Title:	Dublin Port Company -v- Bond Road Container Storage and Transport Limited
Neutral Citation:	[2002] IESC 78
Supreme Court Record Number:	219/01
High Court Record Number:	2000 No. 14498p
Date of Delivery:	12/20/2002
Court:	Supreme Court
Composition of Court:	Keane C.J., McGuinness J., Hardiman J.
Judgment by:	Keane C.J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Keane C.J. Link McGuinness J., Hardiman J.

The facts are not in dispute. The plaintiffs/respondents (hereafter “the lessors”) entered into two leases on the 26th March 1996 and the 29th March 2000 with the defendants/appellants (hereafter “the lessees”) demising premises at Bond Road in the docklands area of Dublin for terms of 99 years from the 1st July 1995 and the 1st July 1999. On the 24th November 2000 the solicitors for the lessors served notices of re-entry relying on a number of alleged breaches of covenants in the leases.

The breach alleged in respect of Covenant 7 in each case was that

“You have carried out alterations and additions to the demised premises in default of compliance with the Planning Acts including:-

(a) erecting a communications mast with ancillary equipment on the premises;

(b) by subdivision of the property into separate units;

(c) by carrying out development works on the property;

(d) by changing the use of the property;

(e) By the erection of signs on the property.”

“You have subdivided the premises into separate units and also sublet the premises without consent”.

The lessees having failed to deliver up possession of the premises, these proceedings were instituted claiming an order for recovery of possession and damages for breach of contract. The lessees delivered a defence and counterclaim, which contained a complete traverse of the averments in the statement of claim and a claim inter alia for relief against forfeiture.

On the 20th April 2001, the solicitors for the lessors wrote to the solicitors for the lessees asking them to make discovery in relation to what were described as “all arrangements between the lessees and all of the parties who were carrying on business in the various areas comprised in the leases”.

The letter added

“The reason why such discovery is required is because the defendant has denied that there are third parties in occupation and possession of the premises contrary to the terms of the leases.”

The commendably succinct argument by Mr. O’Dulachain SC on behalf of the lessee rests squarely on two English authorities which, as he properly concedes, were not binding either on the High Court or this court, but which, he urges, are of considerable persuasive authority and should be followed. These decisions – Mexborough (Earl of) –v- Whitwood Urban District Council [1897] 2QB 111 and Seddon –v- Commercial Salt Company [1925] 1CH 187 - were to the effect that in an action to enforce a forfeiture of a lease for breach of covenant the court could not grant discovery of documents or leave to administer interrogatories for the purpose of establishing the forfeiture.

Mr. O’Dualachain submitted that these two decisions of the Court of Appeal in England, both of them subsequent to the replacement of the common law action for discovery by the statutory jurisdiction conferred by the Judicature Acts in England and Ireland represented a practice common to both jurisdictions, although there was admittedly no equivalent decision of the Irish Court of Appeal. In the result, he argued, the practice remained the same in this jurisdiction following enactment of the Courts of Justice Act 1924 and, in particular, s.22 thereof. An established rule of practice of that nature could be removed only by legislation, as had happened in England with the enactment of s.16(1)(a) of the Civil Evidence Act 1968.

On behalf of the lessors, Mr. Gardiner SC submitted that, in the absence of any Irish decision prior to 1924 or any decision of the House of Lords, to the same effect as the two English decisions relied on by Mr. O’Dualachain, there was no reason to believe that the Irish practice as to discovery was subject to any such restriction in the case of actions for ejectment. He pointed out that the rule as laid down in the English decisions had been treated as obsolete by the English Law Reform Committee whose recommendations were implemented by the 1968 Act. The modern Irish Law of discovery was as stated by this court in AIB Bank Plc –v- Ernst and Whinney [1993] 1IR37, 390. That decision made it clear that, in applications for inter partes discovery, the criterion for determining whether such an application should be adjourned or refused was whether the order was necessary for disposing fairly of the cause or matter or for saving costs and that the onus of establishing that it would not lay upon the party against whom discovery was sought and who resisted it. He said that an obsolete rule adopted at one stage by the English courts but never adopted by the Irish courts could not be a ground for refusing to make the order.

I am satisfied that the judgment of the High Court was correct and should be affirmed. In Mexborough, the Court of Appeal rested their decision on the existence of two rules which, it was said, had always been part of the common law of England. The first was that, where a common informer sued for a penalty, the courts would not assist him by their procedure in any way. Lord Esher MR added

“I think a similar rule has been laid down, and acted upon from the earliest times, in respect of actions brought to enforce a forfeiture of an estate in land”.

“we must not lose sight of the fact that it is a most important right of which this bill seeks to deprive the defendant, no less than that of protecting himself by refusing to answer from the consequences of answering questions which might tend to charge him with a crime or subject him to penalties, or forfeiture of estate contrary to the humane policy of the law.”

S.22 of the Courts of Justice Act 1924 provided that

“The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be exercised so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided by such rules of court as may be made pursuant to this part of this Act and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred by this Act.”

The modern Irish law of discovery, as explained by this court in Allied Irish Banks Plc –v- Ernst and Whinny, would, in any event, not permit of any such restriction in the case of actions for the forfeiture of a lease. Commenting on the differences between discovery inter partes and third party discovery, Finlay CJ in the course of his judgment in that case said,

“Notwithstanding these differences between a party to an action and a person who is not a party to an action, which may place, in relation to the obtaining of discovery against a person not a party, a greater onus on the applicant, the basic purpose and reason for the procedure of discovery remains identical in both instances. It is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of being presented to the court by the parties concerned, so that justice on full information, rather on a limited or partial revelation of the facts arising in a particular action, may be done.”

It remains to be noted that the rule in Mexborough was abolished by statute in England in 1968 following a recommendation by the Law Reform Committee which saw no reason for the continued existence of this limitation on the court’s power to order discovery, having regard to the wide powers of the court to relieve against forfeiture.

I would dismiss the appeal and affirm the order of the High Court.