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Court of Appeal allows appeal and overturns a decision of the High Court refusing to direct that the defendant make discovery of certain documents sought by the plaintiff, on the grounds that: (a) it was not open to the defendant to meet the application for discovery by asserting that the plaintiff's pleaded claim will fail in limine and therefore that discovery is not necessary in circumstances where they did not seek to have it dismissed as a preliminary matter; (b) the Court was unable to conclude from the authorities at the discovery application stage that the claim was so clearly unsustainable or that the issues were so narrow that discovery was not necessary; (c) the Court was unable to conclude that the defendant was so clearly correct with regards to the arbitration clause that discovery was not necessary; and (d) the trial judge erred in deciding the application not by reference to the issues on the pleadings, but rather on the basis of her view as to how those issues would be resolved at trial.
Collins J (nem diss): Appeal of a decision of the High Court refusing the plaintiff's application for discovery - Order 31, Rule 12 - the plaintiff was retained by a 3rd party to construct a swimming pool at a leisure centre - the plaintiff hired a domestic subcontractor to construct the roof of the leisure centre - the roof was extensively damaged during a storm and the plaintiff sought to have the domestic subcontractor make good the losses suffered as a result of the damage - the subcontractor had an insurance policy written by the defendant - the defendant refused to indemnify the subcontractor - the plaintiff issued proceedings against the subcontractor, who subsequently went into voluntary liquidation - the plaintiff issued proceedings against the defendant seeking a declaration that they were bound to indemnify it pursuant to s. 62 of the Civil Liability Act 1961 ('the Act') - the defendant argues that the claims are misconceived at law and that the plaintiff has no right of action pursuant to the Act - the plaintiff sought all documents in relation to the refusal to indemnify - the defendant agreed to provide the declinature letter but no other documents - the trial judge refused the application on the basis that there was no privity of contract between the plaintiff and defendant - whether the documents sought were necessary - the defendant did not seek to dismiss the proceedings as bound to fail - whether the claim was so clearly unsustainable or the issues were so narrow that discovery was not necessary - whether the subcontractor's failure to challenge the refusal meant that discovery was not necessary - appeal allowed - discovery ordered.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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