The Court of Appeal has ordered Fiona O’Donnell to make discovery to Saltan Properties Limited of documents in a disputed category concerning communications with the insurer of the Riverwalk Court apartments. The order is limited to documents up to 19 December 2012 and must be made by affidavit by 31 July 2022, with O’Donnell as deponent.
The ruling was delivered by Ms Justice Máire Whelan on 29 March 2022, with Justices Faherty and Binchy concurring. Saltan appealed a High Court discovery order made on 18 December 2019. It challenged the refusal of its request for Category 3 documents and also appealed discovery granted to O’Donnell. The Court of Appeal dismissed Saltan’s challenge to the discovery ordered in O’Donnell’s favour, finding no basis to interfere with that part of the order.
The underlying proceedings concern alleged defects, including water ingress, at Riverwalk Court Apartments in Ratoath, County Meath. The development comprises 26 apartments and was completed around December 2005. O’Donnell’s pleaded claim against Saltan is confined to losses she says were uninsured, including losses allegedly caused in part by insured defects. Saltan’s defence raises, among other matters, mitigation and limitation issues.
Category 3 covers correspondence between O’Donnell and others, including the development’s management company, representatives, other plaintiffs in similar proceedings and the insurer, concerning the defects. Saltan argued that these records could help establish when defects became apparent, their nature and extent when reported, what was done to remedy them, and whether delays worsened the loss. It also said the documents were relevant to the dispute over which losses were insured and to its limitation defence.
The High Court had refused Category 3 on the view that the insurer would need to be joined for the insurance issue to be determined. The Court of Appeal held that this was an error: the insurer did not have to be a party for Saltan to pursue the pleaded issues in this action. The court did not decide whether particular losses were insured, the legal effect of the non-recourse clause, or the merits of Saltan’s defences. Those matters remain for the trial judge on the evidence and law.
The appeal court also set aside the High Court costs order. Each side must bear its own costs of the High Court discovery motions. For the appeal, O’Donnell was awarded costs, with Saltan entitled to one half of its appeal costs; both awards are subject to adjudication if not agreed and are stayed pending determination of the proceedings. Either party may seek a different costs order by filing submissions within 21 days of judgment.