The High Court has refused three disputed discovery requests in a dispute between the liquidator of Brandon Plant Hire Limited and Cairn, while asking the parties to agree narrower terms for two others.
In a judgment delivered on 6 July 2021, Mr Justice Brian O’Moore considered six discovery categories that remained contested. The dispute arises from a settlement agreement made on 11 March 2020 concerning sums Cairn was to pay Brandon. Brandon’s liquidator, Mr Fitzpatrick, is pursuing claims that include an allegation that the settlement was a fraudulent disposition and claims for money said to be due for variations and accelerated work. Those claims have not been determined in this discovery judgment.
The judge refused category 14, which sought private notes and other records by named Cairn personnel concerning dealings and meetings about the Mariavilla development. He found the request too broad and said the liquidator had not established relevance or necessity. Two agreed categories already covered some potentially relevant material, including communications about payments and documents showing Cairn’s reliance on contractual variation provisions.
Category 16, seeking correspondence, specifications and reports from Irish Water to Cairn about Mariavilla, including a licence agreement, was also refused. The judge said the central issue was whether Cairn required Brandon to do work for which it was entitled to payment. The reason those works may have been commissioned did not resolve that issue. He found that neither relevance nor necessity had been established for this category.
The judge said discovery should be provided on categories 20 and 22, which concerned other developments and the parties’ alleged course of dealing over oral or informal variations. Cairn disputed that such a course existed. The judge considered the issue live and potentially important, but found the wording of the requests unsatisfactory. He invited the parties to agree a proportionate category reflecting the pleaded issue; if they could not, he would set its terms.
For category 23, the judge ruled that the liquidator was entitled to discovery of documents evidencing oral variation requests by Cairn concerning the Donnybrook Greenfield contracts. He said internal records of oral instructions could exist and would not necessarily be available to the liquidator. The final wording must have a time limit, exclude documents sought only indirectly, and address overlap with an agreed category. The judge said he would hear the parties on scope and wording.
He refused category 26, which sought Cairn’s internal planning records for oral variations and acceleration at Mariavilla. He found the request was not relevant to the pleaded dispute about whether Cairn requested variations and owed payment for them.
The matter was listed for 20 July 2021 to address remaining discovery issues, including the costs of the motion.