The High Court declined to strike out a claim over the extent of lands sold by a receiver, finding that the plaintiffs had failed to comply with discovery and particulars orders but that striking out was premature.
In a judgment delivered on 25 May 2023, Mr Justice Rory Mulcahy said the plaintiffs had not shown that they made a reasonable search for documents required under orders made by Ms Justice Stack on 6 April 2022. The judge also found that relevant documents appeared to exist or to have existed but were neither disclosed nor accounted for.
The case concerns a boundary dispute at Oaklands, Ballinakill, County Waterford. The defendants bought lands from a receiver appointed over property belonging to the first and second plaintiffs. The dispute includes whether an entranceway to the plaintiffs’ dwelling house was covered by a 2006 mortgage deed, and therefore whether the receiver could sell it. The judgment records that the deed had no map attached. The third and fourth plaintiffs are trustees of the Hoban Family Trust, to which the retained lands were said to have been transferred in 2018.
The defendants sought to have the claim struck out, arguing that discovery and replies to particulars were inadequate and that the plaintiffs’ failure to address complaints showed deliberate non-compliance. The plaintiffs initially maintained that they had complied, but their counsel accepted during the hearing that discovery was deficient in some respects. The plaintiffs also argued that no map existed and that the shortcomings did not prevent a fair hearing.
Justice Mulcahy ordered further and better discovery. This includes the conveyance deeds for two earlier land sales and the complete 2006 mortgage deed, or an account of efforts to obtain them; clarification and supplementation of correspondence records; and explanations concerning other categories, including a missing mobile-phone video. He also ordered the plaintiffs to provide a map marking the lands over which they claim retained ownership, and to answer an outstanding question about special damages.
The judge said the failures appeared careless or indifferent, but the evidence did not establish at this stage a deliberate attempt to evade discovery or irremediable prejudice. The defendants may renew their strike-out application after receiving the further affidavit and may raise discovery issues at trial.
The parties were given time to agree the terms of the order, with the matter listed for final orders on 15 June 2023. The judge expressed a provisional view that the defendants should receive the allowable costs of the application, with execution stayed pending determination of the proceedings or further order. Either side could submit written arguments on a different costs order.