The High Court varied a Master’s discovery order in a lawsuit arising from the 2000 sale of Rocca Tiles Ltd. and Tilebusters Ltd., directing the law firm Arthur Cox to disclose specified additional documents to the plaintiffs. The order was limited to material not already provided; where no additional documents existed, the firm could say so by affidavit.
The plaintiffs, investors in Linfen Ltd., allege breaches of warranty, misrepresentation and deceit by the sellers, and negligence and breach of duty by Arthur Cox. They claim, among other things, that a dispute with customer Patrick O’Connor was not disclosed. Arthur Cox denies the allegations. The judgment addressed discovery applications only; it did not determine the underlying claims.
The Master had ordered discovery in four categories after Arthur Cox had supplied its file to the plaintiffs. The plaintiffs appealed, seeking broader disclosure, while Arthur Cox appealed to discharge the order as unnecessary or irrelevant. The court considered necessity and relevance, the parties’ roles, prior disclosure and whether documents should instead be sought from another party.
The court expanded the first category to cover correspondence and internal memoranda, including emails, between named partners and relevant firm staff about the issues in the case and the terms of Arthur Cox’s retainers by both sides, insofar as the documents had not already been provided. It also expanded the category concerning advice to the plaintiffs about alleged failures to check or identify deficiencies in the companies’ financial performance.
The court declined to order discovery from Arthur Cox of correspondence with National Irish Bank or BDO and Chapman Flood Mazars. It found no identified deficiency in the material supplied and said the plaintiffs had not shown necessity; the relevant documents were prima facie within the plaintiffs’ or other parties’ control.
The court separately ordered disclosure, if not already provided, of documents about the dispute concerning the companies’ accounts with O’Connor, related litigation involving him and the first five defendants, and the cessation of trade between O’Connor and the companies. It also ordered disclosure of any remaining advice from Michael Meghen to the plaintiffs about their options and remedies after alleged breaches by the sellers. The court said privilege could be asserted, with any dispute over whether it applied to be decided later.
Arthur Cox was directed to provide an affidavit of discovery within four weeks. The court also said the firm should undertake to preserve original documents within its possession, power and control concerning the issues.