The High Court has ordered the Minister for Education and Skills to provide a supplemental affidavit about the search for records concerning construction at Ardgillan Community College, and to disclose specified documents sought by Western Building Systems Limited (WBS). The ruling did not decide the underlying claim about alleged defects at the school or whether third parties had duties to supervise the works.
The Minister is seeking damages from WBS, alleging breach of contract, negligence, breach of duty, negligent misstatement and/or misrepresentation in the construction of the building. WBS denies almost all the allegations and says any defects were caused by the Minister, including her agents, or by third parties. Those matters remain for trial.
WBS’s motion concerned further discovery: records it said the Minister had not disclosed. The judge criticised WBS for waiting until September 2020 to set out complaints that could have been raised earlier, leaving the Minister little time to respond before the motion was issued. By the hearing on 9 October, the dispute had narrowed considerably.
One remaining issue was whether the Minister had searched her own departmental records for documents covered by Category 1, which included contracts and records of monitoring or supervision by project managers and other named entities. WBS was concerned that the Minister had relied on records held by KSN, whose relevant archive had been destroyed. The Minister said departmental files had been searched. The judge directed Jason McCabe to swear a supplemental affidavit confirming the search and making clear that relevant monitoring and supervision records had not been excluded because of the Minister’s position on those entities’ roles. Whether KSN or others were obliged to supervise the works was a matter for trial.
The other issue concerned 18 document entries, reduced from 71 items originally raised by WBS. The judge said attachments to disclosed documents are not automatically discoverable, but considered each disputed entry. He ordered disclosure of specified records, including the “as built” drawings, a Barrett Mahony report for Ardgillan, and documents the judge considered covered by the agreed categories. Some requests were refused or required no further action because the material had already been disclosed, was not in the Minister’s possession or control, or had not been shown to relate to Ardgillan. For the 16 October 2018 meeting note, the judge rejected WBS’s general claim that sections 1–3 related to all schools, but found documents sought at parts (1) and (3) discoverable insofar as they related to Ardgillan.
The court said it would address costs and other procedural matters at the next hearing, which was to assess progress in the third-party proceedings.