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Legal test for further and better discovery not satisfied in breach of contract proceedings

By: Ian Fitzharris BL

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High Court, in an application by the defendant to dismiss breach of contract proceedings for an alleged failure on the part of the plaintiff to comply with the parties' agreement on discovery, refuses order to dismiss, on the grounds that the legal test providing for the order to grant further and better discovery had not been met, i.e. that either the pleadings, the affidavit of discovery already filed, the documents referred to therein or an admission was forthcoming from the disclosing party that there were further documents in its possession which had yet to be disclosed.

Application to strike out claim for failure to comply with parties' discovery agreement - documentation concerning the hiring of vehicles between plaintiff to defendant - substantive proceedings seeking specific performance of contract for hiring of vans on a five year lease - plenary proceedings - affidavit of discovery filed by plaintiff based on 11 categories of documents - supplemental affidavit filed - further categories sought - legal principles on discovery - O.31. r.12 RSC - relevance and necessity - privilege - law on further and better discovery - three new additional categories of documents sought are further specifications of existing categories - insufficient discovery in fact made - plaintiff in compliance with agreement reached between parties - legal test on further and better discovery unmet.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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