The High Court has declined to strike out a kitchen business owner’s claim for about €6.5 million against three companies over an unsuccessful worktop venture, after a dispute about whether he had complied with a court order for discovery.
Mr Justice Noonan ruled on 15 January 2015 that the second and third-named defendants’ application to dismiss Michael Leahy’s claim for want of prosecution should not be granted. The court directed Mr Leahy to file a supplemental affidavit of discovery within three weeks, listing documents he had produced since his first discovery affidavit.
Mr Leahy, a sole trader, alleges that he contracted with the defendants for raw materials to make customised laminated worktops. He says the materials were not produced, or were not produced to specification or on schedule, causing the venture to fail. He claims damages for breach of contract. These are allegations in the proceedings, not findings on the merits.
The defendants sought dismissal over compliance with a June 2012 order requiring discovery of documents comprising the accounts of Mr Leahy’s worktop business or intended business. The judge noted that Mr Leahy initially supplied only two one-page balance sheets and did not provide a discovery affidavit until January 2013, after an earlier dismissal motion had issued. He later supplied accounts for 2004 to 2008 and, shortly before the November 2014 hearing, sent further working papers recovered from a damaged laptop.
The defendants argued that the material remained inadequate and that the missing documents prevented them from assessing the claimed losses. Mr Leahy accepted that he had misunderstood discovery but said he had now complied.
The judge said it was not clear that there was an ongoing failure to comply with the 2012 order. The order concerned accounts for the worktop venture, and some material sought by the defendants related to Mr Leahy’s other kitchen business or went beyond the order’s scope. The court also said that the defendants’ difficulty understanding how the losses were calculated did not, by itself, show a breach of that order; documents supporting the loss calculations could be sought through discovery if covered by an order.
The judge could not determine from affidavit evidence alone whether any non-compliance had been deliberate. That question, and its possible effect on Mr Leahy’s credibility and claim, could be examined at trial. He was also “far from convinced” that any perceived failure would make a fair trial impossible.
The application was therefore refused. The ruling did not decide the underlying breach of contract claim or the amount of any loss. The judge considered it appropriate for the defendants to have brought the application, given Mr Leahy’s delay and limited response to the discovery order.