The High Court refused a surveying company’s application for additional discovery in a couple’s claim concerning an oil spill at their property, ruling that the company had not shown a good reason for seeking the documents after discovery was agreed in 2018.
The ex tempore judgment by Ms Justice Niamh Hyland concerned an application under Order 31, rule 12(11) of the Rules of the Superior Courts. The rule permits the court to vary a discovery order or agreement where further discovery is necessary for a fair disposal of the case or to save costs, among other grounds.
The couple allege that the company, which they engaged to survey the property and provide a pre-contract report, failed adequately to investigate and advise them about an oil spill in the back garden. They say contamination required extensive remediation and that they had to leave the property for several months while the work was carried out. Their statement of claim seeks damages of about €240,000.
The company sought documents about advice the couple received on the need for remediation, and records relating to the work, its cost and payment, including invoices. It said its expert identified the need for the documents in April 2020 and argued that without them it could be disadvantaged when questioning witnesses and might need to issue subpoenas.
Justice Hyland said the company’s application and supporting material did not explain why those categories had not been sought when discovery was agreed in November 2018. The reference to the expert’s view gave no detail about why the need became apparent only in April 2020. The judge said relevance and necessity alone did not establish a good reason to revisit the earlier discovery agreement.
She also considered the company’s claimed disadvantage. Reports exchanged and expert discussions could provide some visibility into the couple’s case, she said. The couple had already provided one report, while the company had chosen not to provide any of its reports. The couple also bore the burden of proving their claimed losses; without supporting documents, they would not recover those amounts. The judge concluded that the absence of the requested material might make a trial more difficult but would not cause an injustice to the company.
The court refused the application, finding it was an attempt to seek documents that should have been requested in 2018. Justice Hyland said the application was brought two years after the discovery agreement, but clarified that delay was not the test: a party first had to show good reason for additional discovery. Because that hurdle was not met, she did not further consider delay.