.

40. Significantly, there is no evidence before me to confirm the rationale for the joinder as communicated to the Court either in contemporaneous submissions or in any grounding affidavit or as to AIB’s contemporaneous position in respect of the application. Cottonlane evidently consented to the O’Sullivans’ application. In practice, unless they expect to be seriously prejudiced by such applications (because, for example, because joinder would complicate litigation or increase its expense) defendants often adopt neutral positions in response to such applications on the basis that it is a matter for the plaintiffs to identify the parties. The application would have received limited judicial scrutiny as it was uncontroversial and because (within reason) the nomination of defendants is often treated as the plaintiff’s prerogative – see for example Charles Kelly Ltd, in which Reynolds J noted authorities which confirm that a party will only rarely be joined as a party to civil proceedings against the Plaintiff’s will, such as the Supreme Court’s decision in Barlow v Fanning [2002]

2 IR 593 and YAP v. Children’s University Hospital Temple Street Limited [2006] IEHC 308 (in which Clarke J. rejected an application to join a notice party, referring to “the obligation on the courts to keep private proceedings down to the parties whom the plaintiff chooses”. However, Reynolds J cited the Supreme Court’s comments in Dowling & Ors v. Minister for Finance & Ors, [2013] IESC 58 which differentiated between private law and public law proceedings, while noting that that distinction is not always absolute: “…the position is significantly different depending on whether the proceedings are purely civil and private or whether they concern issues of public law. In civil litigation, generally speaking parties are allowed to choose whom they wish to sue. In matters of public law persons other than the public authority may have a real and substantial interest in the outcome… Civil and public law proceedings are not, however, in completely watertight compartments. There is an underlying principle that a person is entitled to participate in proceedings which are capable of adversely and directly affecting his or her substantial interests”.

41. In this case the issue was the terms agreed by the O’Sullivans and AIB when they negotiated the 2014 Agreement. It is difficult to see what role Cottonlane could have in determining that issue; the ancient doctrine of privity of contract would militate against any such intervention. I accept that, as the current registered owner of the four units (subject to the registered charges) Cottonlane may have an interest in the terms of reliefs which might be granted by the Court depending on the resolution of the issues as to the terms of the 2014 Agreement (if such reliefs could impact on its title). That is the only evident basis on which its joinder can be justified.

42. If the O’Sullivans’ contentions are eventually upheld, Cottonlane would be well placed to support their demand that the charges should be released (but there could be little contest in that scenario). Cottonlane’s role as notice party could be more relevant if AIB successfully refuted the claim that it agreed to the sale of the Four Units or the release of the charges. In that scenario, Cottonlane would presumably argue that, even if the O’Sullivans wrongfully sold the units, it bought in good faith and the transaction should stand, particularly since the lender’s interest was protected by the charges. Accordingly, Cottonlane’s direct interest in the proceedings concerns reliefs which may be granted depending on the resolution of the substantive issues. However, it has no direct interest in the terms of the 2014 Agreement (being the issue to which its discovery request is directed).

43. Applying the Charles Kelly Ltd approach to the current litigation, it seems to me that an adverse resolution of the controversy as to the terms of the 2014 deal between the AIB and the O’Sullivans is only indirectly capable of adversely affecting Cottonlane’s interests. The only direct impact would depend on any reliefs which might be sought on foot of any such ruling and that, in the absence of any specific agreement between the parties or direction from the Court, Cottonlane’s role as notice party must logically be limited to that issue.

44. Although Cottonlane relied on Reynolds J’s judgment in Charles Kelly Limited -v- Ulster Bank Ireland Limited [2019] IEHC 711 I do not think that judgment assists them. Reynolds J rejected a former director and shareholder’s application to become a party to proceedings between the Company and its bank. Applying O.15, r.13 at para. 26 she identified the issue as being whether he had an interest in the outcome of the proceedings and whether his joinder was necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. Applying that approach, it seems to me that Cottonlane’s joinder can only be justified in relation to any reliefs which might impact it, rather than in respect of the terms of the 2014 deal. Cottonlane is not privy to the 2014 Agreement - it has no direct interest, nor is its joinder (or associated discovery) necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in relation to that issue. It does have a direct interest in any orders consequential to the determination of that issue and I believe that that is the only obvious rationale for its joinder.

45. I am satisfied that the interpretation which I have adopted is consistent with the way in which O.31 r.12 has been traditionally interpreted and applied. The provision envisages Inter Partes Discovery applications being made as between opposing parties in respect of issues between them. In O.31 r.12(1) the phrase “any party” means parties advancing or defending claims against each other – the provision generally envisages plaintiffs seeking relevant and necessary discovery from defendants and vice versa. The authorities and texts I have cited at paras. 22 to 24 support that conclusion with the possible exception of Manatee. Any application for Inter Partes discovery is grounded on the relevance and necessity for such discovery by reference to matters in issue in the pleadings. However, I do not see how such fundamental concepts as relevance and necessity can be meaningfully applied in the context of Cottonlane’s position in the Substantive Proceedings since it has served no pleadings in those proceedings. Its position contrasts to the more active role often assumed by Notice Parties in judicial reviews. I see no indication that r.12 was intended to allow a party to seek discovery in respect of a private law claim which it was not asserting or defending on its own behalf and in which it was not seeking or opposing any relief.

46. In terms of the conceptual basis for my conclusion, I have cited the observations in Abrahamson as to the equitable origins of discovery, which emphasise a party’s entitlement to inspect their opponent’s documents. In that context I am reminded of the ancient maxim that “equity does nothing in vain” a principle which would militate against a discovery application by a notice party to the extent that no claim was made or relief was sought by or against it) and no issue arose in the pleadings. I am satisfied that the “opponents” as far as the 2014 Agreement are concerned are the O’Sullivans and AIB rather than Cottonlane.

47. At para. 22 I have noted language in classic authorities such as Peruvian Guano, Dengrove, Dome Telecom, Astrazeneca and Tobin which does not sit well with Cottonlane’s request for disclosure relating to an issue in respect of which it is a stranger. Such terminology implies that discovery is intended to enable opposing parties to litigate a lis between them not to encompass notice parties with no interest in the issue.

48. A fundamental tenet of r.12 is that it only permits applications where each category sought is demonstrably necessary for disposing fairly of the cause or matter or for saving costs. Cottonlane cannot meet these requirements since: (i) it is not a party to the alleged agreement with which the application is concerned; (ii) it is neither a plaintiff nor a defendant as far as the Substantive Claim is concerned and has not served pleadings therein; (iii) the actual plaintiffs and defendants have determined the parameters of the discovery required to their mutual satisfaction and in response to the pleadings between them; (iv) Cottonlane has been offered (admittedly conditional) access to discovery agreed by the plaintiffs and AIB but has not availed of that opportunity (and therefore cannot assert that such discovery is insufficient).

49. I agree with the observation of Laffoy J in Fitzwilton Ltd v Mahon (Unreported, High Court, 16 February 2006) that there is no difference in principle in the approach to discovery in plenary as opposed to judicial review proceedings, but that the practical application of the principles meant discovery is necessary less frequently in judicial review proceedings. A discovery application by a notice party which has filed a statement of opposition and affidavit in judicial review proceedings would have a concrete pleading foundation, unlike this situation in which Cottonlane has delivered no pleadings or affidavits in the Substantive Proceedings nor is there any obvious basis on which it could legitimately do so in circumstances in which it is as stranger to the 2014 Agreement - the lis is between the O’Sullivans and AIB.

50. My approach is consistent with the most relevant traditional authorities:

(a) In Brown v Watkins the fact that each defendant had an interest in the outcome of the plaintiff’s claim against the other was not sufficient to justify discovery orders as between them. The position is the same here.

(b) Shaw v Smith highlighted the need for “a right to be adjusted" as between parties to discovery applications, but no such right appears to arise in respect of the Substantive Claim as far as Cottonlane is concerned.

51. If I was adopting the issue as a matter of first impression, I might have been attracted by the pragmatic approach adopted in unusual and complicated circumstances in Manatee. However, Brown v Watkins and Shaw v Smith are well established authorities, and I am not convinced that I can or should distinguish them on the basis adopted in Manatee. Rix J justified his departure on the basis of the evolution of the English rules from the phraseology which underpinned the two earlier decisions but the parties have not identified any change to the Irish wording which would justify a similar departure in this jurisdiction; to the contrary it appears to me that the wording of our Irish r12 is essentially the same as the wording which underpinned Brown v Watkins and Shaw v Smith. The provision has consistently been interpreted as only permitting discovery between opposing parties with r29 offering an alternative route in appropriate circumstances. The opposing parties on the Substantive Claim are the Plaintiffs and Defendants as they dispute the terms of their 2014 Agreement.

Cottonlane is a stranger to that issue. Its interest in the potential consequences depending on the determination of that issue do not justify its intervention to seek discovery.

52. Even if I agreed on the basis of Manatee that the Court does have jurisdiction to order discovery under r.12 even when the discovery did not relate to any issues between the parties to the particular application, I would still refuse the applications. Rix J emphasised that the circumstances in which such discovery was appropriate would be rare – the peculiar facts of Manatee were one such case (because the plaintiffs were outside the jurisdiction, the discovery order was the only way that the brokers could secure the documents required to refute the defendants’ quantum claim and the interpretation of the then rules was about to become academic with the advent of the new CPR). However, the current scenario is not one of the rare cases in which, according to Manatee, such applications can be entertained.

53. For completeness, I should note that, although in Manatee the Court was pragmatically influenced by the fact that the fact that the claim and counterclaim were to be tried and determined as one action, other authorities confirm that that is not sufficient to justify discovery on an inter partes basis unless it relates to an issue between the parties to the discovery application. Inter Partes Discovery applications must be based on the relevance and necessity of the discovery for the determination of issues in the proceedings and this means the pleadings between the parties to the application, failing which non-party discovery should be sought.

54. For completeness I should note that, while the current applications are flawed, Cottonlane may in future seek non-party discovery either in the Counterclaim against AIB or against both the O’Sullivans and AIB in the Solicitors’ Proceedings (providing such requests comply with r.29 etc). In doing so it will need to meet the usual requirements with regard to identifying the categories sought and explaining their relevance and necessity by reference to the issues in the relevant pleading. As the authorities demonstrate, applications for “fishing expeditions” and “general Trawls” will not be entertained. Furthermore, an application for Non-Party Discovery will seldom be appropriate prior to the applicant exhausting Inter Partes Discovery opportunities, nor could Cottonlane have satisfied the necessity requirement in this case in circumstances in which it had failed to avail of the documents tentatively offered by AIB, but without demonstrating why that offer was insufficient.

55. In summary, I do not agree that Cottonlane’s joinder as a notice party implied that its presence was necessary in order to enable the Court to adjudicate on the terms of the 2014 Agreement. Its joinder can only have reflected the possibility that it would be affected by the determination of that issue and that its presence before the Court might be necessary in order to enable the effectual and complete adjudication upon all the questions involved in the cause or matter (namely the appropriate reliefs depending on the resolution of the issues between the O’Sullivans and AIB). The only possible basis for considering Cottonlane’s participation necessary is to determine the reliefs depending on the determination of the primary issue as to the terms of the 2014 Agreement. I do not see any role for Cottonlane in the litigation of that primary issue.

56. I will list the matter for final orders on 16 October 2025 at 10:30am.

APPEARANCES

Mr. Ronnie Hudson BL, instructed by Maxwell Mooney & Company Solicitors, for the plaintiffs Mr. Jadel Naidoo BL, instructed by AIB Legal Department, for the First Defendant Ms. Fionnuala Ní Dhúgáin BL, instructed by Byrne Wallace Shields LLP, for the Second Defendant Mr Eoin Clifford SC, instructed by Hallissey & Partners LLP, for the Notice Party