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Further production motion dismissed as fishing expedition after discoveries.
In a professional negligence action against a chartered accounting firm arising from alleged failure to detect employee fraud, the plaintiff moved for further production of the defendant’s records after discoveries had already taken place.
The request relied on a new expert report asserting that a professional accountant required access to the complete set of documents and correspondence relating to the defendant’s engagements with the plaintiff from 2001 to 2009.
The court held that the requested production largely duplicated issues that could have been addressed on the earlier production motion and amounted to a fishing expedition.
The moving party failed to demonstrate a change in circumstances or identify specific deficiencies in the existing production.
The motion for further production was dismissed and costs were awarded to the responding party.
Successful respondent awarded $250,000 in partial indemnity costs, with deductions for excessive counsel attendance.
The successful respondent on an appeal sought costs on a partial indemnity basis.
The appellants argued the costs should be reduced due to the respondent's cross-appeal and the attendance of multiple counsel.
The Court of Appeal rejected the argument regarding the cross-appeal, finding it was a reasonable step to defend the trial result.
However, the Court agreed that the respondent should not be compensated for the attendance of four lawyers or for a prior motion.
Costs were fixed at $250,000 inclusive of disbursements and GST.
