The Court of Appeal has allowed an appeal over discovery in a dispute concerning alleged agreements to hire motor vans, ordering the plaintiffs to provide a single, composite affidavit listing relevant documents and explaining what searches were made for documents they once held but no longer have.
The court refused the defendant’s request for discovery under three additional categories. It said the defendant’s own position was that those documents were already covered by the categories agreed in 2012. The defendant had not established that further categories were justified, and the required procedure for varying an existing discovery agreement had not been followed.
The underlying claim is for specific performance and damages. The plaintiffs allege that the defendant agreed to hire vans for five years, then stopped rental payments and sought to return the vehicles early. The defendant says the vehicles were supplied under an oral framework agreement for short-term hire at a weekly spot rate, and alleges that the plaintiffs wrongfully refused to accept their return, causing storage and security costs. These are pleaded positions; the appeal concerned discovery, not the merits of the contract dispute.
The court found that the plaintiffs’ affidavits did not individually list documents for which privilege was claimed, as required by the rules. It also found deficiencies in how the affidavits addressed documents that had once been held but were no longer in the plaintiffs’ possession or power. The court said the evidence did not give it confidence that the plaintiffs had established what documents in the agreed categories they may previously have held or what had become of them.
The court did not order the plaintiffs to discover particular documents based solely on the defendant’s assertions that such documents existed. It said the defendant could cross-examine the relevant deponent at trial if it believed the sworn statements were false.
Instead, the Court of Appeal replaced the High Court order refusing the application with an order requiring one composite affidavit covering documents within the categories agreed in a November 2012 letter, subject to a clarification made in February 2013. The affidavit must properly list and schedule documents over which privilege is claimed, comply with the relevant court rules, and explain—within that affidavit or a separate one—the precise steps taken to identify documents once held but no longer held. The judgment was delivered by Mr Justice Murray, with the President of the Court of Appeal and Ms Justice Faherty in agreement.