The High Court has ruled that Tioxide Europe Limited must use the appropriate process to seek release from restrictions on documents disclosed in earlier UK litigation before its objection to producing them in an Irish case can be finally decided.
Mr Justice Clarke delivered the judgment on 26 July 2007 in proceedings brought by Cork Plastics (Manufacturing) and other named plaintiffs over alleged defects in compounds supplied for making fascias and related products. The plaintiffs alleged the compounds caused “pinking” and serious damage to their business. The judge did not decide those allegations or the disputed losses in this judgment, which concerned discovery of documents.
Tioxide had disclosed the existence of documents prepared in UK proceedings in its affidavit of discovery. Their relevance had not yet been assessed by its legal advisers. The parties agreed that English Civil Procedure Rules restrictions applied to the documents, and that they could be used beyond the UK proceedings only with the relevant parties’ agreement or the English court’s permission.
Tioxide argued that Irish procedural law did not require it to seek those consents or permission. Cork Plastics said the documents were physically in Tioxide’s possession and that the issue was whether it had a legitimate objection to producing them, not whether they were within its possession or power.
The judge agreed with Cork Plastics on that point. He said documents subject to an obligation restricting their use should still be listed in an affidavit of discovery, with any objection to production stated. If production is sought, the party benefiting from the earlier restriction should be joined to the application and given an opportunity to consent. The court should give substantial weight to the need for the later proceedings to reach a just result, subject to any significant countervailing factor.
Because the restriction arose from proceedings in another jurisdiction, the Irish court could not itself release Tioxide from its obligations to the English court or second-guess that court’s decision. Clarke ruled that the Irish objection could not be finally determined until Tioxide had invoked the appropriate process under the procedural law of the other country to seek release.
The judgment did not order immediate production or determine what the English court should decide. Clarke said that if Tioxide failed to invoke the process bona fide, it would be in breach of its discovery obligations. Any further sanction would have to be considered if that situation arose.