The High Court has reserved the costs of Ryanair’s now moot application over delayed discovery for the judge who will hear the underlying dispute, following a judgment delivered on 2 February 2016.
Mr Justice Max Barrett said the application, issued on 3 December 2015, was likely to have failed. Ryanair had asked the court to strike out the State defendants’ defence and enter judgment for the airline unless they served an affidavit of discovery by 18 December. Alternatively, it sought an order preventing the State from recovering discovery-related costs, regardless of the outcome of the proceedings.
The State made discovery on 11 January 2016, and the application became moot. The judge said the State had not been trying to avoid discovery and there was no wilful default, culpability or deliberate concealment. He also said delay alone did not establish negligence. The court found no basis to conclude that Ryanair would be unable to receive a fair trial because of a wilful refusal to comply: discovery had been made.
The judgment recounted delays on both sides. Ryanair delivered its affidavit of discovery on 30 November 2015, after having initially agreed to do so by the end of November 2014. The State delivered its affidavit 42 days later, after the intervening end-of-year holidays. The judge described the race to complete discovery as close, with Ryanair finishing slightly ahead.
The State cited resource constraints, discussions about discovery methods, searches across government departments and offices, review of more than 50,000 records, and technical problems with printing and assembling documents. More than 3,000 records were being discovered. The judgment said over €200,000 had been spent on documentary counsel and e-discovery experts, and that the State’s final discovery and document-production costs, excluding solicitors and counsel, would be about €300,000.
The judge said the discovery delays had occurred on both sides and that the State had devoted considerable time and money to meeting its obligations. He rejected the alternative costs order sought by Ryanair, saying he doubted such an order had issued from the courts and could not conceive of circumstances in which it would be made.
Given the significant, almost equal delays, the court reserved the costs of Ryanair’s moot application for the trial judge to decide after the substantive dispute between the parties is tried. The judgment did not decide that underlying dispute.