knowledge 14 March 2019 |

Inspection: A Useful Pre-Trial Litigation Tool

Inspection, which can in appropriate cases extend to sampling and testing, can be an important pre-trial tool to help clarify or narrow contentious factual issues.  However, the court will be careful not to allow unnecessary, unjustified or disproportionate intrusion into the opposing party’s property rights.  An order for inspection may be a necessary incident of the constitutional right of access to the courts, as it enables a litigant to present its case clearly, but this right must be balanced against competing rights of the opposing parties and of any affected third parties.

In Carlisle Mortgages Ltd v Heagney,¹ the plaintiff sought an order for inspection under Order 50, rule 4 of the Rules of the Superior Courts² in proceedings which sought possession of unregistered lands. An issue arose in the case about whether the mortgage deed sufficiently identified the lands which were the subject of the mortgage. The application was allowed, principally as the inspection sought related to the central disputed issue in the proceedings, and it was therefore necessary; the court made an order it considered proportionate, directing the defendant to allow the plaintiff and/or its nominated expert to enter on the lands and to carry out an inspection and survey.

Applicable principles

The principles governing applications for inspection were identified by Costello J in James Elliott Construction Ltd v Lagan:³ 

• The court may order that a party may take samples of the property of another party to proceedings which may be necessary or expedient for the purpose of obtaining full information or evidence.
• The power must be viewed in the context of a party’s constitutional right of access to the courts.⁴
• The court must ensure that the litigant will have facilities to present his case to the court; this includes all the information the litigant wishes to present, either in support of his own case, or to undermine that of his opponent.
• The right to an order for inspection or the taking of samples is not dependent on the strength of the case of the party seeking the order.
• Inspection, or the ordering of the taking of samples, should be facilitated if it can be achieved while at the same time protecting the interests of the opposing party; the interests of an opposing party taken into account are those relating to that party’s rights as an owner or occupier of property.
• The proposed inspection or taking of samples must be shown to be necessary or expedient by reference to the issues in the case.
• The inspection or sampling ordered should be limited to that which the party seeking the order has shown to be necessary or expedient to his own case or his defence of his opponent’s case.

Objections to the application

The court considered three principal arguments against the application: first, that it was unnecessary because if the mortgage did not reflect what was actually agreed, then a claim for rectification of the mortgage deed was necessary, and none was included in the proceedings; second, that that the applicant was guilty of delay and third, that the mortgage itself did not confer a power to inspect.

The court accepted that the claim made was not that the mortgage did not accurately reflect the lands agreed to be charged, but rather that, properly interpreted together, the mortgage deed and map did. Similarly to the question of strength of the moving party’s case, alleged delay was irrelevant: if the defendant objected on grounds of delay, his proper course was to apply separately to strike out the proceedings for delay, which he had not done.  The court did not attach weight to the absence of a contractual power of inspection – plainly, had such a power been present, the application would have been unnecessary.

Necessity and proportionality

Having decided that inspection of the lands was necessary as it addressed the central issue, the court next concluded that an order for inspection would be proportionate, as the inspection sought was not invasive, involving only a survey, measurements and photographs, without taking physical samples or carrying out invasive works. However, to balance fully the defendant’s rights, the court invited submissions on whether any conditions should be attached to the order.

Comment

This judgment reminds us of the breadth of pre-trial procedural orders available to enable litigants to present their cases fully and effectively at trial and which can narrow down or remove issues from a case.  It also recapitulates the detailed principles applying to applications for inspection and the considerations of necessity and proportionality which inform the weighing of the applicant’s interest in obtaining the order against the potential intrusion on the responding party’s property or other rights.  Finally, it reflects that at the pre-trial stage, such balancing exercises will usually not involve any consideration of the relative merits of the respective parties’ cases.