Discovery refused even where ‘unconscionable conduct’ alleged

In Kelleher v National Asset Loan Management Ltd [2019] IEHC 392​, the High Court refused an application for discovery, even in circumstance where the plaintiff alleged 'unconscionable conduct' on the part of the defendant. The court found that even if a' limited threshold' test for discovery is applicable to a case of this nature, the plaintiff must still show relevance and necessity. The court also emphasised the disproportionality of the requests, and considered the resources that the defendant would have to deploy to satisfy the plaintiff's application

Background

The plaintiff's claim arose out of the disclosure of confidential information relating to his financial affairs by an employee of the defendant to members of the media. He sought five categories of discovery, whereas the defendant offered two, more limited categories.

Decision

The court found that the plaintiff was not entitled to documentation relating to any internal investigations or enquiries conducted by the defendant in the aftermath of the disclosure of confidential information, as such an investigation

"…cannot be utilised by the plaintiff to then seek to make additional allegations against this defendant as to the discharge of confidential information".

The court considered the defendant's submission that making the discovery sought would require scrutiny of in excess of 265,000 emails and 228,490 documents, and commented that interrogatories and initial limited discovery should be used by the plaintiff to make a more focused application for discovery at a later date.

Pilkington J held that an application of a 'modified test' for discovery

"…does not and cannot be taken to mean that once a pleading of the disclosure of highly confidential information is made… then the plaintiff is in some way at large in respect of the documentation that it can seek thereafter. In my view this is to misstate the position".​

For more information on this topic please contact Ciaran Joyce, or any member of A&L Goodbody's Litigation and Dispute Resolution.

Date published: 19 June 2019