The High Court has ordered James Elliot Construction Limited to provide further documents in its damages case over construction materials, and directed three individual defendants to swear new discovery affidavits identifying documents by number.
The ruling, delivered by Ms Justice Costello on 9 May 2017, concerned whether the parties had complied with discovery orders made on 28 July 2016. The court addressed competing applications about the company’s disclosure and the affidavits of three director defendants. It did not determine the underlying damages claim.
The court held that the company must disclose day books for 2003 to 2007, bank statements from 2003 to 2016, and documents relating to an arbitration with Quinn Insurance: the submission, pleadings and any award or settlement agreement. It excluded inter partes correspondence from that order, finding much of it could be irrelevant to assessing an award or settlement.
The company had offered to make its invoices available for inspection and copying, and the other defendants accepted. The court directed that access be provided on those terms. It also refused a request for tax returns for 2003 to 2009 as substitute disclosure for fixed asset ledgers the company said its auditors no longer held.
The court directed James Elliot, the company’s managing director, to swear an affidavit explaining why certain records were unavailable or had not been created, including Roadstone-related documents and annual job-cost and solicitor-client ledgers. It also ordered disclosure of any ad hoc job-cost ledgers or solicitor-client accounts that had been prepared. The judgment’s conclusion refers to affidavits addressing paragraphs 6, 11, 18 and 19; paragraph 19 concerns the fixed asset register and the refusal of substitute tax-return disclosure.
The three director defendants’ existing affidavits described document types and whether documents might have been in their possession, rather than identifying individual documents. The judge found that approach did not comply with the discovery order or court rules and that the affidavits’ qualifications did not meet their obligations. Each must swear a new affidavit, review documents with assistance from solicitors and identify them by the individual document numbers used in the fourth defendant’s discovery. The parties may agree to organise disclosure by the same classes, but the court did not order that approach.
The judge left the timetable for the new affidavits to be fixed after hearing from the parties. The decision records discovery directions and refusals on the applications; it makes no finding on whether the construction materials were defective or what losses, if any, were caused.