Autumn 2019 dsba.ie Jessica Cantwell is an associate at Eugene F. Collins
documents and successfully obtained an order of the igh ourt on 3 e ruary 20 . n appeal, avy toc ro ers contended that the trial judge erred in his application of the principles of relevance and necessity and secondly, raised an issue as to whether the trial judge took appropriate account of the fact (which was ac nowledged during hearing) that the credit union s solicitors had breached its implied undertaking as to con dentiality in relation to discovery of documents made availa le y avy toc ro ers in other proceedings in which the rm of solicitors had previously acted. The documents sought by the credit union concerned rstly an investigation y the rish toc change into avy toc ro ers role in the sale of investment bonds to credit unions; secondly documents relating to avy toc ro ers alleged disclosure of its role in the sale of the bonds and nally documents relating to meetings held etween the two parties at which it is alleged that Davy toc ro ers disclosed its role as principle in the sale of the bonds and the sums it earned as a result.
Decision Notwithstanding that the documents in question were considered to be relevant and necessary for
Litigation
the disposal of the case, the ourt of ppeal had to determine if the breach of the implied undertaking to the court by the credit union’s solicitors was so egregious that it should refuse to make an order for discovery in favour of the plainti , in respect of documents to which they would otherwise be entitled to on the basis of ordinary discovery principles. The ourt of ppeal weighing up the various issues, overturned the High Court’s order of discovery in respect of two of the rish toc change reports. The ourt of ppeal s rationale was to ensure that avy toc ro ers did not su er a litigious disadvantage as a result of the breach of the implied undertaking on the part of the credit union’s solicitors in relation to discovery made in a previous and entirely di erent case, in which the solicitors in uestion were acting for a di erent credit union. The ourt of ppeal endeavoured to mar “in a meaningful way the serious breach of the undertaking that had occurred , notwithstanding that the solicitors for the credit union submitted that the breach was entirely inadvertent . ccordingly, on appeal, the order of the High Court was varied, and the credit union was refused an order for discovery of the two reports they had sought. P
The credit union sought discovery of three categories of documents and successfully obtained an order of the High Court
the Parchment 33