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The High Court (Mr Justice Oisín Quinn) delivered an ex tempore judgment on 27 March 2026 (Daly v Kavanagh and Ors, Record No. H.P.2016.1198), dismissing a challenge to discovery on the basis of what the Court deemed a “technical approach” and a failure by the Plaintiff to specifically identify any documents which he says ought to have been discovered.
In advance of the hearing of the motion, the primary focus of the correspondence, the grounding affidavit and the Plaintiff’s written submissions was on alleged deficiencies in the discovery made. In particular, these related to technical points in the affidavit of discovery. However, in seeking to strike out the defence and attach the deponent of the affidavit of discovery, the Plaintiff’s oral submissions largely pivoted to focus the application on two other substantive issues which the Plaintiff said justified an order for further and better discovery.
The Court held that:
1. Mere technical arguments are not a sufficient basis for the Court to grant an order for further and better discovery.
2. If undiscovered documents exist and are in the possession of the challenging party, evidencing a breach of a discovery order, those documents should be put before the court in any motion challenging the adequacy of the discovery made. Where such a motion is brought, those documents cannot be held back to the trial of the action.
Background
The proceedings centre on an alleged agreement between the Plaintiff and the First Defendant in respect of certain properties (the Properties). The Plaintiff claims that he provided the deposit for the Properties to the First Defendant in 2013, in return for a 25% beneficial interest in the Properties.
The Plaintiff further claims that, contrary to the alleged agreement, the Properties were later acquired by the First Defendant and the Second to Fifth Defendants, who engaged in a series of transactions to put the Properties beyond the Plaintiff’s reach.
The Second to Fifth Defendants (the Developer Defendants) were required to make discovery of six categories of documents and delivered their discovery in December 2024.
The Motion and decision
The Plaintiff issued a motion in August 2025 pursuant to Order 31, rule 21 of the Rules of the Superior Courts (RSC), seeking (a) to strike out the Developer Defendants’ Defence for failure to comply with the discovery order and (b) the attachment of the Fifth Defendant (the Motion). However, at the hearing of the Motion, the relief sought was an order for further and better discovery.
Legal principles
In the course of its ruling, the Court summarised the legal principles as follows:
1. Test to be applied to applications under Order 31, rule 21 RSC – A court will only make an order pursuant to Order 31, rule 21 RSC striking out the defence where there has been (a) a failure to make discovery; and (b) even if that failure is deliberate and malicious, there must be “a substantial risk of injustice which cannot be remedied by the making of an order for further and better discovery and/or costs” – Go2CapeVerde Limited & Anor -v- Paradise Beach Aldemento Turistico Algodoeiro S.A. [2014] IEHC 531.
2. Threshold to establish a failure to make discovery – As set out in McNulty -v- The Governors and Company of The Bank of Ireland [2021] IECA 182, the challenging party must demonstrate that undiscovered documents exist which ought to have been disclosed. The application cannot be solely based on allegations on affidavit that such documents exist – the challenging party is required to establish a default in the discovery exercise which raises a reasonable suspicion that other relevant documents must exist.
Challenges raised by the Plaintiff
1. Alleged deficiencies in the affidavit of discovery
In correspondence issued in advance of the Motion, the Plaintiff’s focus was on alleged deficiencies in the affidavit of discovery sworn on behalf of the Developer Defendants, including apparent issues with the approach to redactions and search terms, the treatment of attachments, the loss of documents over time and the order of the documents produced. However, these miscellaneous points were effectively abandoned at the hearing of the Motion.
The Court was ultimately satisfied that there was no substantive merit to the points raised, finding that the Plaintiff “utterly failed” to identify any clear breach of discovery obligations by the Developer Defendants.
2. Documents allegedly not discovered / listed under particular categories
The Plaintiff argued that there appeared to be no documents discovered in relation to two categories, in circumstances where the Developer Defendants had listed discovery documents under the most relevant category in the affidavit of discovery and included the usual averment to this effect.
The Court regarded this as a “relatively trivial point” and refused to make any further order on this basis. The Court noted that the Plaintiff had not (i) identified any documents which he said existed under either Category A or B but which had not been discovered and (ii) was unwilling to aver that there were any missing documents from either category. Instead, the Plaintiff had taken a “much more technical approach”, arguing the Developer Defendants were required to confirm by way of further affidavit whether documents had been discovered under Categories A or B or not, rather than simply identifying the most relevant category.
In finding against the Plaintiff, the Court noted that it will not permit the “holding back” of evidence by an applicant where there is a belief, or the applicant can demonstrate, that a party is in default of its discovery obligations. The Court’s position was that if the Plaintiff had a genuine and serious concern for believing that there were actual documents that had not been discovered, that evidence should have been put before the High Court in the Motion.
3. Further identifiable documents allegedly not discovered
The Plaintiff argued that there appeared to be identifiable documents which ought to have been discovered by the Developer Defendants, by reference to the contents of a single email which had been provided by the Developer Defendants in the discovery. The Plaintiff had failed, however, to identify any specific documents related to the email which he claimed should have been discovered. The Court found that “zero analysis” of the discovery had been carried out by the Plaintiff to demonstrate that there were documents missing. The Court described this as a “wholly inadequate” approach to the “serious and time-consuming criticism” of the discovery.
The Court reiterated that where a party challenges the adequacy of discovery on the basis that there are further identifiable documents which ought to have been discovered, the first step required is a “careful and comprehensive review” of the discovery received. Once that party has done its “homework” and completed that exercise, it should be able to identify references to documents not discovered and/or references to events likely to have generated documents which ought to be discovered.
The Court concluded that the Plaintiff had fallen “wholly short” of meeting the onus set out in McNulty and was not satisfied of the necessity for an order for further discovery against the Developer Defendants.
Attempt to rely on further documents not raised on affidavit
It should be noted that the Plaintiff indicated at the outset of the hearing of the Motion that additional points would be made on the adequacy of the discovery. The Plaintiff sought to rely on other documents provided in discovery, by reference to which it was said to be possible to demonstrate that other documents had not been discovered. These claims were not particularised in the pre-Motion correspondence, affidavits or submissions before the Court, and no explanation was provided as to why this analysis had not been done in advance of the hearing.
The Court refused to allow the Plaintiff to make those arguments in circumstances where the Developer Defendants had not been afforded sufficient notice. The Court indicated that it would be willing to facilitate an adjournment of the Motion on terms, including that the Plaintiff would be responsible for the Developer Defendants’ costs of the part-heard Motion to date, if the Plaintiff wished to rely on those arguments and put the Developer Defendants on notice. The Plaintiff chose not to avail of that offer.
Conclusion and key takeaways
The Court refused the Motion and awarded the Developer Defendants’ their costs of the Motion, with a stay on the execution of the costs for a period of 12 months, or until the conclusion of the Proceedings, whichever is earlier.
The decision serves as an important reminder to litigants of the risks of pursuing a formal challenge to the adequacy of the discovery made by their counterparts, which has become a more common feature of commercial litigation in recent years. The requisite legal threshold to be met by a successful applicant is well-established but not insignificant and requires the applicant to undertake a thorough exercise to demonstrate why they believe the discovery is inadequate. This includes pre-motion engagement with the other side, which typically involves a laborious and costly exercise for an applicant’s legal team.
A court will not look favourably on a litigant who, in challenging discovery and inevitably delaying the progress of the litigation, fails to demonstrate that they have undertaken that serious exercise in preparing a well-grounded claim that inadequate discovery has been made.
A&L Goodbody LLP were pleased to act on behalf of the Developer Defendants in this matter.
For further information in relation to this topic, please contact Tom Casey, Partner, Rebecca Martin, Senior Associate, Amie Creaton, Solicitor or your usual contact in the ALG Disputes & Investigations team.
Date published: 15 May 2026
