The Court of Appeal has recently indicated that when seeking discovery some latitude will be allowed around the particularisation of pleadings alleging clandestine wrongdoing.
In O'Brien v Red Flag Consulting,1 the plaintiff commenced proceedings against the defendants alleging conspiracy, defamation and the causing of loss by unlawful means. In particular, he pleaded that as part of the alleged conspiracy, certain defendants had engaged in a campaign of briefing politicians and journalists with material adverse to the plaintiff’s interests. He said that this was with the express purpose of having those individuals promote and publish the material with the predominant intention of injuring and/or causing loss to the plaintiff. In a schedule to the pleadings, the plaintiff set out details of communications between certain defendants and one named politician.
In order to advance the wider conspiracy claim, the plaintiff sought discovery of all documents relating to the briefing of any politicians or journalists with material adverse to the plaintiff’s interests, including documents relating to the purpose or motive of such briefings.
In resisting the application, the defendants argued that the plaintiff had failed to provide any meaningful particulars of the broader conspiracy allegations. They said that the plaintiff was engaged in a fishing expedition, that the category of documents sought was imprecise and that the material was irrelevant to the plaintiff’s claim.
In granting discovery, Donnelly J reiterated the applicable principles. She said that discovery should be both relevant and necessary. A document was relevant if it might reasonably form the basis of a line of enquiry which might lead to the discovery of information that would advance the case of the seeker and/or weaken that of the party against whom it was sought. It was sufficient that a document might contain such information. It was not necessary to prove that it would.
She went on to say that relevance was determined on the basis of the pleadings and not the evidence. A plea should be taken at its high watermark and it was generally not the role of the court to embark on an enquiry as to the strength of the case or the probability of proving a pleaded fact. However, it was not open to a party to submit a bare and unparticularised plea in the hope of using discovery to obtain evidence in support of a claim that was not particularised. In particular, a document could not be sought for the purposes of demonstrating the existence of a claim where there was no other evidence to suggest that one existed.
Case before the court
Donnelly J said that the documents sought here were clearly relevant and closely mirrored the pleaded claim. She was also satisfied that the conspiracy claim was sufficiently particularised. However, she went on to say that if there was any doubt as to the sufficiency of the particularisation, this was put to rest by the fact that the alleged conspiracy was, by its nature, a clandestine affair the extent of which was not known to the plaintiff.
She said that the decision of National Educational Welfare Board v Ryan2 was relevant here. In that case, the plaintiff alleged that the first defendant was bribed by the second defendant to overcharge the plaintiff for goods and services. The second defendant asked the plaintiff for particulars of the claim but the plaintiff failed to reply. Notwithstanding that failure, the court ordered the defendant to file a defence. Clarke J. reasoned that if a plaintiff making an allegation of fraud was required to particularise prior to defence in a manner which narrowed the case;
“…there was every chance that, in a genuine case of fraud, the perpetrator would escape having to make discovery in respect of aspects of the fraud because the plaintiff would not have been sufficiently aware of the details of those aspects of the fraud to plead them in an appropriate manner…”.
Donnelly J pointed out that in his judgment Clarke J had considered that the principles set out by him could apply to “cases of fraud or other clandestine activity”. She was satisfied that the claim before her, being one of conspiracy, came within this category and the relevant principles were applicable to an application for discovery.
However, she pointed out that in his judgment, Clarke J had been fully alive to the problem of allowing parties to make a mere invocation of fraud in order to engage in a widespread trawl. That was not permissible. There was a balance to be struck between those competing factors. There should be no indulgence of a claim set out by way of a bare assertion but there should also be a recognition that full details could not be given.
In the present case, Donnelly J said that the details given in the pleadings went beyond the situation of bare assertion and gave sufficient particularisation of the plaintiff’s claim of conspiracy to provide the defendants with a “reasonable picture” of the conspiracy alleged.
This judgment shows that the Irish courts are alive to the practical difficulties faced by litigants seeking redress for alleged clandestine wrongdoing against them. However, while some leeway is allowed, the courts will not permit bare assertions of wrongdoing to form the basis for a trawl of an opponent’s material. There is a balance to be struck between the parties in every case.