The High Court has ordered John Cleary, Colin Cleary and John Cleary Junior, trading as John Cleary Developments, to provide a final affidavit of discovery covering documents about works on a private hospital in Mahon, Cork. The order addresses two categories of documents; the court made no order on the balance of Joseph Sheehan’s application.
Sheehan, who is sued as guarantor of an agreement for lease to CMC Medical Operations Limited, applied for dismissal of the plaintiffs’ claim for want of prosecution or, alternatively, further discovery. The plaintiffs claim damages for breach of contract. Sheehan denies liability, arguing that CMC’s obligation to take the lease never arose because practical completion was not achieved. He also counterclaims for relief including specific performance of the agreement.
The court described the central issue as whether the hospital works had reached practical completion by 19 November 2010, as the agreement required. Sheehan contends that required works and documentation were incomplete at that point and that relevant works continued afterwards. The court did not decide whether practical completion had occurred or whether the guarantee was breached.
Justice Cooke said the parties’ agreed discovery categories had the effect of a court order. He found Sheehan was entitled to require a definitive affidavit covering Categories 2 and 5, and redefined their scope. Category 2 covers documents generated by or referring to landlord’s works and fitting-out works, including commissioning and testing, undertaken to achieve or certify practical completion on or before 19 November 2010, subject to documents already listed in earlier affidavits. Category 5 covers documents about building, remedial, testing, commissioning or fitting-out works done from 19 November 2010 to 14 June 2012.
The judge rejected a request for further versions of appendices to the April 2011 heads of agreement with the proposed new tenant. He considered the underlying documents about later works for that tenant of questionable relevance and disproportionate to the material already identified.
The remaining requests concerned documents about the new letting and financial arrangements, and material bearing on the plaintiffs’ damages claim. The court made no order on that part of the application at this stage. Instead, it directed under Order 63A, rule 5 that issues about quantifying damages await determination of the central breach-of-contract issue. The discovery application was therefore allowed in part, limited to the two redefined categories.