Hayes solicitors acts in the case of Tobin v Minister for Defence, in which a significant judgment was delivered by the Court of Appeal last year which made wide ranging changes governing discovery applications involving extensive documentation.
The plaintiff sought 15 categories of documents which were wide ranging in nature and involved documents created up to 30 years previously. That documentation was likely to be extensive and involve significant work in order to provide discovery. The Court of Appeal had decided that “[i]n cases where the discovery sought is likely to be extensive, no such order should be made unless all other avenues are exhausted and these have been shown to be inadequate”.
The Supreme Court has now delivered judgment (available here) in an appeal from that decision, which will govern all discovery practice in Ireland in the future. This decision will have important consequences for all civil litigation.
Supreme Court Decision
In delivering its judgment the Supreme Court provided the following guidance in relation to discovery applications which may involve a large amount of documentation:-
- The Supreme Court recognised that the cost of the discovery process can impact on access to litigation – discovery obligations may amount to up to 50% of the total cost of a case. Whilst there are obvious benefits which arise from the availability of the discovery process, there is also a danger in pursuing “perfect justice” by requiring expansive discovery, with the result that costs soar.
- Similar considerations may arise where discovery of confidential material is sought – the court should only order discovery where it becomes clear that the interests of justice in bringing about a fair result of the proceedings require such an order to be made.
- In relation to the criteria governing discovery applications, at the level of principle, the key criteria remain those of relevance and necessity. However, there has been much greater scrutiny of the issue of necessity in recent times and it is now necessary to move away from the traditional assumption that if documents were relevant they will almost inevitably also be necessary. Where there are other effective means of establishing the truth, documents may not be necessary even if relevant, particularly where the cost of making discovery will be significant.
- If it can be established that providing the discovery in question would be particularly burdensome, then a court must weigh that in the balance in deciding whether the discovery is truly necessary. The court should also consider:-
- The extent of the burden which compliance is likely to place on the party concerned;
- The extent to which it might be expected that the documentation concerned will play a reasonably important role in the proper resolution of proceedings;
- Importantly, the extent to which there may be other means of achieving the same end at a reduced cost.
- Where relevant postponement of any requirement to disclose confidential documentation may also come into play.
- It can properly be said that access to justice has been impaired even where it cannot be demonstrated that a relevant party could not afford the burden of making full discovery - a party which will be required to expend a great deal of money in making discovery may be inhibited in its ability to properly conduct litigation even if it cannot be said that it absolutely does not have the money to do so. Both plaintiffs and defendants alike may be inhibited in their ability to properly deal with litigation by discovery costs.
- In terms of procedure in dealing with extensive discovery requests, the party who receives such a request and believes that the discovery will be over burdensome must set that out in its response to the discovery request in some reasonable detail. It should set out why it believe s that ‘full’ discovery should not be ordered and suggest any alternative means through which the interests of justice may be met. Where it believes that discovery of documents whose relevance has been established is not necessary, it should seek to demonstrate this. If that argument is fact-based evidence should be gathered to establish this and where it is based on legal argument, the requested party should set out the legal principles it relies upon. If the requested party believes that there is an alternative means of obtaining the material, such as interrogatories, it should suggest this.
Take Away Points
This judgment does not serve as an absolute bar to extensive discovery without first seeking that information through alternative means in the way that the Court of Appeal decision may have, but sets out a cascade test of factors to be considered. The Court may still consider the extent to which there may be other means of achieving the same end at a reduced cost and whether the documents sought will be reasonably important at trial.
This judgment introduces some changes to the procedure of dealing with discovery requests which it is important that litigants are aware of. A party who receives a discovery request must now address certain items in a written response to that request if it wishes to raise those in contesting the discovery sought. In order to do this, parties should place emphasis on gathering evidence of the logistical issues, burden and expense which the discovery would involve. This should be done on receipt of the discovery request in question, and the results set out in correspondence to the other party.
Hayes Solicitors advise on all aspects of discovery in current litigation or potential litigation involving extensive documentation. For further information, please contact Robbie Slattery at firstname.lastname@example.org or your usual contact in Hayes Solicitors.
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About the Author
Robbie is a senior corporate and commercial associate solicitor. Robbie advises on items such as shareholder agreements, share purchase agreements, joint ventures, business sales and business purchases. Robbie also advises on commercial litigation with a particular focus on high value, multi-party litigation, for corporate clients, State entities, charities and private individuals, both on the Plaintiff and Defence side.