Supreme Court allows discovery appeal, ruling strict rule compliance is not a condition precedent to exercising judicial powers.

THE SUPREME COURT

298/03

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

MARIE TAYLOR

Plaintiff/Appellant

and

CLONMEL HEALTHCARE LIMITED

Defendant/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 11th day of February 2004

This is an appeal from an order of the High Court (Roderick Murphy J.) dismissing an appeal from an order of the Master of the High

Court refusing an application by the above-named plaintiff/appellant for an order for discovery of documents.

The action is for damages for personal injuries arising out of alleged exposure to noxious substances in the course of the plaintiff’s

employment with the defendant. The essence of the claim is contained in the following extract from paragraph 4 of the statement of

claim which reads as follows:

“4. The plaintiff was employed with the defendants from in or around the month of March 1989 until in or around the month of

February, 2000 in the defendants’ said factory premises and in the course of her employment she has been exposed to

quantities of noisome and noxious dust, fumes and vapours, including penicillin powder, in consequence whereof the plaintiff

sustained severe personal injuries and has suffered and continues to suffer loss and damage.

PARTICULARS OF INJURIES

The plaintiff developed symptoms of cough, breathlessness and wheeze. The plaintiff developed asthma. The combination of

normal spirometry tests and marked wheeze in the plaintiff suggest a large amount of inflammation in her small-calibre

airways, the bronchioles and her present wheezes suggest a lot of current airway obstruction in her small bronchioles. The

plaintiff has suffered and continues to suffer much pain, inconvenience, loss of amenities of life and loss of earning capacity,

and loss of enjoyment of life and has been and continues to be gravely affected in her social, working, domestic and

recreational life…..”

The remainder of the paragraph deals with particulars of special damage which are not relevant to this application.

A defence was delivered on the 21st of October, 2002, the relevant part of which for the purposes of this application is contained in

paragraph 1 which reads as follows:

“1. It is denied that during the course of her employment with the defendant the plaintiff was exposed to the alleged or any

quantities of noisome or noxious dust or any dust, fumes or vapours. It is denied that during the course of her employment

with the defendant the plaintiff was exposed to penicillin powder as alleged or at all. If the plaintiff was exposed to the alleged

or any dust, fumes, vapours or penicillin powder (all of which is denied) then it is denied that as a consequence thereof the

plaintiff sustained the alleged or any personal injuries or suffered, or continues to suffer the alleged or any loss or other

damage.”

On receipt of delivery of that defence the solicitors for the appellant wrote a letter to the solicitors for the respondent dated the 7th

of November, 2002 seeking voluntary discovery in accordance with O. 31, r. 12 of the Rules of the Superior Courts as amended since

the 3rd of August, 1999 by the Rules of the Superior Courts (No. 2) (Discovery) 1999. I think it useful to set out in the judgment the

terms of this letter and some of the subsequent correspondence relating to discovery. The letter of the 7th of November, 2002 reads

as follows:

“Re: Marie Taylor v. Clonmel Healthcare Limited

High Court

Dear Sirs

We acknowledge receipt of your defence and note that your clients deny that the defendant was exposed to the alleged or

any quantities of noisome and noxious dust or any dust, fumes or vapours. We note that it is further denied that during the

course of her employment with the defendant the plaintiff was exposed to penicillin powder. We further note that you advised

that if the plaintiff was exposed to any dust, fumes, vapours or penicillin powder then it is denied as a consequence thereof

the plaintiff sustained the injury complained of in the statement of claim. We further note that it is denied that the plaintiff

sustained any injury. We note that your clients deny that they were guilty of the negligence, breach of duty and breach of

statutory duty as set out in the statement of claim. Arising from your denial we now require that the defendants agree to

make Voluntary Discovery on Oath of all documents which are or have been in their possession relating to matters in question

in the said proceedings and in particular the following documentation.

1. System of work.

2. The precautions (if any) taken to prevent injury from materials used in the work/performing part of the workplace.

3. The nature of all materials used in or forming part of the work or place of work.

4. Employment documentation relevant to the plaintiff to include the plaintiff’s employment file, personnel file and medical file.

5. Any other documents in the possession, power or control of the defendants in relation to the issues as pleaded.

Please be advised that:

(a) The plaintiff makes this requirement pursuant to the Rules of the Superior Courts and

(b) the discovery which the defendants are hereby required to agree to make is discovery which shall be made in like manner

and form and shall have the like effect as if directed by order of the High Court and

(c) if the defendants agree to make the said discovery within the time required namely, 42 days from the date of this letter

and fail to make such discovery within the said time, the plaintiff may make application pursuant to the Rules of the Superior

Courts in respect of the defendants’ failure to make the said discovery within the said time.

Please also note that unless, within 10 days from the date of this letter, the defendants confirm their agreement to make the

discovery hereinbefore required, an application will be made on behalf of the plaintiff to the court for an order requiring that

the defendants do make the said discovery and for the costs of, and incidental to, the said application; and this letter, and the

defendants’ failure to advise us, as required, that they agree to make the said discovery required shall be relied upon to

ground the said application.

We await hearing from you.

Yours faithfully

Denis O’Sullivan & Co.

I should mention at this stage that in my view that letter clearly gave reasons for the discovery sought even though the word

“reasons” is not to be found in the letter. Given that the letter commences with a clear exposition of what are the issues in the case,

it is self-evident why the appellant wanted the categories of documents listed and it is equally self-evident that within those

categories she was only looking for documents material to the issues as set out. It can, of course, be argued that on its face at least

the fifth category sought is much too wide and contravenes the 1999 amendments. I will, however, return to that issue later in the

judgment. In making that comment, I am not overlooking the fact that the respondent is similarly criticising the other four categories

sought.

The solicitors for the respondent replied to that letter by a letter of the 12th of November, 2002 acknowledging receipt but requesting

the solicitors for the appellant “to set out your reasons for seeking the discovery sought”. In reply to that letter the solicitors for the

appellant wrote a letter of the 15th of November, 2002 which reads as follows:

“Re: Marie Taylor v. Clonmel Healthcare Limited

High Court

Dear Sirs

Thank you for your letter dated 12th of November, 2002. The defendant did not take any or any adequate precautions for the

safety of the plaintiff. The plaintiff requires documents in relation to the system of work in order to prove that the defendant

failed to take any or any adequate precaution for the safety of the plaintiff. The defendant has denied that the defendant

failed to take any adequate precaution for the safety of the plaintiff.

The plaintiff requires documentation to prove the precautions (if any) taken to prevent injury from materials used in the

work/performing part of the workplace. The plaintiff alleges in her statement of claim that the defendant exposed the plaintiff

to a risk of damage or injury to which the defendant knew or ought to have known. The plaintiff further alleges that the

defendant failed to provide any fans or suction plant or other suitable or adequate plant or appliances to enable the work to be

carried out safely. The plaintiff further alleges that the defendant failed to provide any or any adequate or proper protective

equipment which would have enabled the plaintiff to carry out the said work in safety. The defendant denies that the plaintiff

was exposed to any risk or injury and denies that the defendant failed to provide fans or suction plant and further denies that

the defendant failed to provide any or adequate or proper protective equipment. The documents are required to prove that

the defendants did not take any precautions to prevent injury from materials used in the work/performing part of the

workplace.

The defendant failed to take any or any proper measures to protect the plaintiff from the inhalation of dust, fumes and

vapours.

The plaintiff alleges that the defendant failed to provide the plaintiff with adequate suitable respiratory appliances which would

enable the plaintiff to carry out the said work in safety. The plaintiff was exposed to substantial quantities of dust, fumes and

vapours. The defendant denies that the plaintiff was exposed to the inhalation of dust, fumes and vapours and further denies

that the substances which the plaintiff was exposed to were dangerous in the workplace. As a result of the denial of the

defendant it is a matter for the plaintiff to prove that the materials used in or forming part of the workplace were dangerous

substances. The plaintiff requires documentation in the nature of all materials used in or forming part of the workplace.

The plaintiff alleges that she was allowed to remain in the said hazardous employment when the defendants knew or ought to

have known that it was unsafe and dangerous to allow her to do so. The defendant denies that the plaintiff was allowed to

remain in the said hazardous employment when they knew or ought to have known that it was unsafe and dangerous. The

plaintiff alleges that the defendants failed to exercise any or proper adequate medical supervision of the plaintiff in the

circumstances where she was engaged in hazardous employment. The plaintiff alleges that the defendants failed to take any

or effective or adequate steps by way of medical or other supervision or otherwise to identify the risk to which the plaintiff

was being exposed and take measures to eliminate that risk so as to prevent the injury or further injury to the plaintiff. The

plaintiff alleges that the defendant failed to warn the plaintiff of the risk attending such hazardous employment. The

defendants deny that the plaintiff was allowed to remain in the said hazardous employment and further deny that they failed

to take any proper or adequate medical supervision of the plaintiff in the circumstances and further deny that the

employment was hazardous. The defendants further deny that they failed to identify the risk to which the plaintiff was being

exposed and take measures to eliminate that risk. The defendant further denies that they failed to warn the plaintiff attending

such hazardous employment. By reason of the foregoing the plaintiff requires the defendant to make discovery of the

plaintiff’s employment file, personnel file and medical file.

Unless we receive confirmation from you by return that you will agree to make discovery as previously required we shall have

no alternative but to make an immediate application to the courts.

We would mention that the court has already made discovery orders in relation to the related cases of Martin Duggan and

Mary Maunsell.

We await hearing from you.

Yours faithfully

Denis O’Sullivan & Co.”

A copy of the actual order made in the Martin Duggan case referred to in that letter was subsequently forwarded to the solicitors for

the respondent following on the order of the Master which was made on the 16th of May, 2003 refusing the discovery. The Martin

Duggan order was dated the 19th of March, 1999 and, therefore, predated the amended rule. Nevertheless the order was not a

general order for discovery but was for precisely the same categories of documents that were sought in this case. It seems clear that

it never occurred to the legal advisers to the respondents that there could be anything objectionable about the discovery sought in

that form prior to the amending rule. Their current objection is exclusively based on that amending rule and in my view is essentially a

technical objection.

In reply to the detailed letter of the 15th of November, 2002 cited above, a holding replying letter was written on the 20th of

November, 2002. There does not appear to have been any later reply but by letter of the 13th of January, 2003 the solicitors for the

appellant wrote to the solicitors for the respondent to the effect that they had advice from counsel that the letter of the 7th of

November might not comply with the Rules of the Superior Courts and that they were now putting the respondent formally on notice

that they were seeking voluntary discovery of the said categories of documents which were again scheduled to this letter. The

format of the letter followed the rules rather more strictly. The following extract makes this clear.

“Please note:-

A. We require you within ten days of the date hereof to signify your agreement to making voluntary discovery as herein

requested.

B. The said voluntary discovery is sought to be made within forty-two days of the date hereof.

C. Voluntary discovery is being sought pursuant to O. 31, r. 12 sub-rule 4 of the Rules of the Superior Courts.

D. We would require discovery to be made in like manner and form and to have such effect as if directed by the court.

E. Failure to make discovery may result in an application to the court for an order for discovery pursuant to O. 31, r. 21 of

the Rules of the Superior Courts.

F. Furthermore should you agree to make discovery as requested and fail to do so, this may also result in an application to

the court, pursuant to the provisions of the said order and rules.

G. The reason that discovery is required as aforesaid is on account of the denials contained in your defence that the plaintiff

was exposed to the alleged or any quantities of noisome and noxious dust or any dust, fumes and vapours. And it was further

denied that during the course of her employment with the defendant the plaintiff was exposed to penicillin powder, and if the

plaintiff was exposed to penicillin powder and that if the plaintiff was exposed to any dust, fumes, vapours or penicillin powder

then it is denied as a consequence thereof the plaintiff sustained the injury claimed of in the statement of claim. It is noted

also that the defendant denies that they were guilty of the negligence, breach of duty and breach of statutory duty as set out

in the statement of claim, and in the circumstances discovery is necessary for the proper presentation and preparation of the

plaintiff’s case.

The said documents are both relevant and necessary and we hereby call upon you to furnish us with all the documents

relating to the foregoing.”

As mentioned, the schedule to the letter contained the list of the categories of documents.

This letter was followed up by a motion on notice to the Master of the High Court seeking the same discovery and dated the 10th of

February, 2003. That motion was grounded on an affidavit by Mr. David O’Mahony, solicitor in the firm of Denis O’Sullivan & Co.,

solicitors for the appellant. That affidavit referred to “the pleadings and proceedings already had herein when produced” and went on

specifically to exhibit the letters of the 7th of November, 2002 and 13th of January, 2003 cited above. In paragraph 5 of the affidavit

the deponent states as follows:-

“I say and believe that the defendant has or had or should have the documents required to be discovered within its power,

possession or procurement and that the reason why discovery of the said documents is required is that the same are relevant

and necessary for the proper presentation and preparation of the plaintiff’s case and that the defendants are denying the

material averments of fact as pleaded in the statement of claim herein and by reason of the foregoing it has become

necessary to apply to this Honourable Court for the order herein sought.”

In paragraph 6 of the affidavit the deponent refers to the traverses in the defence and in paragraph 7 states that the documents

sought to be discovered “should assist the plaintiff in proving her case and rebut the denials contained in the defendants’ defence.”

A replying affidavit of Mr. Kevin O’Keeffe a partner in the firm of Coakley Moloney, solicitors who were the solicitors for the respondent

was sworn and filed in the motion. In paragraph 4 of that affidavit Mr. O’Keeffe makes the following observation:

“The affidavit of the plaintiff seeking an order for discovery does not verify that discovery of documents sought is necessary

for disposing fairly of the action for saving costs.”

(I am assuming that the word “or” was accidentally omitted after the word “action” in that paragraph). Mr. O’Keeffe then goes on to

make a second point in paragraph 5. He says that he believes that the plaintiff’s request for discovery “does not identify the precise

categories of documents sought to be discovered as required by rules of court.” A third complaint is contained in paragraph 6 of Mr.

O’Keeffe’s affidavit in that he says in that paragraph that the plaintiff had failed “to furnish reasons why each category of documents

is required to be discovered”. He goes on to say that in so far as the plaintiff purported to furnish reasons such reasons had merely

been confined to a reference to the denials contained in the defence. In paragraph 8 of Mr. O’Keeffe’s affidavit he claims that item 4,

i.e. “employment documentation relevant to the plaintiff to include the plaintiff’s employment file, personnel file and medical file” is

arguably the only precise category of documents identified by the plaintiff and that there was nothing in the reasons given to indicate

why that item was necessary. He goes on to allege that item 5 which is the residual general requirement is contrary to the amended

rule.

The Master refused the discovery sought and the appeal from that order came before Roderick Murphy J. in the High Court on the 7th

of July, 2003. The learned High Court judge gave an ex tempore judgment dismissing the appeal from the Master. Essentially, the

dismissal was based both on a finding that there was insufficient precision in the categories of documents sought and on a finding

that there is nothing in the reasons given relating to fairly disposing of the action or for saving of costs. The judge placed particular

reliance on the judgment of Morris P. in Swords v. Western Proteins Limited [2001] 1 I.R. 324. Quite apart from some problems to

which that case gives rise and to which I will be referring later, the learned High Court judge in this case does not seem to have

correctly interpreted the views of Morris P. For instance with reference to the Swords case the learned High Court judge said the

following:

“The parties seeking discovery must show the reasons why they are required. It must provide added value to a case and

narrow the issues between the parties; and so enable the parties to settle the case.”

With respect to the learned High Court judge, I find that statement difficult to reconcile with one’s normal understanding of what

discovery is all about. In my view, it is a novel idea that discovery is to enable the settlement of a case. On the contrary, discovery

is with a view to fighting the case. It is to provide a party with the necessary additional ammunition to enable him or her win his or

her case. Time and again this court and most recently in the judgment of Fennelly J. in Ryanair plc v. Aer Rianta cpt (unreported

judgment 2nd of December, 2003) has referred to and approved the famous dicta of Brett L.J. in Compagnie Financiere du Pacifique v.

Peruvian Guano Company (1882) 11 Q.B.D. 55 in which it was explained that a document relates to the matters in question in the

action “which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable

the party requiring the affidavit either to advance his own case or to damage the case of his adversary”.

That concept of discovery would seem to me to be rather different than the concept espoused by the learned High Court judge in this

case. Of course, the learned High Court judge is quite correct in his view that the opposing party must be put into a position that he

understands what type of documents are required. Nevertheless I would suggest that the learned High Court judge in applying that

correct principle has adopted an unduly restrictive approach. He says that for instance “system of work” is too vague a phrase. But

in interpreting the nature of the particular category of documents being sought by reference to its description the Master or the

court, as it may be, must look at the context and in that connection surrounding correspondence which is exhibited may be relevant.

No matter how a particular category of documents is described, the opposing party is only bound to discover such as are material to

the issues. It is crystal clear in this case what kind of a case the appellant is making and what is in dispute. It is difficult to see

therefore why there is a problem about providing documents relating to the system of work in so far as they are relevant to this

dispute in the Peruvian Guano sense.

The same is true about categories 2, 3 and 4. If, for instance, there is a known hazard to workers in relation to working with one of

the substances specified or an analogous substance there will obviously be recommended precautions that should be taken by an

employer. The taking of those precautions or the desire to take whatever precautions may be required may easily generate

documentation and it is that documentation which is sought. The learned High Court judge is particularly critical of category 3

because he seems to think it might cover materials of all kinds that might come into the workplace. But there is no danger of that

because the obligation to discover would be confined to documents relating to the matters in issue in the proceedings. I can see no

breach of the requirement that the appellant must specify the precise categories of documents in respect of which discovery is

sought in relation to numbers 1, 2, 3 and 4 bearing in mind that there is the overall limitation that only documents relating to the

proceedings need be discovered. If there was a serious problem of precision that made it difficult for the respondent to know what it

had to discover it is very surprising that that objection was not taken in the two earlier cases even though they predated the new

amended rule. If there was validity in the objection at that stage it could still have been taken under the old rule and the Master

would certainly have entertained it and might have refused discovery.

As I have already indicated, the fifth category of documents sought is undoubtedly more problematical. In a case such as this,

however, where science is involved in an allegation that the atmosphere of the workplace caused the injury there is a reasonable

possibility that on foot of a literal interpretation of the categories of documents required or because of imprecise terminology in

relation to alleged substances a defendant might avoid making discovery even though in reality a document would clearly be relevant

to the real complaint of the plaintiff. I sympathise with the concern of the solicitors for the respondent in this case that category 5

could be interpreted as general discovery and thereby negative the clear intentions behind the amending rule. When read in context,

however, I am satisfied that category 5 was intended to be strictly “eiusdem generis” in relation to the other four. What would be

required to be produced under category 5 would be confined to documents which would be material to the action and which would be

analogous to documents within the first four categories.

I turn now to the notice of appeal. There are nine grounds set out but for all practical purposes there were only two issues argued

before this court. The first was that the categories of documents sought were not sufficiently precise and the second was the purely

technical point that the Master had no jurisdiction to make any order other than the order that he did make because of non-

compliance with the amended rule.

I have already expressed my views on the first of these two issues. I am satisfied that putting them into the context which I have

put them and giving them the interpretation which I have applied to them the categories of documents sought are stated with

sufficient precision to comply with the rule.

On the second point, I do not think that there was non-compliance with the rule but even if I were wrong about that I believe that it

would not be fatal in this case. Under the amended rule there is a preliminary requirement that the applicant shall have previously

applied by letter in writing requesting that discovery be made voluntarily specifying the precise categories of documents in respect of

which discovery is sought and furnishing the reasons why each category of documents is required to be discovered and then a

reasonable time for discovery has to be allowed and thirdly, there has to be a failure, refusal or neglect to make the discovery or an

ignoring of the request. I have set out the two letters in full which were written. The first letter was probably sufficient in the

context in which it was written but certainly when combined with the second letter there was compliance with this part of the rule.

There were reasons given by implication in the first letter and expressly in the second letter and, in my view, they were sufficient.

Under the amending rule the affidavit grounding the ultimate motion for discovery must verify that the discovery of documents sought

was necessary for disposing fairly of the cause or matter or for saving costs and must furnish the reasons why each category of

documents is required to be discovered. A case cannot be said to be fairly disposed of if a party is prevented from being in the

position of presenting and preparing the case properly. In paragraph 5 of his affidavit already referred to, Mr. David O’Mahony said

that he believed that the defendant has or had or should have the documents required to be discovered within its power, possession

or procurement and that the reason why discovery of these documents was required was that the same were “relevant and

necessary for the proper presentation and preparation of the plaintiff’s case and the defendants are denying the material averments

of fact as pleaded in the statement of claim herein.” That is sufficient verification in my view as to the necessity for the documents

in order fairly to dispose of the proceedings. In his judgment already referred to in Ryanair plc v. Aer Rianta cpt Fennelly J. refers to

the fact that Finlay C.J. in Allied Irish Bank plc v. Ernst & Whinney [1993] 1 I.R. 375 interpreting the original rule had opined that the

burden of proof of necessity under that version of the rule was on the party against whom discovery was sought. Fennelly J. went on

to observe that it was impossible to resist the conclusion that the amendment to the rule had shifted that burden. However, in most

cases this alteration in the rule may not make much practical difference. If a party is entitled to a document on grounds of relevance

to assist him in his case on the ordinary discovery principles it will usually be “necessary”. Save in exceptional cases a formal

verification of this in the affidavit will be sufficient on a prima facie basis. The opposing party of course may decide to raise the issue

of necessity and put forward reasons why it is not necessary and that issue can then be disposed of in due course. As far as I am

aware, the strengthening of the necessity requirement in the amending rule arose out of the judgment of Lynch J. in this court in the

case of Brooks Thomas Limited v. Impac Limited [1999] 1 ILRM 171. In that case Lynch J. delivered the judgment of the Supreme

Court and it was held in the judgment that in a negligence action which was already heavily delayed further and better discovery

which included “all handbooks, guidebooks and standard reference works indicating the Impac approach to management

consultancy/engineering should be discovered” was unnecessary. Over the years the necessity aspect of the rule had been rather

overlooked and it became relevant in that case. The strengthening of the amending rule in my view is so that the legal advisers of the

moving party will apply their minds not only to whether the documents are relevant but whether they are necessary. In most

instances if they are relevant they will be necessary but there will be cases where that will not be so. It would defeat the whole

purpose of discovery if detailed reasons had to be given in the grounding affidavit as to necessity. The purpose of the amendment

was so that the Master or the court as the case may be and the respective parties would focus on what documents were really

needed for the purpose of advancing the case of the moving party or defending as the case might be. For many years before that, an

unlimited general order for discovery was common practice and on the common law side the order was made only on foot of the

statement of claim without any requirement for an affidavit. I believe therefore that there was sufficient verification of necessity in

this case.

I also believe that there was compliance with the rule that the grounding affidavit must contain the reasons why each category of

documents is required to be discovered. It is true that they are not set out seriatim but the letters containing the reasons are

exhibited. In my opinion, that is sufficient compliance. Even if I was wrong about that it is perfectly clear that the object of the

amending rule has been achieved and I do not accept that the Master is confined in his “jurisdiction” to making orders based on strict

compliance with the rule. It would appear that that view of the Master’s powers is largely derived from the decision of Morris P. in

Swords v. Western Proteins Limited cited above. I do not find it necessary to analyse what exactly the former President said about

this but if he did go so far as to give such a strict interpretation of the so called “jurisdiction” of the Master, I would respectfully

disagree. Although with reference to the Master the word “jurisdiction” is included in the index to the Rules of the Superior Courts it is

not included in the body of the rules and is, in my opinion, a misnomer. The Master has the powers and duties conferred on him by the

Rules of the Superior Courts. The powers of the Rules-making Committee in this regard in turn derive from the Courts (Supplemental

Provisions) Act, 1961 and by cross-reference the Courts and Court Officers Act, 1926. But as I would see it, it is not a conferring of

jurisdiction on the Master. It is rather limited powers given to the Master to exercise the jurisdiction conferred on the High Court. The

rules of court simply regulate the jurisdiction already conferred. The rules do not themselves confer a jurisdiction. Under the definition

of “court” in the Rules of the Superior Courts the Master is included when exercising his powers under the rules. I think therefore that

the Master has full power to waive any technical breach in the rules if the object of the rule has in reality been achieved. Whether it

be the court or the Master, however, the judge or the Master as the case may be will be very slow to exempt from the provisions of a

rule where as in this case the rule is an amended rule specially designed to provide procedures to cure a perceived mischief. The

Master is absolutely right therefore to require compliance with the amended rule but it is going too far to suggest that strict

compliance is a condition precedent to the exercise of the Master’s powers. In accordance with the judgment of McCracken J. in the

Ryanair case the Master or the court for instance may alter the wording of a particular category of documents sought so as perhaps

to order discovery of some but not all.

In the same Ryanair case Fennelly J. in his judgment refers to what had obviously been put forward as a key passage in the judgment

of Morris P. in the Swords case. This was the passage referring to the historical background to the new rule and the necessity now to

pinpoint the documents or category of documents required. Fennelly J. goes on to observe that the passage was subsequently

approved in express terms by Keane C. J. with the concurrence of the other members of the court of which I was one in Burke v. DPP

[2001] I.R. 760 But he goes on to opine that the judgment of Morris P. goes no further than to identify the mischief which the

amendment was intended to remedy namely, the automatic and unnecessary resort to blanket discovery without sufficiently

specifying the documents sought and the reasons for which their discovery was sought. As far as I can recall that was also the

context of the approval in the Burke case. Having referred to the passage in the former President’s judgment, Keane C.J. says the

following:

“I have no doubt that the learned President was entirely correct in his view as to the object of the new rule and indeed its

importance.”

As far as I am aware that was the aspect of the case that was approved and the other aspects were not considered.

For all the reasons which I have given, I would allow the appeal and would set aside the orders of the High Court and of the Master of

the High Court and order the discovery sought.