(a) The issues in the proceedings
59 In determining in the present proceedings whether the requests made by the plaintiff are both requests and reasonable requests within the meaning of ss.166 and 167 of the Act, the court is entitled and indeed should, in my opinion, consider whether and if so how they relate to a previous representation(s) or to the authenticity, identity or admissibility of a document(s) or thing(s). In some circumstances it is possible to envisage that the issue of the reasonableness of a request may also require consideration of matters such as the manner and form of a request including its specificity or lack of specificity.
60 In the present case, the request made on behalf of the plaintiff on 23 May 2005 was specific in its terms and it identified particular documentation, including that said to contain specified previous representations.
61 It was contended by senior counsel on behalf of Trimcoll, Mr. A. Robertson, SC., that the request was not a reasonable one, inter alia, upon the basis that it was not shown to relate to an issue or issues defined by the pleadings. In order to deal with this contention, it is necessary to say something briefly about the pleadings.
62 The penalties imposed are said to be referrable to liability arising from the alleged failures of Trimcoll to deduct amounts from prescribed payments as required by the provisions of s.221YHDA(1) (see paragraph 4 of the default statement of claim). Although not pleaded as an issue, it was contended in submissions on behalf of the plaintiff that the payments in question were made under contracts for the performance of work, in circumstances where no payee declarations made to the defendant were in force, thus requiring the defendant to deduct the non-declaration percentage of the payments (paragraph 1 of the plaintiff's written submissions in reply).
63 Trimcoll's Notice of Grounds of Defence includes only one affirmative defence to which I have previously referred, namely, that pleaded in paragraph 6 which raises the contention, in essence, that it was not obliged to make deductions from payments made by it under contracts for the performance of work because each of the named third party payees were payees who became entitled to receive prescribed payments from the defendant as an eligible paying authority and which, before the initial payment was made, had been given payee declaration forms completed and signed by the respective payees to it stating in each case a declaration exemption certificate number.
64 Mr. Robertson, SC. developed the argument upon the basis that, in essence, what the plaintiff seeks to do is to go behind documents such as LOG1, LOG2 and LOG3 and assert that they do not relate to what Mr. McGovern, SC., on behalf of the plaintiff, referred to as genuine transactions.
65 The nature of the factual issue which the plaintiff seeks to rely upon in answer to the defence of Trimcoll does not appear from the pleadings. It is plain in my view that a document or previous representation referred to in s.167 must, in order to justify itself as a request under s.167, in some way relate to a matter in issue in the proceedings in question. There is a necessity, accordingly, in the present case to identify the matter or matters in issue to which the plaintiff's requests relates. That "matter", in my opinion, includes a previous representation(s) contained within relevant classes of documents. I will elaborate on this point below.
66 The plaintiff's request essentially relates to two classes of documents. The first concern payee declarations, copies of which are exhibited to Mr. O'Gorman's affidavits. They contain specific information supplied by the payee and Trimcoll as earlier discussed. The second concerned invoices by payee entities addressed to Trimcoll which are also exhibited to his affidavits. In relation to these two classes of documents, Mr. McGovern, SC. in submissions (12 September 2005 at p.8) stated:-
"The central issue is whether or not payments which were made by the defendant were in respect of a genuine sub-contracting services provided by particular companies which were the payee entities. The further question is whether or not the named particular companies were providing actual and genuine contracting services or whether the actual services were provided by third party contractors, whether named particular entities were bodgie entities, as referred to in the Commissioner's statement."
67 Mr. McGovern indicated that the Deputy Commissioner's case in relation to Trimcoll's reliance in its defence upon payee declarations and invoices is sought to be challenged on two bases.
68 The first, that there was said to be an arrangement with what were termed "bodgie companies". Trimcoll's contention that sub-contracting entities with which it was dealing had provided nil variation certificates and that it was entitled to rely upon such certificates and not make any deductions at all, is challenged by the plaintiff upon the basis that documents including, in particular, invoices provided to Trimcoll, do not reflect the true contracting arrangements and the monies paid under or in respect of them. In this respect, the argument for the Deputy Commissioner was expressed as follows:-
"The substance of the Deputy Commissioner's case suing to recover penalties is that the amounts paid in respect of which the defendant should have made prescribed payment deductions, were payments to so-called (and this will appear in the materials) 'bodgie' hire companies. In other words, bodgie companies were companies that obtained variation certificates to nil and were companies that provided things such as, in this instance, the defendant with invoices showing services were provided such as labour or plant hire where such services were not provided but the mechanism enabled the payer companies to absorb the payment of cash wages to what I might refer to as its natural sub-contractors" (transcript 12 September 2005 at p.3).
69 Accordingly, on this basis, it was contended on behalf of the plaintiff there is a question as to whether or not the invoices and payee declarations relied upon by Trimcoll were manifestations of or were related to actual or genuine business dealings. Mr. McGovern, in his written submissions in this respect, further stated:-
"The Deputy Commissioner will allege that the true contracting services were performed by other entities and not by the entities that provided the invoices. The Deputy Commissioner will allege that the invoices do not accurately record business transactions that actually occurred and that the actual transactions occurred between the defendant and third parties." (written submissions 15 September 2005, paragraph 6)
70 The second basis relied upon in support of the requests made related to the authenticity or admissibility of each document, the contention being that each of these was in issue. In this respect, it was argued on behalf of the plaintiff that the authenticity of the document involves the establishment of the genuineness of each of them, that is to say, whether or not the documents have their supposed character and are not shams or facades (plaintiff's written submissions, paragraph 14).