18 07 2018 Insights Litigation & Dispute Resolution

Court of Appeal suggests a more restrictive approach to discovery

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By Ronan Geary
19 July, 2018

Facts of the case
The Court of Appeal per Hogan J. has issued a judgement in Tobin v The Minister for Defence & Ors1 which suggests a more restrictive approach to discovery. The case concerned a personal injuries claim against the Defence forces.

The Plaintiff claimed that he suffered from anxiety, depression and incidents of severe pain following a personal injury which interfere with his capacity to work. The Plaintiff sought fifteen categories of discovery to assist in proving his claim.

The Minister objected to a number of the discovery requests as they were overly burdensome and would not benefit the Plaintiff’s case. The requested documents went back over 28 years. It was not contended that in order to satisfy the Plaintiff’s request, 10 employees would be required to halt all other duties and spend approximately 220 hours locating and reviewing the relevant documents.

The High Court made orders in favour of the Plaintiff and requiring the Minister to provide the extensive discovery that the Plaintiff sought. The decision was appealed to the Court of Appeal.

Discovery requests
The Peruvian Guano2 case created the ‘relevance and necessity test’ which for many years was the test applied to assessing the reasonableness of discovery requests in Irish litigation. Under that test a party is entitled to any document relating to the matter which may be of a benefit of their case or the detriment of their opponents. Hogan J. pointed out that legal practice has changed dramatically since this ruling. With the advent of the photocopier, fax and email there is a vast amount of documentation in even the most simple of transactions.

He noted there have been attempts to reform the discovery procedure. General discovery orders have been prohibited since 1999. In CRH v. Framus3 the Supreme Court stressed the necessity for proportionality.

Court of Appeal judgement
Hogan J. was highly critical of the current discovery procedure. He did not suggest the Plaintiff was dishonest or abusing the system. Rather, he stated that the current practice was inhibiting the Courts and putting an unfair burden on the recipients of discovery requests.

In his decision Hogan J. stated that a party must exhaust all other avenues of investigation before subjecting the other party to a discovery request. He reiterated that interrogatories should be more widely used, echoing dicta of Kelly J. in Anglo Irish Bank Corporation Limited v Browne4 and Barniville J. in Dunnes Stores v McCann5. Interrogatories are a formal set of written questions submitted by one litigant and required to be answered by an opponent in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case. He also approved of the appropriate use of Notices to Admit Facts. If the party was unable to glean the necessary information from these avenues, then they could utilise a discovery request.

Six of the Plaintiff’s discovery requests were quashed as premature, accordingly the matter was remitted back to the High Court and the Plaintiff was encouraged to pursue alternative avenues such as interrogatories. Once these alternative methods were exhausted, then he would be permitted to seek further discovery.

Future of discovery requests
This decision is a useful step in reforming the troublesome and difficult discovery procedure. It is evident from Hogan J.’s strong language that the judiciary are exasperated by the current framework. It is obvious that the current method is causing severe issues in the Courts. It is possible that this ruling will alleviate some of this pressure. However, this is not the first time that the judiciary has attempted to reform the procedure. In Framus, McCann and Browne the Court attempted to restrict discovery requests. Despite this, parties still face extensive discovery requests which require a huge number of man hours to satisfy. Will Hogan J.’s decision change this? It is difficult to say. It may be that only legislative reform will bring about real change.

For more information on the content of this Insight contact:
Ronan Geary, Partner, ronan.geary@rdj.ie, +353 21 4802753

[1]Tobin v The Minister for Defence & Ors [2018] IECA 230
[2] Compagnie Financiere du Pacifique v Peruvian Guano Co 11 QBD 55
[3] CRH v. Framus [2004] IESC 25
[4] Anglo Irish Bank Corporation Limited v Browne [2011] IEHC 140
[5] Dunnes Stores v McCann [2018] IEHC 123

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