The High Court has ordered discovery of documents up to 1 April 2020 in eight disputed categories in a case over the construction of the new children’s hospital at St James’s Hospital Campus in Dublin 8. It refused discovery in two other categories and left some questions about start dates and reciprocal discovery unresolved.
The judgment by Mr Justice Michael Quinn concerns discovery only. The underlying first module of the proceedings will determine whether the National Paediatric Hospital Development Board validly instructed BAM Building Limited to begin Phase B works on 8 January 2019. The court did not decide that question or the defendant’s counterclaim for damages.
The contract made the start of Phase B conditional on the adjusted contract sum first being agreed or determined by an expert. The Board says the sum and guaranteed maximum price were agreed before the instruction. BAM argues that the pre-Phase B process also required the design to be completed and coordinated, and that it was not. The parties dispute what the contract required and the state of the design when the instruction was issued.
Mr Justice Quinn said the first module focuses on the position on 8 January 2019. Documents created later could help show what the design’s state had been, but their likely relevance diminished over time. He noted that BAM said design deficiencies began to emerge at a workshop on 17 and 18 January 2019, and that it had enough information by 30 July 2019 to refer its dispute to conciliation. The judge considered an end date of 1 April 2020 proportionate for the categories he allowed.
Those categories cover the design’s state and coordination, concerns raised by BAM and responses to them, exchanges between the Board and its design team, requests for construction documents, the building information model, a disputed telephone call on 28 December 2018, and an alleged agreement to deal with the model outside the guaranteed maximum price. The judge said the parties already had access to a shared platform containing design documents and their revision history.
The court refused discovery under Category 4, which sought documents about the decision to use a phased construction approach and the level of design or construction assigned to each phase. The phased approach was not disputed, while the broader request was too sweeping and sought material about the Board’s subjective intentions. It also refused Category 5(i), concerning the design team’s contractual obligations, because other agreed categories and the design team contracts would cover the relevant pleaded issue.
The judge was not asked to decide the categories’ start dates. He said the parties should identify proposed dates and return if they remained in dispute. He also gave a preliminary view that reciprocal discovery should be allowed, but said submissions could be heard if the parties disagreed.