THE HIGH COURT
2001/16606P
BETWEEN
A.T.L. AUTO TROLLEY LIMITED AND J. & J. (CITY) LIMITED
PLAINTIFFS
AND

JOHN MOWLEM CONSTRUCTION LIMITED
DEFENDANT
Judgment of Ms. Justice Mella Carroll delivered the 10th day of July 2003

This is an application for an Order for Discovery of documents in the Defendant's power possessment or procurement as set out in the Plaintiffs' Solicitor's letter of 12th January, 2002.

The parties had agreed to make voluntary general discovery in this matter by consent in settlement of related proceedings between John Mowlem Construction Limited Plaintiff and Auto Trolley Limited Defendant 2001/14214P. An Order was made by Lavan J. on 5th November, 2001 to that effect, John Cronin to swear the affidavit on behalf of Auto Trolley Limited and William O'Regan on behalf of John Mowlem Construction Limited. William O'Regan swore an affidavit of discovery in this matter on behalf of the Defendant on the 17th December, 2001 and John Cronin swore an Affidavit of Discovery on behalf of the Plaintiffs on 12th January, 2002.

The Plaintiffs sought a further Affidavit of Discovery of documents as set out in the Plaintiffs' solicitor's letter of 12th January, 2002. The matter came before the Master who dismissed the Plaintiffs' application on the 3rd of May, 2002.

An appeal to the High Court came on for hearing the 15th July, 2002 before Johnson J. when it appeared that the Plaintiffs had not inspected the documents listed in the Defendant's Affidavit of Discovery. The matter was adjourned to allow inspection to take

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place on terms that the Plaintiffs would pay the costs of the discovery Motion. That inspection has since taken place.

The action arises from a contract between the first Plaintiff and the Defendant. The Defendant was the main contractor to the Department of the Marine in respect of Dingle Harbour, County Kerry. In or about the beginning of 2000, the first Plaintiff supplied machinery to the Defendant which was used in excavation works. The Plaintiffs plead an oral contract made between 10th March and 4th April, 2000 to carry out dredging works at the harbour and a variation of that contract about 5th May 2000. The first Plaintiff commenced work on 6th April, 2000 and continued until 15th/16th October, 2000. The express or implied terms of the agreements are set out in the Statement of Claim, including provisions for payment, amount of seabed to be removed, and certain support services to be supplied by the Defendant. The first Plaintiff claims to have dredged the agreed amount from the seabed for which the Defendant refused to pay. The Plaintiffs claim £162,480 plus an additional sum for extra works agreed. They also claim damages for breach of contract, negligence and breach of duty and alternatively a claim on quantum meruit. The Defendant pleads a general traverse of the Statement of Claim and denies any oral agreement. It pleads a different contract subject to the Defendant's standard terms and conditions and a written contract dated 18th May, 2000 with a variation dated 3rd July, 2000. The Defendant claims it made payment of £150,000 plus V.A.T. and pleads that the first Plaintiff was in such breach of contract as to repudiate its contractual obligations and that the first Plaintiff without the agreement of the Defendant removed all its plant and equipment on the 15th/16th October, 2000 while works remained incomplete. The Defendant went about completing the works which were not achieved until 1st February, 2001 and pleads it suffered loss, damage and expenses amounting to £393,920.92 plus V.A.T. In its counterclaim it claims this amount.

In his letter of the 12th of January, 2002 the Plaintiffs' Solicitor refers to 32 categories of documents which are not numbered. I will deal with them under letters of the

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alphabet as used in the Affidavit of Daryl Broderick, Solicitor on behalf of the Defendant sworn 1st May, 2002.

The categories are as follows

(a)	All documentation relating to the contract between the Defendant and the Department of the Marine.

(b)	Priced bill of quantities and final account.

(c)	Site agent diary and message book.

(d)	Engineer's site note pad and diary.

(e)	Site visitor book.

(f)	All M. Kalnin's hand written faxes and weekly reports.

(g)	All personnel/operatives' names and details.

(h)	All invoices from pontoon repair firms.

(i)	All correspondence between site office/ harbour master/client's site office/Ken Fitzgerald.

(j)	All concrete deliveries for pier foundations as built.

(k)	All pier foundations, drawings and levels.

(l)	All extra works for bill of quantities and site variations.

(m)	All concrete cube tests from site and concrete supplier.

(n)	Stock pile survey.

(o)	Contract method statement.

(p)	Contract programme and amendments.

(q)	Murt Coleman's diary.

(r)	Telephone log for Irishenco office in Kildare for May/June 2000.

(s) All personnel details and firms involved in finishing dredging works.

(t)	All letters and bills from firms involved in removing silt from site prior to A.T.L. coming on site.

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(u)	Barge movements log.

(v)	Irishenco monthly applications for payment in relation to contract.

(w)	Details of divers involved on site.

(x)	All site requisition orders.

(y)	Repair bill for tug boat.

(z)	Site photographs.

(aa)	Final hydrographic surveys.

(bb)	All correspondence between site office and head office.

(cc)	Clients snagging list.

(dd)	All concrete repairs and associated correspondence.

(ee)	Clients correspondence in relation to datum.

(ff)	Level discrepancies.

(gg)	Stone deliveries to fill in centre area of pier.

(hh)	Top soil deliveries to break water.

(ii)	Handwritten notes by Murt Coleman and Mike Kalnins of meetings with John Cronin.

The Plaintiffs submit there is no discovery relating to any category covering the period the 15th of October, 2000 to the 1st of February, 2001 which is the period in which the Defendant claims to have incurred damages amounting £392,920. The Plaintiffs claim further discovery is necessary for this period.

The Defendant does not contest that discovery did not continue beyond 15th October, 2000.

The Plaintiffs agree that discovery of documentation between the Defendant and the Department of the Marine could be limited to dredging works and the amount of rock/silt to be removed. They agree that category (a) encompasses (b), (1), (v), (cc), (ee) and needs to be discovered to 1st February, 2001.

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The Plaintiffs also agrees that the following categories have already been discovered but not to the 1st February, 2001. These are (c), (d) (e), (f), (i). (k), (n), (o), (t), (u), (aa), (ee), (ff) and (ii).

Regarding (aa) (the final surveys) the Plaintiffs' claim discovery beyond February 2001 if the relevant documents do exist.

The Plaintiffs agree that (g) include (w).

(j), (m) and (dd) all concern concrete and (gg) concerns stone deliveries.

(p)	Concerns an issue in the proceedings.

(q)	The reason given (that Murt Coleman was not site on a day to day basis, therefore his diary could not have been contemporary in his record) is not sustainable.

(r)	The Plaintiffs agree this is peripheral but claims it is still necessary.

(s)	The Plaintiffs claim this concerns an issue in the proceedings.

(t)	There is no contest on (t).

(x)	Site requisition: the Plaintiffs claim the Defendant failed to provide personnel, tugboats or pontoons as agreed.

(y)	This is similar to the repair bill for pontoons which is relevant to the supply of tug boats.

(z)	The Plaintiffs only seeks relevant photographs if any.

(bb)	There was an agreement for general discovery but this is now limited to the period April 2000 to February, 2001.

(hh)	The Plaintiffs agree that this can be disregarded.

The Defendant submits

(a)	That the Defendant's obligations under contact with the Department of the Marine are of no relevance to any contractual issue between the Plaintiffs and the Defendant; this refers also to (b), (1), (v) and (cc) and (ee).

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Regarding (c), (d), (e) and (f), these were discovered to the date of the leaving site and no reason is given for extending the period.

(g)	No where in the statement of claim do the Plaintiffs state that the Defendant in breach of contract by not supplying operatives.

(h)	There is no issue on the pleadings relevant to pontoon repairs. Even if there were the costs of repairs is not relevant.

(i)	Site reports have already been discovered, the categories sought is excessive and no valid reason is given for discovery.

(j)	Concrete deliveries are irrelevant because the amount ordered was on the basis of what was required after the first Plaintiff left the site.

(m)	The amount of concrete does not define the volume of material required to be dredged. Concrete is poured into shutters which decides the amount of concrete.

(dd)	There is no reference to concrete repairs in the pleadings.

(gg)	Stone deliveries were to fill in the centre of the pier. The areas defined does not cover the area the first Plaintiff was obliged to dredge.

(n)	Already discovered.

(o)	Already discovered.

(p)	The Defendant denies it concerns any issue in the proceedings.

(q)	Murt Coleman was not on site everyday so his diary cannot be a contemporary record.

(r)	Not relevant to the proceedings.

(s)	Certain documents are already discovered setting out the build up to doing work and personnel involved. No basis set out how the documents could assist in establishing incompetence of the Defendant in completing the dredging works.

(t)	(Not pursued by the Plaintiffs.)

(u)	Already discovered.

(v)	Irrelevant to the Plaintiffs claim. They concern the relationship between the Defendant and The Department of Marine. Final quantities have already been discovered.

(w)	There is no allegation that the Defendant was to supply all necessary operatives which it breached.

(x)	Re all site requisitions sought, the discovery is too wide. No issue arises whether the Defendant allowed access to support craft equipment or personnel.

(y)	No issue exists on the pleadings that the Defendant failed to provide the Plaintiffs with access to all necessary support craft equipment and personnel; if it did, how a repair bill for a tugboat could be relevant is not explained.

(z)	Irrelevant to the proceedings.

(aa)	Already discovered.

(bb)	This type of open end of discovery is what the new rules in relation to discovery were designed to prohibit. The Defendant has already discovered the relevant documents.

(cc)	Clients snagging list. If this is a reference to a snagging list produced by the Department of The Marine it is irrelevant to the dispute between the Plaintiffs and the Defendant.

(dd)	Already discovered.

(ee)	Already discovered.

(ff)	(Not pursued by the Plaintiffs.)

(gg)	Already discovered.

In my opinion further discovery should be allowed as follows:-

1.	Re (a): The contract between the Defendant and the Department of the Marine was sub-contracted. If the contract in respect of dredging works and amount of rock/silt to be removed was different to the contract yet to be established in court between the first Plaintiff and the Defendant probably could affect issues in the proceedings and the amount of the

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Defendant's counterclaim. The Plaintiffs are entitled to discovery in this category limited to dredging works and amount of rock/silt to be removed. The period to be up to the 1st February, 2000. This category includes (b), (l), (v), (cc) and (ee).

2.	The Plaintiffs are claiming discovery covering the period of the counterclaim. They seek further discovery to the 1St February, 2001 in respect of categories (c), (d), (e), (f), (i), (k), (n), (o), (u), (aa), (ff), (ii). They are entitled to this in relation to dredging and rock/silt removal. If the final surveys (category (aa) ) exist beyond the 1st February, 2001 they are  entitled to these.

3.	The Plaintiffs are not entitled to further discovery in relation to (j), (m), (dd) (concrete), and (gg) (stone deliveries). These categories do not go to prove the volume of material required to be dredged.

4.	(g) and (w). While the Defendants claim the Plaintiffs do not state the Defendant was in breach of contract by not supplying operatives, it is pleaded that the Defendant would supply three dump barges, a pontoon, tug boat and all necessary operatives and all necessary protection and lighting of seafaring equipment. In the particulars of negligence the Plaintiffs plead failure to employ competent staff and in particular competent engineers. These categories are relevant to the issues to be decided and should be discovered.

5.	With regard to repairs to the pontoon (h) and to the tugboat (y), the Plaintiffs claim they were hindered in carrying out the dredging operation. Details of repairs would go to prove the Defendant's failure to carry out its obligations and should be discovered.

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6.	(p) Contract programme and amendments. On balance this appears to relate to the issues to be decided.

7.	(q) Entries related to issues in this case in Mr. Coleman's diary are relevant, even if he was not on site every day, and should be discovered.

8.	The telephone records (r) between the parties are available to the Plaintiffs from their own records. No discovery is ordered.

9.	(s) This is relevant to the counterclaim where the Plaintiffs contend the Defendant was incompetent. This category should be discovered.

10.	(x) Site requisitions are relevant in relation to the counterclaim and should be discovered.

11.	(z) The site photographs of dredged materials and underwater photographs showing work done or to be done (if they exist) should be discovered.

12.	(bb) As the Plaintiffs point out there was agreement for general discovery. They are limiting this category in time from April, 2000 to February, 2001. Insofar as this entire period has not been discovered, this category should be discovered.

13.	(t) and (hh) are not being pursued.