The Court of Appeal dismissed Dunnes Stores’ appeal over discovery in a commercial dispute with Camiveo Limited, ruling that the appeal was moot after the underlying action had concluded.
In a judgment delivered by Mr Justice Michael Peart on 29 January 2019, the court said it was not satisfied that Dunnes Stores could derive any “real benefit” from a successful discovery appeal. The court did not determine the disputed discovery issues on their merits.
Camiveo owns a shopping centre in Galway where Dunnes Stores was a tenant. After Dunnes Stores stopped paying rent, summary proceedings were brought to recover it. Defences were rejected as not arguable and judgment was entered. Dunnes Stores then closed its doors to the public. Camiveo’s later plenary proceedings alleged that the closure breached lease covenants, including those concerning planning permission, fire safety and insurance.
Dunnes Stores sought discovery of documents in November 2015. Camiveo provided discovery by affidavit in January 2016. Almost four months later, Dunnes Stores complained that the discovery was inadequate, arguing that Camiveo had not properly particularised privilege claims and had wrongly redacted material on grounds of commercial confidentiality. It applied to strike out Camiveo’s claim or, alternatively, to obtain further discovery.
The High Court refused the application on 1 June 2016. The trial judge, Mr Justice McGovern, reviewed the disputed documents and was satisfied that privilege had been properly claimed and that some redactions on commercial sensitivity grounds were justified. The three-week trial began on 7 June 2016 and Camiveo succeeded, obtaining an award of damages. Dunnes Stores appealed both the discovery ruling and the outcome of the main action; the main appeal was listed for March 2019.
The Court of Appeal agreed with Camiveo’s submission that any documents obtained through the discovery appeal would not assist the main appeal unless they could be admitted as new evidence. It referred to the test in *Murphy v Minister for Defence*, including whether the evidence could have been obtained with reasonable diligence for use at trial. The court said the four-month delay in raising the discovery complaint meant that requirement had not been shown to be met. It also noted that no ground of appeal had been identified to which the disputed documents would be relevant.
The court therefore dismissed the discovery appeal as moot. Its ruling concerned only that appeal; the judgment records that the separate main appeal was listed for hearing in March 2019.