High Court orders discovery of third-party complaints against concrete supplier due to fraud allegation and specific defence plea.

COMMERCIAL COURT

[2025] IEHC 677

RECORD NUMBER 2023/3154P

THE HIGH COURT

BETWEEN

KC CAPITAL PROPERTY GROUP LIMITED

PLAINTIFFS

AND

KEEGAN QUARRIES LIMITED

DEFENDANTS

JUDGMENT of Mr. Justice Twomey delivered on the 4th day of December, 2025

INTRODUCTION

1. The defendant (“Keegan Quarries”) supplied concrete to the plaintiff (“KC Capital”), which KC Capital says was of insufficient strength. KC Capital claims that this led to it suffering losses of circa €14 million in connection with the development of an office block at 45-47 Cuffe Street in Dublin 2. KC Capital is seeking discovery of any documents which evidence complaints made by third parties to Keegan Quarries claiming that the concrete was of insufficient strength or otherwise unfit for purpose.

2. Keegan Quarries has refused to provide discovery as it says this litigation concerns alleged flaws in the concrete supplied to KC Capital and therefore the concrete supplied to third parties, and any complaints regarding same, are irrelevant.

3. As a matter of principle this is not disputed by KC Capital. However, it claims that a less strict regime applies to discovery when fraud is alleged, and in this case fraud is alleged by KC Capital against Keegan Quarries. Furthermore, it says that the disclosure of the complaints is relevant because Keegan Quarries has pleaded in its Defence, not simply that it did not provide understrength concrete, but that any diminution in the strength of the concrete was caused by named and unnamed agents of KC Capital. Accordingly, KC Capital claims that the disclosure of any complaints about concrete strength (if they exist) will weaken this plea made by Keegan Quarries. For these reasons, KC Capital says that discovery should be ordered of this category.

BACKGROUND

4. KC Capital, a property developer, is suing Keegan Quarries, a concrete supplier, for a sum of circa €14 million, which it claims it is owed, as a result of Keegan Quarries supplying defective concrete to a contractor of KC Capital, Grant Fit Out Limited (the “Original Contractor”), for KC Capital’s development of an office block in Dublin 2.

5. KC Capital claims that Keegan Quarries supplied defective ready-mix concrete to the Original Contractor, which was poured at the Cuffe Street site, but subsequently condemned by the development’s architect (Mr. Pascal Mahoney of Mahoney Architecture) and consulting engineer (Mr. Liam Gleeson of GK Consulting Engineers)

(collectively, the “Design Team”) for being understrength. It is alleged by KC Capital that the concrete did not meet the compressive strength requirements specified by it, and it is pleaded that Keegan Quarries must have been aware of this and fraudulently represented that its product met these requirements. It is specifically alleged that the concrete provided did not contain ‘ground granulated blast furnace slag’ as approved by KC Capital’s engineer (an ingredient necessary for meeting certain energy ratings/standards), that the concrete supplied did not use the correct grade of cement to meet the compressive strength requirements, and/or that it was adulterated with other materials which reduced its compressive strength.

6. The plaintiff’s claims are grounded upon the expert reports of Professor Peter Robery (a forensic engineer) who conducted an analysis of tests, batch records, dockets and schedules relating to the concrete delivered. His opinion was that Keegan Quarries made changes to the concrete mixes without approval or notification of KC Capital’s engineer, that Keegan Quarries did not use the required and approved grade of cement (CEM-1) for the concrete mix, and mixed the cement with a substitute ‘unreactive powder’ which caused the concrete to not have the required compressive strength, once poured and mixed with water on the site (despite appearing as normal and stable).

7. KC Capital claims that this defect required the removal and replacement of the concrete, causing a considerable setback in the development and causing losses to KC Capital of circa €14 million.

8. Keegan Quarries, on the other hand, claims that concrete of the wrong specification was ordered on behalf of KC Capital and/or that there was shoddy workmanship in the pouring of the concrete by the Original Contractor which led to defects in the finished product, but that these were not its fault. Keegan Quarries also provided its own test results, known as cube test results, and batching records, in disputing that the concrete provided was understrength.

The category of documents being sought

9. Against this backdrop, KC Capital seeks the following disputed sub-category of discovery (Category 6[b]) from Keegan Quarries: ‘All documents evidencing or recording any complaints, claims or disputes involving the supply by [Keegan Quarries] during the period from 1 January 2022 to 31 December 2023 of concrete alleged to be of insufficient compressive strength or otherwise unfit for purpose, including but not limited to those complaints, claims or disputes identified at paragraph 16 of the affidavit of Mr. David Kennan sworn in these Proceedings on 6 December 2023.’

10. The reasons grounding the request for discovery of Category 6(b), as expressed in the request for voluntary discovery, were as follows: ‘In the context of the application of [Keegan Quarries] in the Proceedings for security for costs made by Notice of Motion issued on 20 November 2023, [KC Capital] adduced evidence of a series of recent disputes in which [Keegan Quarries] had become involved regarding the quality and / or suitability of concrete supplied by it. This evidence included paragraph 16 of the affidavit of Mr. David Kennan of [KC Capital] sworn on 6 December 2023. In his supplemental affidavit sworn on 21 December 2023, Mr. John Keegan of [Keegan Quarries] did not dispute that such disputes had arisen, but sought to downplay their relevance to the Proceedings. The Plaintiff maintains that the existence of recent complaints which are substantively similar to those made in the Proceedings is a matter which is directly relevant to, and corroborative of, the claims made in the Proceedings. The Plaintiff has no alternative means of access to such documents, which will readily be within the possession, power and / or procurement of the Defendant.’

11. Keegan Quarries responded to the request for voluntary discovery on 4 July 2025, refusing to make discovery of Category 6(b), and stating: ‘[Keegan Quarries] refuses to make discovery of documents responsive to Sub- Category (b), which is not supported by the reasons given. These Proceedings concern a dispute as to whether the concrete supplied for the Works was defective or not. [KC Capital] has not pleaded that any other concrete was defective. The supply of concrete otherwise than for use in the Works is not relevant to whether or not the concrete supplied for use in the Works was defective or not. Having regard to the reasons advanced in support of Sub-Category 6(b) [Keegan Quarries] refuses this part of the request.’ Security for costs application

12. It is relevant background to this application to note that Keegan Quarries brought a security for costs application against KC Capital on 20 November 2023. This application was granted by Barrett J. on 26 April 2024 (KC Capital v Keegan Quarries [2024] IEHC 257). In his affidavit opposing the security for costs, dated 6 December 2023, Mr. David Kennan (“Mr. Kennan”), managing director of KC Capital, gave evidence that he was aware of other instances of Keegan Quarries allegedly supplying defective concrete to customers. This was disputed in the replying affidavit, dated 21 December 2023, of Mr. John Keegan (“Mr. Keegan”), director of Keegan Quarries.

13. In his affidavit, Mr. Kennan raised the issue of third-party complaints against Keegan Quarries. At para. 16(3), he states: ‘Mr Keegan also relies on what he asserts to be his group of companies’ reputation and experience in the supply of quality concrete products. However:

[...]

(3) I am aware of a number of sites which have and are experiencing serious quality, durability and compressive strength issues with the concrete supplied by [Keegan Quarries] within the last 18 months.’ Mr. Kennan goes on to identify three specific sites which he alleges have been affected by difficulties with concrete supplied by Keegan Quarries.

14. Mr. Keegan’s replying affidavit, at para. 16(3), states that the above averment of Mr. Kennan is: ‘neither correct nor relevant. I will explain why momentarily. However, I note that Mr. Kennan does not disclose his means of knowledge underpinning this averment. I have investigated the matter and it [sic] while I have my suspicions as to where Mr. Kennan has obtained this inaccurate and incomplete information, I do not wish to address that here.’

15. Mr. Keegan then turns to each of the three sites mentioned in Mr. Kennan’s affidavit. In relation to the first site, he states that ‘an issue did arise’ with the contractor on the site that ordered concrete from Keegan Quarries, but that Mr. Keegan did not: ‘believe it would be appropriate for me to disclose in these proceedings what that issue was as it would involve third parties who, I suspect, would not be best pleased if such matters were aired openly in these proceedings. I can confirm to this Court that the issue that arose was found not to concern defective concrete supplied by Keegan Quarries. If KC Capital would like further information on the issue I will have no difficulty in so doing provided they first obtain the agreement of all parties concerned.’

16. In relation to the second site, he avers that, again, an issue arose, but that the third parties would not be pleased if matters concerning the issue were aired openly in these proceedings. He states that Keegan Quarries did not supply defective concrete, and that the ‘issue that arose was caused for another reason’.

17. As regards the third site, he avers that Keegan Quarries was also not at fault, albeit that the initial test result indicated concerns about the concrete. He states that: ‘Whilst there was an initial concern raised on foot of cube test results obtained by the contractor, it transpired that there were issues with those cube test results (which differed from the cube test results of Keegan Quarries), and when core samples were taken it was confirmed that the strength of the concrete was as specified and that was the end of the matter’.

The amendment of the Statement of Claim

18. The next part of the background that is relevant is the fact that the claim in this case was originally grounded in negligence. However, KC Capital brought an application on 16 September 2024, to amend its Statement of Claim to include a claim of deceit and/or fraudulent representation, which was based on an expert report a forensic engineer (Professor Peter Robery). This application was granted by Barrett J. on 29 January 2025 (KC Capital v Keegan Quarries [2025] IEHC 46). The main amendment to the Statement of Claim in this regard was to para. 19, in order to include allegations of deceit/fraudulent misrepresentation. That paragraph now contains the following specific pleas: ‘19(H) (a) Ground granulated blast-furnace slag (“GGBS”) was an essential ingredient of design mix T/B 1034 RevA, as approved by the Engineer for use in the Works. The inclusion of GGBS was further necessary for the Greenside Building to achieve relevant standards, including an LEED Gold Rating. Without the knowledge or consent of [KC Capital], [Keegan Quarries] substituted ordinary portland cement and/or non-reactive material for the required GGBS on the basis that it was less expensive and easier to procure than GGBS.

(b) The concrete supplied by [Keegan Quarries] had a significantly lower compressive strength than any of the design mixes approved by the Engineer or ordered on behalf of [KC Capital]. The failure to comply with the design mixes approved by the Engineer or ordered on behalf of [KC Capital] was, and could only have been, deliberate.

(c) The concrete supplied by [Keegan Quarries] contained less cement than any of the design mixes approved by the Engineer or ordered on behalf of [KC Capital] and less cement than was required for the concrete to have the specified compressive strength. The cement used in the concrete supplied by [Keegan Quarries] was not CEM I as specified, and as required to achieve the correct compressive strength, but rather CEM II/A-L and/or CEM I cement which had been adulterated with non-cementitious material and contained up to 20% non-reactive material in substitution for cement, which reduced its compressive strength. The adulteration of the concrete supplied in the manner aforesaid was, and could only have been, deliberate.

(d) When called upon to explain the fact that the concrete supplied by it was understrength, [Keegan Quarries] purported to reject the results of the independent tests and put forward its own records including cube tests to suggest that the concrete could not have been understrength. The records of [Keegan Quarries] that have been furnished to date (and [KC Capital] awaits discovery and/or inspection facilities), including its batching records and cube test results, do not provide a true record of the content and compressive strength of the concrete supplied.’

19. In his judgment on the amendment of the Statement of Claim, Barrett J. made the following observations: ‘[T]he proposed amendments are clear and precise. There is more than a bald allegation of fraud. [KC Capital] has sought to align the additional pleas with the expert report of 6th December 2023. If the proposed amendment is allowed, [Keegan Quarries] has enough before it to understand, in broad outline, the case that it will be required to meet at trial. So there is enough material to allow [Keegan Quarries] to deliver an amended defence. And, it should be noted, there are several stages between now and the trial which will allow the defendant to seek and/or the plaintiff to provide further detail in respect of the claims made (raising a notice for particulars, the replies to same, the discovery process, the delivery of interrogatories, and the exchange of expert reports).’ (emphasis added)

20. It is also relevant to note that the Statement of Claim is also amended at para. 9(c) to provide that: ‘The representations made by [Keegan Quarries] (and in particular Mr. Keegan) directly to [KC Capital] (and in particular Mr. Kennan) included inter alia representations concerning:-

(a) The experience and credentials of [Keegan Quarries], to include major construction projects in which it had been involved;

(b) The quality of the concrete supplied by [Keegan Quarries];

(c) The state of the art nature of the facility from which [Keegan Quarries] was operating; and

(d) The suitability of the offering of [Keegan Quarries], and in particular its concrete, for the specific requirements of the Works’ (emphasis added) At para. 19 of the Amended Statement of Claim, there is a further plea whereby KC Capital seeks damages for fraudulent misrepresentation.

The amendment of the Defence

21. Following those amendments, an Amended Defence was filed on 9 April 2025 by Keegan Quarries. The Amended Defence traverses most of the issues pleaded in the Statement of Claim and puts KC Capital on full proof of many of the allegations made. It is also pleaded, in the alternative and without prejudice, that KC Capital was at fault in that it ordered the wrong concrete for its requirements and that KC Capital’s Original Contractor was at fault such as to cause the compressive strength issues in the concrete.

22. In particular, para. 20.7 of the Amended Defence states: ‘[...] The Defendant shall contend any diminution in the compressive strength of the concrete supplied by the Defendant and / or the structural integrity of the Greenside Building was caused by the acts or omissions of others for whom the Defendant bears no liability in law, and which said acts or omissions, whether individually and / or collectively, constitute a novus actus interveniens, including: a. Inadequate and / or inappropriate design of the Greenside Building, in particular the basement and ground floor slab. b. Defective workmanship on the part of the Original Contractor, its servants and agents, in the construction of the Greenside Building and / or inadequate supervision by the Design Team in respect of, but not limited to, the placement of the reinforcing steel; the shuttering, pouring and compaction of the concrete; the waterproofing of the basement; the positioning of basement perimeter walls; and the failure to properly inspect and / or certify the Works (including the pouring of concrete).’ c. The addition of water to the concrete delivered by the Defendant by, or on the instruction of, the Original Contractor and / or Engineer. which caused, inter alia, a segregation of the elements within the concrete thereby diminishing the compressive strength of the concrete, and an increase in the water to cement ratio.

d. The ordering by the Original Contractor of concrete that was not in accordance with specifications set by the Engineer and / or fit for its intended purpose. [...]’ THE LAW RELEVANT TO THIS DISCOVERY APPLICATION

23. The law relating to discovery is well established and it was summarised succinctly in O’Brien v Red Flag Consulting Limited [2021] IECA 172 by Donnelly J. at para. 27 as follows: ‘A document is relevant if it may reasonably form the basis of a line of enquiry which may lead to the discovery of information that will advance the case of the seeker and/or weaken that of the party against whom it is sought. It is sufficient that a document may contain such information. It is not necessary to prove that it will. Relevance is determined on the basis of the pleadings and not the evidence’.(emphasis added) Thus, the key issue in this case, in determining whether Category 6(b) is relevant, is what is pleaded. The relevance in discovery applications of what is pleaded in a Defence

24. It is important to note that the relevance of documents, for the purposes of discovery, is not determined merely by reference to a plaintiff’s pleaded case, but it is also determined by the way in which the Defence is pleaded, as was acknowledged by Clarke J. (as he then was) in Tobin v Minister for Defence [2020] 1 I.R. 211: ‘Relevance is, as has been pointed out, determined by reference to the pleadings. Importantly, therefore, the scope of the issues which arise for the trial and which, thus, inform the extent of the documentation which may be considered relevant, is determined by the way in which the parties choose to plead their case. A plaintiff can hardly be heard to complain that they are required to make overbroad discovery if the reason for the scope of the discovery sought is because of a “kitchen sink” approach to pleading the case. Likewise, defendants have to accept that, if they deny all elements of the plaintiff's case or place the plaintiff on proof about even relatively uncontroversial elements of the plaintiff's claim, then, inevitably, the scope of the issues which will arise for trial will be expanded and the potential for documents being relevant to issues which remain alive will be greatly increased.’ (emphasis added)

25. The case of VLM Limited v Xerox (Ireland) Limited [2005] IEHC 46 was particularly relied upon in this application. It concerned an allegation that printing machines supplied by the defendant were defective and did not meet the plaintiff’s reasonable expectations. Clarke

J. noted that the Defence filed in that case amounted to a ‘simple traverse of the contentions set out in the statement of claim’ (at pg. 2). He also observed that the defence contained a plea that the loss or damage was caused solely by, or was contributed to by, the plaintiff, or its servants or agents, as a result of the improper use of the machines. Clarke J. stated that the net dispute between the parties related to the discovery of documents ‘which might show that there were defects in other machines of the same type’ (at pg. 4). He held as follows at pg. 4:

‘Were it not for the provisions of the defence to which I have referred I would have little difficulty in concluding that the relevant documentation is not necessary for the fair disposition of this case. At a simple level the case turns on whether it can be shown that the machines concerned failed to live up to the reasonable standards implied by the term of merchantable quality or such specific performance criteria as may have been incorporated into the contract or otherwise represented to be so by the defendants. In such a context the reason why the machines failed to live up to the appropriate expectations is not really relevant.

Thus the fact that there were other machines which failed to live up to similar expectations would not, it seems to me, be relevant either to establish the plaintiffs case or to damage the defendants case. However that part of the defence which contends that the plaintiff was guilty of failing to operate the machine in a proper manner does, it seems to me, complicate matters. Even if it can be established that the machine did not perform in accordance with a reasonable or a represented standard a further question will necessarily arise as to whether any such failure of performance was either caused or contributed to by failings on the part of the plaintiff.

The establishment by the plaintiff of a failure to perform will not, therefore, necessarily bring home his case. In those circumstances it seems to me that the existence of similar complaints in respect of the same machine “might” damage the case of the defendant by making it less likely that any failure to perform on the part of the machines was due to a lack of proper care on the plaintiffs [sic] part. In principle, therefore, I am satisfied that some degree of documentation in relation to other machines and possible defects therein is necessary for the proper and fair disposition of these proceedings.’ (emphasis added) The relevance in a discovery application of a plea of fraud by party seeking discovery

26. The second group of cases that are particularly relevant to this application are those cases where fraud is pleaded. In National Educational Welfare Board v Ryan [2008] 2 I.R. 816 at para. 4.10, Clarke J. observed, in the context of a defendant seeking particulars, that: ‘It is in the very nature of fraud (or other unconscionable wrongdoing) that the party who is on the receiving end will not have the means of knowing the precise extent of what has been done to them until they have obtained discovery. To require them to narrow their case prior to defence (and, thus, discovery) would be to create a classic Catch-22. The case will be narrowed. Discovery will be directed only towards the case as narrowed. Undiscovered aspects of the fraud or consequences of the fraud will, as a natural result, never be revealed. This would, in my view, be apt to lead to an unjust solution.’ (emphasis added)

At paras. 4.5 - 4.7, he states: “[...] If a plaintiff who makes an allegation of fraud is required to give full and exhaustive particulars prior to defence (and, thus, prior to discovery or interrogatories) in a manner which necessarily narrows the case, then there is every chance that, in a genuine case of fraud, the perpetrator will escape having to make discovery in respect of aspects of the fraud because the plaintiff will not have been sufficiently aware of the details of those aspects of the fraud to plead them in an appropriate manner in advance. In those circumstances aspects of the fraud will be outside the case as originally pleaded and will not be caught by any order of discovery or interrogatories. The other side of the coin requires that care be taken not to allow a party, by the mere invocation of an allegation of fraud, to become entitled to engage in a widespread trawl of the alleged fraudster’s confidential documentation in the hope of being able to make his case. A balance between these two competing considerations needs to be struck. The balance must be struck on a case by case basis but having regard to the following principles. Firstly, no latitude should be given to a plaintiff who makes a bare allegation of fraud without going into some detail as to how it is alleged that the fraud took place and what the consequences of the alleged fraud are said to be. Where, however, a party, in its pleadings, specifies, in sufficient, albeit general, terms the nature of the fraud contended together with specifying the alleged consequences thereof, and establishes a prima facie case to that effect, the defendant should be required to put in his defence, submit to whatever discovery and interrogatories may be appropriate on the facts of the case, and then pursue more detailed particulars.’

27. Kearney v J&E Davy & Ors [2022] IEHC 95 concerned a defendant, accused of fraud, who was seeking further particulars from the plaintiff. This Court (at para. 16) referred to the Catch 22, which had been referenced by Clarke J. in the National Educational Welfare Board case, and concluded that: ‘From the case law, it is clear that the solution to this Catch 22 is to permit a plaintiff in fraud cases more latitude in particularising her claim, prior to discovery, than is the situation in non-fraud cases.’ It seems to this Court that the same logic applies in relation to an application for discovery. Accordingly, and to avoid relevant documents which might have been concealed (because of the clandestine nature of fraud), there is more latitude in determining what is relevant in discovery in fraud cases, than in non-fraud cases. However, it is important to emphasise that this latitude does not arise when there is a bare allegation of fraud. There must be some evidence of the existence of the alleged fraud.

ANALYSIS

28. The key issue in this case is whether details in relation to complaints made by third parties to Keegan Quarries about its concrete having insufficient compressive strength are relevant to the claims made by KC Capital that the concrete supplied to it by Keegan Quarries was of insufficient compressive strength. There is no dispute between the parties that this relevance is to be determined by reference to the pleadings.

29. KC Capital’s plea is that the concrete which was supplied to it by Keegan Quarries was of insufficient compressive strength. Accordingly, Keegan Quarries argues that any complaints, that were made by third parties in respect of the compressive strength of the concrete supplied to those third parties, are completely irrelevant to the issue between the parties.

30. Before considering the relevance, or not, of the complaints, there are a number of general points about the discovery to be made.

31. KC Capital bases its application for the discovery, of all complaints that relate to understrength concrete, on the fact that it is aware of three complaints which it alleges relate to understrength/defective concrete. As already noted, Keegan Quarries seeks to explain why these three complaints are not relevant. However, it is nonetheless relevant to note that Keegan Quarries does not deny the existence of the three complaints which KC Capital has identified as the basis for its discovery.

32. Secondly, it is relevant to note that the period, during which discovery is being sought for any complaints that were made, is not open-ended. It is restricted to complaints relating to the supply of concrete during the period 1 January 2022 to 31 December 2023.

33. Thirdly, it is not all complaints which were received by Keegan Quarries which are being sought, as it is restricted to complaints that the concrete was ‘of insufficient compressive strength or otherwise unfit for purpose’.

34. Fourthly, it is relevant to note that the claims that these complaints could be relevant are based, not on speculation, but, in part, on the expert opinion of Prof. Robery who is of the opinion (at para. 45 of his first report) that changes were made to the concrete ordered by KC Capital without notification or approval of its engineer and that making such changes is a, ‘most unusual action for a concrete producer in my experience’ and that he saw, ‘no evidence that Grant specifically ordered the unapproved mixes B1058 and B1037’ but that, ‘in fact the contrary is true as the order book occasionally records Grant ordered B1034 but received B1058 instead’.

35. In light of the foregoing points, to adapt a metaphor that is sometimes used in discovery applications, this is not a ‘general fishing expedition’. Instead, it is the equivalent of a very precise targeting of only a certain type of fish from a restricted part of the pool, which is being sought on the grounds that three fish of that type have allegedly been caught from that same pool (albeit that Keegan Quarries claims that these fish [i.e. complaints] did not relate to defective concrete supplied by it).

36. Next this Court will deal with the key issue in this case, namely whether the complaints in relation to concrete supplied to third parties have any relevance to the claims about concrete supplied to KC Capital. There are two key reasons why this Court believes that they are relevant.

(i) Keegan Quarries pleads there were acts/omissions of agents of KC Capital

37. As previously noted, relevance is determined by the pleadings. In this case, the pleadings and in particular the Amended Defence of Keegan Quarries does not simply contain a denial that concrete supplied by it was understrength, and a denial that this was caused by Keegan Quarries. Rather, the Amended Defence states that any diminution in the strength of the concrete was caused by the acts or omissions of third parties for whom Keegan Quarries bears no liability, including the alleged defective workmanship on the part of the Original Contractor.

38. The case of VLM, to which reference has already been made, is of particular relevance in this regard. It concerned the supply of allegedly defective machines to the plaintiff. The judgment deals with an application for discovery of third-party complaints which had been made to the defendant regarding other machines, not supplied to the plaintiff. Clarke J. initially observed (at pg. 3) that complaints about other machines, ‘would not, it seems to me, be relevant’ to the plaintiff’s case. However, he went on to observe that the fact that the defendant pleaded that the plaintiff did not operate the machine properly, ‘complicate[d] matters’. He stated that even if it were established that the machines did not perform in line with the expected standards, the plaintiff would still have to deal with the defendant’s plea that it was the plaintiff’s acts/omissions that were partly/wholly to blame. For this reason, Clarke J. held that if there were similar third-party complaints about the machines, this would damage the defendant’s plea in this regard. Accordingly, discovery was permitted since it had the potential to ‘weaken’ the case of the party against whom it was sought.

39. Similarly, in this case, even if KC Capital establishes that the concrete is not of the requisite strength, the issue arises as to whether this was due to a failure on the part of KC Capital or its agents, as pleaded by Keegan Quarries. Just as in VLM, the existence of similar complaints about the strength of the concrete may damage the pleaded case of Keegan Quarries that the damage which arose resulted from the acts or omissions of Grant Fit Out or any other agent. It seems clear that if there were other complaints about understrength concrete, this has the potential to weaken Keegan’s claim that it did not supply understrength concrete and, in particular, its claim that any damage resulting from the use of the concrete arose from the acts/omissions of Grant Fit Out or other agents.

40. This Court does not accept Keegan Quarries’ claim that VLM does not apply, on the basis that VLM is about how each operator used their machines, while this case is about what was ordered from Keegan Quarries. Firstly, the principle underlying VLM is that the pleadings stated that the plaintiff and/or third parties were to blame, rather than the defendant. This applies whether it is the operation of a machine or the use of a cement and therefore evidence is relevant if (to use Clarke J.’s words) it makes, ‘it less likely that any failure to perform on the part of the’ concrete was due to the plaintiff or its agents. Secondly, it is to be noted that the Amended Defence extends not simply to the ordering of the concrete but also its use, which is the same issue as arose in VLM, i.e. the use of the machines.

(ii) This is a case where Keegan Quarries is accused of fraud

41. It is important to note that this is not an instance where there has been a bare allegation of fraud. As already noted, the High Court (Barrett J.) has held that there is, ‘more than a bald allegation of fraud’ as there are, ‘clear and precise’ claims of fraud. As a result, more latitude is to be given in relation to granting a discovery application in this action, than is to be given for discovery applications in non-fraud claims, because of the clandestine nature of fraud.

42. Thus, when it comes to considering whether the third-party complaints might be relevant to the pleaded claims, more latitude is given to KC Capital’s claim that these complaints might uncover evidence that supports its claim that Keegan Quarries was engaged in deliberately altering the concrete. In this regard, it is important to remember the effect of making a claim of fraud. It is not something which should be undertaken lightly by any litigant as it is a very serious claim for KC Capital to make, and it is a double-edged sword. This is because, firstly, it is no longer sufficient for KC Capital to simply prove that the concrete it received was defective. To succeed in the case it is now making, KC Capital must go beyond that and prove that it was a deliberate act on the part of Keegan Quarries to provide defective concrete. However, on the other hand, the fact that KC Capital is claiming that Keegan Quarries is guilty of clandestine behaviour, means that the reasons provided by Keegan Quarries for refusing to discover documents need to be more carefully considered than in non-fraud cases (provided, of course, that some evidence of an alleged fraud has been provided).

43. KC Capital has provided some evidence of alleged fraud, that goes beyond bare allegations. The clandestine nature of fraud is such that, while Keegan Quarries’ claims (as to why the three complaints are irrelevant) may prove to be correct at trial, this Court has to be cautious about taking any such denials at face value. They amount to unsubstantiated claims regarding the irrelevance of the complaints. As such, they are insufficient to convince this Court that any complaints regarding Keegan Quarries’ supply of concrete to third parties might not strengthen KC Capital’s claim that Keegan Quarries fraudulently supplied understrength concrete to it. Other arguments on whether discovery should or should not be ordered

44. In its Statement of Claim, KC Capital claims that Keegan Quarries made negligent and/or fraudulent representations regarding its ‘experience and credentials’ and the ‘quality of the concrete’. It seems to this Court that if Keegan Quarries were in receipt of complaints from third parties regarding the quality of its concrete, which calls into question its credentials, this may assist KC Capital in establishing this plea. On this basis, therefore, it could be said that the contents of those third-party complaints are relevant to this plea.

45. Keegan Quarries claims that discovery should not be ordered as there are third parties who made the complaints or who might be affected by the complaints being made public. However, the confidentiality of the documents whether in favour of a defendant or another party is not sufficient, of itself, to lead to a refusal to order discovery. As noted by Clarke C.J. in Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2020] IESC 56, paras. 5.1: ‘The fact that documentation may contain confidential information does not, of itself, provide a reason for resisting its disclosure but it does provide a factor which the Court can take into account either in determining to decline disclosure or to put in place particular measures to protect the confidential information unless its disclosure should become absolutely essential.’ (emphasis added) Of course, if need be, specific steps can be taken to ensure confidentiality, over and above the implied undertaking on the part of a recipient of discovered documents not to disclose them other than for the purposes of the proceedings (Ambriox Ltd v Minister for the Environment (No.1) [1992] 1 I.R. 277, at pg. 286, per Finlay J. [as he then was]).

46. More generally, Keegan Quarries claims that the discovery of the complaints would be relevant if KC Capital had pleaded that Keegan Quarries was guilty of systemic failure, but since it has not so pleaded, it is not relevant. It is true that the discovery of third-party complaints would be relevant to KC Capital’s case if it were making a case that Keegan Quarries was guilty of a systemic failure to provide proper strength concrete to the market as a whole. However, the corollary does not hold true. Accordingly, the fact that systemic failure has not been pleaded by KC Capital does not mean that discovery of the complaints is not relevant.

47. KC Capital is not seeking to prove that Keegan Quarries is guilty of systemic failure. Rather, it is seeking to prove that Keegan Quarries fraudulently provided KC Capital with concrete of insufficient strength.

48. It is entitled to discovery of complaints regarding the supply of concrete to third parties for all the reasons stated, but primarily because of their relevance in light of the Defence pleaded by Keegan Quarries and in light of the plea of fraud by KC Capital. Accordingly, the fact that KC Capital has not pleaded that Keegan Quarries is guilty of systemic failure is irrelevant.

CONCLUSION

49. The discovery of the third-party complaints will be ordered as it is relevant to the issues between the parties:

• in light of the terms of the Defence pleaded by Keegan Quarries; and

• bearing in mind the latitude that must be granted to discovery requests in cases such as this (where there is a claim that the party providing the discovery is engaged in fraud, and that claim is supported by some evidence and so is more than a bare allegation).

50. This case will be provisionally put in for mention at 10.45 a.m. a week from its delivery to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.