DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a dispute about costs. On 7 June 2001 the defendants’ solicitors issued and served a notice of non-party disclosure directed to Messrs McInnes Wilson, Solicitors, who are the respondents to the application. The respondents filed objections to disclosure on 14 June 2001, and the defendants applied for a decision about the objections by application filed on 21 June 2001. Ultimately that application was not pursued when it came before me on 8 August 2001, but there was an argument about the costs of the application. The respondents sought the costs on the basis that the application had been abandoned, but the defendants said that the application was not pursued because further documents had been disclosed by the respondents after it had been filed, so that the defendants were now content with the documents the respondents had produced, and did not seek any departure from the prima facie position indicated by r. 247(3), that each party to the application bear that party’s own costs.

Relevant rule

2. [2]
   Subrule 247(3) in its terms parallels the former r. 693(1) dealing with the costs of an application in the proceeding, which provided:

“Each party must pay the party’s own costs of an application in a proceeding, unless the court orders otherwise.”

The purpose of the latter rule was to abolish a former rule, that the costs of an action included the costs of successful applications by the party who was successful in the action, unless the costs of those applications had been dealt with separately. This rule was not very well known, and had become something of a trap for the unwary. In July 2000 subrule 693(1) was substituted in terms which abolished that rule in a way which avoided any inference that the starting point when deciding how the costs of an interlocutory application are to be dealt with is that prima facie each party is to pay that party’s own costs. In respect of interlocutory applications generally, the approach in r. 689, that costs follow the event unless the court considers another order is more appropriate, applies. At the same time that rule was amended to make explicit its application to an interlocutory application.

3. [3]
   Subrule 247(3) was not amended at the same time, but the omission to amend this subrule in these circumstances ought not to be treated as deliberate. Nevertheless, the fact that there is a specific provision in this rule dealing with this particular category of application suggests that it always was intended that the costs in relation to such applications should be dealt with on a different basis, and that the starting point ought to be that no order as to costs should be made. That is confirmed by the terms of subrule 247(4). The reason may well have been to reduce the risk that persons who were unhappy with a notice of non-party disclosure might otherwise be deterred from taking an objection if they faced the prospect of an adverse costs order on the application, if it turned out that any of the documents to which objection was taken ought to have been disclosed.

4. [4]
   The Uniform Civil Procedure Rules introduced a different regime about non-party disclosure compared with the mechanism set out in O. 40 r. 38A-38F, under which a person served with a writ of non-party discovery had to comply with it or make the application set aside or have it varied: r. 38C. This was seen as placing too much pressure on a person served with such a writ, so that under the Uniform Civil Procedure Rules the person served with the equivalent notice of non-party disclosure merely has to file a notice of objection, and it is then a matter for the party who issued the notice to make the application, if that party wants to pursue the matter^[1]. It was in this context that a rule that prima facie costs are to be borne by each party to that application can in my opinion be seen as a further safeguard to a person who has been served with a notice of non-party disclosure and is unhappy about it. The importance of such safeguards is that otherwise there is a serious risk that on occasions the non-party disclosure mechanism may be used in a way which is oppressive, and because of the recognition that people who are not parties to a dispute in court should not be inconvenienced by that dispute any more than is necessary.

5. [5]
   In order to assess the position here, it is appropriate to say something about the nature of the plaintiff’s claim, and the course of the dispute between the defendant/applicant and the respondents.

The plaintiff’s claim

6. [6]
   By claim filed on 27 October 2000, the plaintiff claimed $250,000 damages for personal injury alleged to have been suffered by him when the first defendant, who was a front seat passenger in a motor vehicle stopped in a line of traffic in a lane next to the curb, opened the front passenger side door. The plaintiff, who was riding a bicycle and had been in the process of overtaking that vehicle on its left, collided with the door and suffered injury. It was alleged that this collision was caused by the negligence of the first defendant. In a defence filed with a notice of intention to defend on 7 March 2001, the defendants accepted that there was negligence on the part of the first defendant, but alleged that there was also contributory negligence on the part of the plaintiff. Liability remains in issue.

7. [7]
   The statement of claim alleged that the plaintiff as a result of the collision suffered bruising to the right shoulder, bruising to the pectoral muscle of the right arm, laceration to the right shoulder, injury to the cervical spine, injury to the thoracic spine, injury to both wrists and thumbs, a grazed left elbow, a graze to the right thumb and nervous shock. It was further alleged that the plaintiff, as a result, required extensive medical treatment (extending even as far as suturing), had suffered an impairment of earning capacity, and had required domestic and quasi-nursing assistance.

8. [8]
   The plaintiff’s solicitors served a statement of loss and damage dated 7 February 2001, even before the notice of intention to defend was filed. It appears from that document that at the time of the accident the plaintiff was a first year articled clerk employed by the respondents, who were the solicitors acting for the plaintiff at the time when the claim was filed^[2]. At the date of the statement of loss and damage the plaintiff remained an articled clerk employed by the respondents, although on March 2000 his net weekly earnings had increased. The statement also revealed that for a month or so after the accident the plaintiff had continued to work as a company law tutor at Griffith University, and from February to June 2000 had convened the Law of Finance Course at the School of Accounting, Banking and Finance at that university. He reverted to company law tutor in July 2000.

9. [9]
   It was not alleged in the statement of loss and damage that the plaintiff had suffered any past economic loss at the time, but it was alleged that he had suffered a loss of earning capacity for the future. It was alleged that as a result of the plaintiff’s injury he has been left with a 5-10% permanent impairment of the cervical spine, and a 5-10% impairment of the right arm, and it was alleged that this had impacted on his capacity to earn income as a solicitor. The document alleged that prior to this accident the plaintiff had demonstrated a strong foundation upon which to achieve the highest standards and earnings in the legal profession. The statement spoke, with some corroborative detail, of his “impeccable academic qualifications”, his “outstanding social skills”, “super intellect”, and “well rounded personality”^[3]. It is alleged that “In the legal fraternity success and business is achieved through the culmination of intellect, personality and business ability”^[4].

10. [10]
    It was alleged that the injury had prevented the plaintiff from devoting himself to his work as an articled clerk as he had previously and this had disadvantaged him in an environment where clerks were judged on effort and time devoted to work^[5]. His injuries interfered with his ability to engage in prolonged sitting in front of a computer screen, and reading, and curtailed his ability to work longer hours. It was also alleged that disclosing his disability would impair his prospects of employment, and his inability to work longer than standard hours would interfere with his receiving a pay increase on a six monthly salary review. It was alleged that this would impact adversely on the plaintiff’s prospects of promotion, said to depend upon “total commitment, strong billable hours, hard work and profitability”:p. 9. Elsewhere it was alleged that the plaintiff had lost the opportunity of owning his own business, or obtaining equity in a practice: p. 16. It was alleged that the plaintiff stood to lose income in the future within the range of $400,000-$750,000^[6] because “the legal profession offers excellent compensation to those who deserve it through their intellect and their commitment”: p. 9. A reference was also made to an impaired capacity to work as a part time academic, but it was not alleged that academia offered excellent compensation to anyone.

11. [11]
    A medical report from Dr. White, an orthopaedic surgeon, dated 13 July 2000 supported the proposition that there is a permanent impairment in the neck and shoulder of the order alleged in the statement of loss and damage. Dr. Todman, an neurologist, in a report dated 20 October 2000 also assessed a 10% disability in respect of the neck, and did not disagree with the assessment of Dr. White in relation to the shoulder. On the other hand, Dr. Martin, in a report to the defendants’ solicitors dated 2 May 2001, thought that there was no residual disability and that there had been no effect on his employment. There are some discrepancies between the reports; the report of Dr. White notes a complaint of an inability to undertake usual swimming training, and an inability to resume triathalon training, but according to Dr. Martin the plaintiff competed in the swimming leg at the Mooloolaba Triathalon in May 2000, and had resumed cycling to work at about the beginning of 2001. There were still said to be some restriction in the recreational activities, but Dr. Martin described him as a well built, fit looking male exhibiting normal posture and bodily movements. It may be of course that the plaintiff’s condition has significantly improved since he saw Dr. White.

12. [12]
    The plaintiff’s solicitors have disclosed to the defendants’ solicitors a report by accountants seeking to quantify the plaintiff’s economic loss. On the basis of various assumptions, calculations are made of economic loss, including loss of superannuation entitlements, which range from $372,563 to $754,319. The assumptions include that as a result of the plaintiff’s injuries he would never advance beyond the position of an employed solicitor, whereas he would otherwise have achieved a position of salaried partner, or equity partner. There were also assumptions based on the level of remuneration applicable for various positions, which are referred to in the report. The report is essentially an exercise in calculation, and the final figures produced are only relevant to the extent that the assumptions made are appropriate.

Progress of the dispute concerning disclosure

13. [13]
    On 29 March 2001, the defendants’ solicitors wrote to the plaintiff’s solicitors seeking disclosure of various records, apparently on reliance of the disclosure provisions in the Motor Accident Insurance Act. At that time the defendants’ solicitors sought disclosure of time sheets and other records of hours of work carried out by the plaintiff during the whole period of his time as an articled clerk, but not seeking any confidential client information, just statistical information. The defendants’ solicitors also sought details of earnings of associate partners and equity partners, but again with the qualification that no confidential client information or information subject to legal professional privilege was sought. On 18 April 2001 the respondents replied saying that the plaintiff was now employed as a solicitor following his admission in March, but there was “no document confirming his appointment as a solicitor that can be disclosed”. It was also stated that the firm did not have time sheets and that the only information about hours recorded was a year by year printout of total chargeable time. The respondents were prepared to provide this, but said it was not possible to provide any information other than total chargeable time on the yearly basis. The request for information about the incomes of other people was rejected as irrelevant, since the plaintiff’s case did not depend on the proposition that his career path lay solely within that firm.

14. [14]
    On 8 May 2001, the defendants’ solicitors sought a copy of any computerised documentation that the respondents could provide, in relation to the whole of the period of the plaintiff’s employment. The respondents was queried as to how this information came to be made up, and as to why the amount of work done from week to week or month to month was not available. It was also pointed out that the report of the accountants, to which the respondents had referred, was of limited use because it was based on assumptions, which of course was correct. Information was sought as to the salary change which had occurred as a result of the plaintiff’s employment as a solicitor.

15. [15]
    On 18 May 2001 an application was filed seeking an order that the proceeding be referred to case appraisal. That application came on before another judge on 29 May 2001 and was dismissed.

16. [16]
    On 7 June 2001 the defendants’ solicitors sent a notice of non-party disclosure on the respondents seeking documents in the following categories:

1. “1.
   All documents disclosing the salary, wages, and other remuneration of articled clerks, associates, and salaried partners at the plaintiff’s place of employment.

2. Time sheets and all other performance related records of the plaintiff, both before and after the accident.
3. Time sheets and all other performance related records of the articled clerks, solicitors, associates, and salaried partners employed in the plaintiff’s place of employ.
4. Records of the remuneration of all articled clerks, solicitors, associates and salaried partners at the plaintiff’s place of employ.
5. Records of all six monthly, yearly and other performance and like reviews of the plaintiff.
6. Records of all six monthly, yearly, and other performance and like reviews of the articled clerks, solicitors, associates and salaried partners employed in the place of employ of the plaintiff.
7. Sick leave records of the plaintiff for the period since 5 October 1999”.

17. [17]
    The respondents filed objections to disclosure on 14 June 2001. The respondents did not object to producing documents in categories 5 and 7. Objection was taken to the production of documents in category 2 “to the extent that those documents contain personal and confidential information about the affairs of clients of McInnes Wilson and are the subject of legal professional privilege”^[7]. The respondents objected to producing the documents in Categories 1, 4 and 6 on grounds which are set out at length, but which are essentially that the documents were not directly relevant to an allegation in issue, the request for disclosure was oppressive and vexatious, the notice was an abuse of process because it was issued for the ulterior purpose of applying pressure to the plaintiff, the request was too wide in scope, the information concerned was highly sensitive, personal and confidential information, which the respondents had promised the individuals concerned it would be confidential, the disclosure had the potential to create disharmony between the professional staff and the respondents, disrupt the morale of the practice, and may lead to resignations, and the work involved in collating and disclose the documents was so extensive as to be oppressive. The respondents objected to producing the documents in categories 3 and 6 on the grounds that they were not directly relevant to an allegation in issue in the proceedings, it was oppressive and vexatious to require the disclosure, the description of the documents lacked particularity and was too broad and oppressive, the volume of material required to be collated and disclosed was such that the request was oppressive, it was an abuse of process because it was made for the collateral purpose of applying pressure on the plaintiff, and the documents were of a highly confidential and personally sensitive nature and contained information which was the subject of legal professional privilege.

18. [18]
    The notice of objection was forwarded under cover of a letter advising that inspection of the documents that the respondents were prepared to disclose would occur on 19 June, and that the respondents were proposing in the event of an application to the court to file affidavits on behalf of all 43 of its professional staff objecting to the disclosure of the information in question^[8]. On 19 June 2001 an articled clerk attended to inspect the documents produced, but the only documents produced were sick leave records for three days.

19. [19]
    The new solicitors for the plaintiff provided a supplementary (in effect an updated) statement of loss and damage dated 2 July 2001, which still made no claim for past economic loss, disclosed that on 19 March 2001 the plaintiff was admitted as a solicitor and was in employment with the respondents on a two year contract at a nominated rate, but otherwise continued to make the claims made in the earlier documentation, although the amount claimed for future economic loss had been reduced to $175,000. The extent of this reduction throws some light on the realism of the earlier claim, and on the offer of settlement made on 29 January 2001, by the respondents, to accept an amount which was much more than this, and more than the limit of jurisdiction of this court. The respondents’ letter of offer to the second defendant included the statement:

“I do not wish to be disrespectful, but this claim will be big”.

In the light of the material I have seen, the defendants were acting reasonably both in seeking to investigate thoroughly this claim, and in being sceptical about this assertion.

20. [20]
    On 10 July 2001, the defendants’ solicitors wrote to the respondents seeking to settle or at least narrow the issues in relation to the notice of non-party disclosure. In that letter it was pointed out that the proposition that the plaintiff was disadvantaged in his employment with the respondents could only be properly assessed by comparing his remuneration with the remuneration of other professional staff. It was noted that the plaintiff’s new solicitors had disclosed a copy of the written employment agreement between the plaintiff and the respondents (the document which on 18 April 2001 the respondents said did not exist; perhaps it just did not exist then). The defendants’ solicitors pointed out:

“If there are similar agreements with other professional staff of the kind which we have listed, then it should not be too difficult to satisfy the request in category 1 by nominating the person as, for example, articled clerk number 1, with salary movements over time. The time in question could go back to the time when the plaintiff was first employed by your firm. What our client wishes to see is relative to other articled clerks (who need not be named) how his salary has moved since he commenced employment as an articled clerk and more lately as a solicitor. Our client and ourselves are quite mindful of the sensitivity and confidentiality of salary information concerning your professional staff. Our client and ourselves wish to give that consideration as much respect as possible, but at the same time our client needs sufficient information from which it can properly prepare its case to deal with the allegation of disadvantage in the work environment of your firm. … We will be quite happy to see those contracts with the identify of the persons concerned deleted.”

In relation to category 2 the point was made that it was essential for preparation of the defendant’s case to see copies of the plaintiff’s time sheets because those time sheets would demonstrate any recorded reduction in hours. As to category 3, it was submitted that the time sheets of others in comparable positions had to be assessed in order to assess the plaintiff’s claim that he was disadvantaged in his current employment. The other categories are not dealt with in detail but the defendants’ solicitors offered to meet with a view to arriving at a compromise and indicated a willingness to protect the interests of professional staff of the confidentiality of the respondents’ work. This did not produce a response at that time.

21. [21]
    On 13 July 2001 an affidavit of the practice chairman of the respondents was filed. Reference was made to the large number of documents which could potentially fall within some of the categories sought, and the difficult and time consuming work required to identify and locate all the relevant documents, and make them available. This does emphasise that the original identification of some of the categories in the notice of non-party disclosure was too broad, although it does not reflect the attempt made on 10 July by the defendants’ solicitors to narrow the issues, and in the process narrow the scope of the disclosure required. He also swore that the terms of contracts negotiated with professional employees at the respondents were the subject of an undertaking of confidentiality which was generally incorporated in the employment contract itself.

22. [22]
    He continued:

“I do not like employees informing others of the terms of any contract they have negotiated. It can lead to unrest and unsettle the practice as well as resentment and destabilisation amongst my professional staff. Similarly, I appreciate myself as a once employed solicitor that what an individual earns is highly sensitive and so personal in nature as to warrant its complete confidentiality. As is the case in any business, different individuals are paid different amounts of money and are awarded differently depending upon their years of expertise, profitability, educational background and capacity to market and promote the practice”.

He went on to express concern that there would be dire consequences if the information in the documents became public knowledge. I am prepared to accept this evidence, but it seems to me that these matters do not properly address the issue of whether details about the remuneration of other comparable employees could be provided anonymously, as suggested in the earlier letter from the defendants’ solicitors.

23. [23]
    Attached to the report of the accountants referred to earlier is a document entitled “The 2000 Annual Law Staff Money Report” prepared by Law Staff from information supplied to them as a result of four weeks intensive research calculated to capture a considerable portion of the market. It is apparent from the content of this report that information as to the levels of remuneration of, among other things, articled clerks and employed solicitors, has been made available, presumably anonymously, to this organisation, although it is not clear whether this was provided by the firms or by their employees. In either case, it demonstrates at least a common practice in the profession for this sort of information to be provided anonymously for the purposes of this sort of research. It also demonstrates that some standard of comparison is available to people in this position to assess their own income level.

24. [24]
    Apart from this consideration, it does seem to me that the various submissions put forward on behalf of the defendants, at least in the letter of 10 July 2001, have a good deal of force. If the plaintiff’s performance has fallen off since the accident, one would expect that to show up in his recording of billable hours. Conversely, if the plaintiff’s recording of billable hours has not changed significantly since the accident, that would suggest that the accident has not in fact impacted on his earning capacity (even if continuing to work in this way since the accident has been productive of some pain to him). To some extent it should be possible to track this by looking at the history of the plaintiff’s billable hours, but a better appreciation of the position would be obtained by comparing the plaintiff’s pattern with the patterns obtained from other comparable employees, in order to indicate the sort of level which would be regarded as typical or characteristic, and which therefore an employer might well expect.

25. [25]
    If the plaintiff is doing as well as he ever did, but other comparable employees are doing better, that suggests some interference in the plaintiff’s ability to do the work expected of him. Conversely, if there has been a decline in the plaintiff’s billable hours since the accident, but other comparable employees have suffered a similar decline, that would indicate that the decline in the plaintiff’s hours was not associated with his injury, but with the work levels in the firm generally. In addition, the plaintiff’s level of remuneration is not something which can sensibly be assessed in isolation, particularly if the plaintiff is saying (as he is in his statement of loss and damage) that at some point in the future he is going to be earning less than he would have been earning had it not been for these injuries. The relevance of these considerations does not depend on how the plaintiff seeks to prove his case; I reject the respondents’ argument that the documents were irrelevant because the plaintiff was not seeking to prove economic loss by showing disadvantage in his current employment.

26. [26]
    It may be of course that examination of this sort of material will not reveal that the plaintiff has been adversely affected in his employment, either in terms of the work that he can put through, or in terms of the earnings he had received, suggesting that there was little if any support for the claim for economic loss. That does not make it irrelevant. It may be that it is unrealistic and inappropriate to do a large amount of work to investigate what is in reality only a modest loss, but the difficulty here is that the plaintiff has at all times been claiming that the injuries suffered by him have had a substantial effect on at least his future earning capacity. In the circumstances the respondents can hardly complain if the defendants treat this claim as big.

27. [27]
    In circumstances where such a claim is made, but where there is no indication of any adverse impact yet, it is understandable that the defendants would be concerned to scrutinise in detail the a fairly sweeping proposition which has been alleged on behalf of the plaintiff, or assumed by the accountants advising him. The material that I have seen, in my opinion, provides a reasonable basis for scepticism about some of the claims that have been advanced on behalf of the plaintiff.

28. [28]
    In relation to category 2, it was said that the respondents do not have time sheets per se, although the affidavit refers to what are described as “computerised time sheets”. Since “document” includes a document stored on a computer disc, this is not a relevant distinction and the circumstance that the time recording mechanism is computerised ought to facilitate making the records available in a form which does not breach client confidentiality (as they ultimately were). There is no reason why there should be any disclosure or even identification of clients in these circumstances, and therefore no reason for concern about the impact of such disclosure on the respondents.

29. [29]
    In addition, the affidavit treats disclosure to the defendants as disclosure to the world at large. But all that would be involved in the immediate sense would be publication to the defendants, and they would be subject to the ordinary implied undertaking not to use material for any purpose other than the conduct of the present action: Central Queensland Cement Pty Ltd v. Hardy [1989] 2 Qd.R. 509. If necessary, orders could be made limiting the extent of disclosure, even for the purpose of the action, for example, to identified individuals who were acting as lawyers for the defendants, and perhaps a particular senior officer of the second defendant:  compare Ex parte Fielder Gillespie Ltd [1984] 2 Qd.R. 339 at 341.

30. [30]
    The application came on on 16 July 2001 but was adjourned by consent to 8 August, apparently because it was not going to be reached that day. On 19 July the defendants’ solicitors again raised a number of matters, including a proposal to confer to work out a practical compromise. On 23 July the respondents expressed a willingness to talk, and there was a further meeting on or before 30 July, the result of which certain documents were made available. These included a job description document, some sick leave records, the “personnel file” of the plaintiff, and a number of computer sheets relevant to the billable hours generated by the plaintiff. The job description document is dated July 2001, and gives only limited information about some of the tasks expected of the plaintiff.

31. [31]
    Included in the documents on the personnel file is a copy of an email sent by the practice chairman of the respondents to the plaintiff dated 21 March 2001 which sets out the terms of the remuneration of the plaintiff, at least for the period up to June 2002. It indicates that Mr. Tully intended that these terms be reflected in a contract of employment^[9]. In the light of this, the statement in the letter from the respondents dated 18 April 2001 that “there is no document concerning his appointment as a solicitor that can be disclosed to you” was, at best, economical with the truth. The email comments that the level of remuneration to the plaintiff “as a first year solicitor is a joke! So get on your knees and thank me …”. The “2000 Annual Law Staff Money Report” referred to earlier suggests that the remuneration level of the plaintiff was higher than was usual for a first year solicitor in Brisbane. There was also on the file a letter of 20 April 1998 from the respondents to the plaintiff setting out the terms of his employment as an articled clerk, which had been signed as acceptance by the plaintiff.

32. [32]
    There were various printouts from computers setting out details about billable hours, including a document described as a “roll call summary” and one document which appears to set out details of chargeable and non-chargeable hours on a day to day basis, at least from 1 February 2001. This is difficult to reconcile with the earlier assertion that such material could not be provided. The covering letter however noted that during extensive periods of employment of the plaintiff he was not required to record his time at all because of the nature of the work that he was undertaking. This information suggests that in fact details of the billing records are not likely in practice to be as useful as might have been expected on my earlier analysis.

33. [33]
    The respondents in an affidavit sworn on 8 August 2001 deposed to the personnel file which was provided on 30 July 2001 having been disclosed earlier to a claims officer with the second defendant on 29 January 2001, prior to proceedings being commenced (the claim had been filed however in October 2000). It was also said that these documents, and the computer sheets which were produced, did not fall into any of the categories of documents sought in the schedule to the notice of non-party disclosure. In my opinion, however, some of the documents at least on the personnel file fall into category 1 or category 4 in that schedule, and the computer sheets fall within category 2. It also indicated that on 1 August advice was received that the defendants would not be pursuing further the application for non-party disclosure.

34. [34]
    On 2 August the defendants’ solicitors advised the respondents by facsimile that they would not be proceeding further with the notice on the ground that it would be unlikely that that would cause the identification of any other documents, and that all documents which should be disclosed had been disclosed. An offer was made to deal with the costs according to the rules.

Collateral purpose

35. [35]
    In a set of written submissions prepared for use on 16 July, and exchanged on that date (Exhibit 3) the respondents submitted that in view of the absence of, or at best, the tenuous nature of, the “direct relevance” of the type of documents sought by the notice, the breadth and lack of particularity of the notice as described, the knowledge of the defendant that the plaintiff remains employed by the respondents, the knowledge of the defendant that the respondents had once acted for the plaintiff in the plaintiff’s proceedings, and the obvious personal and commercial sensitivity of, and in some cases privileged nature of, the documents sought, it was open to the court to infer that the notice of non-party disclosure was being pursued for an improper purpose, namely to put pressure on the plaintiff to settle or alter his claim. That any improper purpose was involved was emphatically rejected in a further affidavit by the relevant solicitor for the defendants, and the relevant officer of the second defendant, both of which were filed on 7 August 2001. I have no reason to reject the evidence in those affidavits. Further, the basis for the invited inference in my opinion is not made out.

36. [36]
    I do not accept that the documents are not directly relevant. In so far as the plaintiff claims that his earning capacity has been adversely affected by his injuries, and that the injuries prevent the plaintiff from devoting himself to his tasks with the respondents as an articled clerk as he had before the accident (first statement of loss and damage at p. 8), evidence as to the plaintiff’s performance in his employment with the respondents is, in my opinion, directly relevant to that issue. For reasons given earlier, it also seems to me that a proper appreciation of the significance of the work that the plaintiff was doing at that firm really requires some comparison with the results being achieved, both in terms of remuneration and in terms of work load, by other comparable people. In this respect the respondents are in a special position because they are and were before the accident the employers of the plaintiff, and any deficiency in the plaintiff’s capacity for employment is only going to be detected by an examination of his work history within that employment, and some comparison between the plaintiff and another employees within that employment. How his remuneration level compares with that of, for example, a first year solicitor employed by the defendants’ solicitors is, in my opinion, much less relevant. There might be all sorts of different considerations which would make it difficult to draw a meaningful comparison between the position of an employed solicitor with one firm and an employed solicitor with another firm.

Analysis

37. [37]
    It is true that the categories of documents described in the notice were too wide, but the defendants had sought to address this by resiling from the full width of a number of the categories and had sought to narrow the issues. Further, it is clear that the defendants never sought disclosure of privileged material, and sought to address issues arising out of the personal and commercial sensitivity of some of the documents sought in a way which seems to me to have been constructive. In my opinion, there is no basis for drawing an inference that there was any improper purpose in pursuing this material, and in my opinion it was an over-reaction by the respondents to raise this issue.

Analysis

38. [38]
    Rule 247(4) requires that regard be given, when deciding whether to order otherwise under subrule (3) to the following circumstances:

1. (a)
   the merit of the objector’s objections;

2. (b)
   the public interest in the efficient and informed conduct of litigation;

3. (c)
   the public interest in not discouraging objections in good faith by those not a party to the litigation”.

In the present case, as to (a), in my opinion there was a good deal of merit in the objections that the categories in the original notice were too broad, so that the notice was oppressive. But most of the other objections were not particularly meritorious. I also thought that there was a lack of frankness on the part of the respondents as to just what documents they held. Indeed, to some extent that was  the case prior to the issue of the notice. I also note that, although the respondents agreed to release documents in category 5, it does not appear that any such documents have ever been provided. I thought that there were some objections which were properly taken, but that other objections were not proper objections, or raised issues which were then used by the respondents as an excuse not to produce anything, notwithstanding that the defendants manifested a willingness to work in a constructive way to overcome those difficulties. Indeed that is the particular feature of this whole dispute which impresses itself most on me:  the contrast between the intransigence of the respondents and the constructive and flexible approach adopted by the defendants and their solicitors.

39. [39]
    Consideration (b) is a feature which encourages the making of applications, so that relevant documents are disclosed and are made available for use in litigation. In the present case in a practical sense some additional documents were provided only after the application had been made, and some of these were of assistance; the defendants particularly rely on the email of 21 March 2001, which on its face is difficult to reconcile with the existence at that stage of any significant adverse impact on the plaintiff’s capacity effectively to carry out his work^[10]. Nevertheless, I think it is something of an exaggeration to say that once that document had been obtained it was unnecessary for the defendants to be concerned about further disclosure.

40. [40]
    Consideration (c) was, I think, intended to emphasise that the mere fact that, on the hearing of an application under r. 247, the documents are ordered to be produced was not to be taken as a sufficient reason in itself, for making a costs order against the non-party. It is, however, not a factor which particularly justifies vigorous defence of objections by a non-party to the point of intransigence. It is, in my opinion, a factor which was intended to make a court reluctant to make a costs order against a non-party, rather than particularly encouraging a court to make a costs order in favour of a non-party.

41. [41]
    This, in my opinion, is not a case where an application was made which was always hopeless and was subsequently abandoned, in a way which could be seen as some recognition that the application was not worth pursuing, and therefore ought never to have been made. Nevertheless, the fact that the application was abandoned is a factor which favours the respondents; if an application to a court is made and then abandoned, ordinarily the applicants would have to pay any costs incurred as a result of the application being made, unless there is some proper justification for the change. In view of the provisions of r. 247, this is not an approach which can be applied directly in the present case, but it is, in my opinion, still a relevant consideration. Ultimately the substantive application was not fully argued on its merits, but on the basis of what I have seen and such argument as I heard, I think it likely that had it been argued, there would have been some additional documents ordered to be produced, although subject to appropriate safeguards by way of undertakings and deletions to preserve confidentiality. It follows therefore that, in my opinion, there was some justification for making the application, and it does appear that some documents were provided after the application was made which had not been provided earlier.

42. [42]
    Nevertheless, I think it is reasonable to say that the most contentious issue was that relating to the level of remuneration of other employees, and in respect of that the respondents were ultimately able to persuade the defendants to abandon the application. In terms of overall success in the dispute which led to the application, it is fair to say that the respondents have been substantially successful.

43. [43]
    There are therefore considerations each way in relation to the question of costs. That circumstance, combined with the prima facie preference in the rules for the position that there be no order as to costs, ultimately lead me to the conclusion that that I should not depart from that position. That was the outcome contended for on behalf of the defendants, although they did submit that the costs of the hearing on 8 August should be paid by the respondents, because an offer to compromise the costs on that basis had been made on 2 August 2001. It follows that if the respondents had been prepared to accept that offer the costs involved on 8 August would have been avoided. I recognise the force of this argument, but do not consider that it is a conclusive consideration in view of the terms of r. 247(3) and (4). The protection offered by those subrules, particularly to non-parties, could be diluted if offers of this kind were made prior to the hearing of the application and then used as a basis for an order being made against the non-party for the costs of the day. Apart from this consideration, the balance of the other features to which I have referred is somewhat in favour of the respondents, but in my opinion not enough to displace the prima facie position indicated by subrule (3). This feature serves to even up the balance, or perhaps tilt it a little the other way, but still in my opinion not enough to displace the outcome preferred by the rule.

44. [44]
    There will therefore be no order as to the costs of the application filed 21 June 2001 which is dismissed.