The High Court has refused two parts of a motion by James Elliott Construction Limited for further discovery from Irish Asphalt Limited, while ordering Irish Asphalt to provide an affidavit explaining the history of missing handwritten test results from Bay Lane Quarry.
The motion arose in proceedings over products Irish Asphalt supplied to the construction company from the quarry in County Dublin. Three discovery issues remained for decision: documents connected with a 1998 planning scoping document; handwritten quality-control and aggregate-gradation test results; and emails involving three director defendants.
On the scoping document, the plaintiff argued that documents behind its preparation, including possible reports by specialist consultants, must exist. The court found the document did not establish that written reports had been produced before it was prepared, and was not satisfied that further relevant documents were in Irish Asphalt’s possession or procurement. It refused further discovery on that issue.
The court reached a different result on the test records. Irish Asphalt’s affidavit said handwritten worksheets from before computerised recording was introduced were no longer in its possession, power or procurement. The judge found the discovery affidavit did not explain when the documents were last held or what had happened to them, as required in describing documents no longer held. She directed Irish Asphalt to swear a new affidavit with a second schedule setting out those matters to the best of its knowledge, information and belief. If possible, it should be sworn by someone with personal knowledge, though the judge accepted that might not be possible.
The plaintiff also sought a lawyer-by-lawyer review of emails to and from the three director defendants. It pointed to the small number of non-privileged emails disclosed compared with the number over which privilege was claimed, and to meeting minutes referring to emails in 2003. Irish Asphalt said it had extracted and reviewed relevant electronic material against 435 agreed keywords and relevant date limits.
The judge found the search had been thorough, that the plaintiff had not challenged the methodology or shown that relevant devices or servers were omitted, and that the meeting minutes did not establish that undisclosed relevant emails existed. A further individual review would be disproportionate, she held, and she refused further discovery on the email issue.
The court did not decide whether the plaintiff’s delay in bringing the motion would otherwise have disentitled it to relief. The judgment concerned discovery only; it did not determine the underlying dispute over the supplied products.