The High Court recently considered a discovery application in litigation involving two competing companies.

The motion for discovery was brought by Trugas, the defendant to trademark infringement and passing off proceedings. In the main proceedings, Flogas Ireland Limited, represented by William Fry, alleges that Trugas used its gas cylinders in circumstances that amounted to infringement of its registered trademarks and passing off.

A party seeking discovery is required to provide specific reasons for each category of documentation sought, focusing on the necessity and relevance of the information to the case. It is not acceptable to carry out a mere fishing exercise.

Trugas sought discovery of a wide range of documentation, including documentation which contained commercially sensitive information. Flogas argued that the court should have regard to the fact that the parties are competitors and that as such it should not be compelled to disclose such information.

Finding in favour of Flogas, the judge emphasised that where confidential information is sought, the court should exercise special care to ensure that a party is not given free access to it without satisfying the court that there is some basis on which the information is likely to be relevant and necessary.

The matter may be of interest to companies involved in litigation with a competitor, particularly where commercially sensitive information is at stake in discovery proceedings.

Contributed by Carol Plunkett