A High Court judge has warned Cassidy Bros Concrete that his patience is “being exhausted” in relation to the firm’s continued refusal to comply with the discovery process.
Defendants Cassidys were ordered to hand over hundreds of thousands of documents to the plaintiffs in a class action suit currently being taken on behalf of 2,000 homeowners, whose properties were built with defective concrete.
The Buncrana firm, which was supposed to have complied with discovery by May 2024, had given an undertaking last Monday, March 3 that it would comply. However, it emerged that it still hadn’t done so one week later.
The company was hauled before Mr Justice Mark Sanfey at the Commercial High Court in Dublin once again on Monday, March 10.
The judge said he was “particularly disturbed” by the fact that the discovery documentation had been shared with the other parties in the case – co-defendants Donegal County Council and the National Standards Authority – but the plaintiffs were still left waiting.
“That is a scenario that’s rather difficult to believe,” he said.
Defending Cassidys in the case, Mr Eamonn Dillon raised “genuine concerns” that his clients could be “threatened”, “harassed” or “bullied” if certain documents containing their personal information were to be released.
However, Mr Ben Clarke BL, instructed by Coleman Legal Solicitors, who are bringing the class action on behalf of the homeowners, accused Cassidys of “wilful refusal” to comply with the High Court’s orders.
“The Cassidy defendants seemingly have no hesitation in not complying with the Court’s orders. When they do get an extension they don’t comply with those directions either,” he said.
“It’s just not acceptable. And there should be a sanction for this conduct, Judge.”
Mr Dillon accused the plaintiffs’ legal representatives of “kicking me and my clients; it’s the greatest hits all over again, rehashing the entire matter”.
Defence solicitor Dillon, who also expressed concern about “how this will play in the local papers in Donegal”, said his clients were worried about who their documents might be shared with following discovery, an argument he has made previously in court.
“Judge, my concern was in good faith, a document might be copied and once it’s printed anybody after that could make a copy and it could go anywhere.”
Mr Dillon said the discovery documents “are going to contain names, addresses, phone numbers, contact details of people.”
He said his clients and their associates have been previously harassed and bullied.
“What’s happening in these cases, it happened over the last number of years, people who are employees, who are third parties have been harassed, have been threatened, have been bullied. It has been horrendous, Judge, and people have genuine concerns.”
Mr Dillon added: “I’m happy to make discovery, I can do it within the hour. All I’m asking is for some assurance that some steps will be taken that documents that are printed would not be just willy-nilly sent anywhere.”
Mr Justice Sanfey said he found it “very difficult to accept that you’re now coming back before the Court and saying there’s a further problem.”
“We thought we had arrived at a position last Monday [March 3] where all of this was sorted,” the judge said.
“On several occasions I have said that the patience of the Court is being exhausted. The only reason why your client was extended the degree of patience that it was, were the constant representations on your part that money was an issue and that the company that was doing the scanning had agreed to scan the documents on a certain basis,” Mr Sanfey told Mr Dillon.
Mr Clarke, for the plaintiffs, told the judge that the defendants were “forever moving the goalposts” in the case and he said it was “entirely satisfactory” for Mr Dillon “to stand up in court and make reference to harassment and things like that which implies something of my clients.”
Mr Justice Sanfey ordered Cassidys’ solicitor Mr Dillon to comply with discovery by 5pm on the day of the hearing, Monday, March 10.
“You have all the protections that a court is prepared to give you in these circumstances.” “You’re not entitled, after months and months, to hold up the issue of discovery a week after you said that you would furnish the discovery. That discovery has to be furnished by 5pm today [March 10],” he ruled.
Mr Dillon replied: “That will be done, Judge.”
Mr Justice Sanfey awarded the costs of the day to the plaintiffs and said he wouldn’t grant a stay in relation to the costs order.