Introduction 

Last year we highlighted the judicial encouragement for use of interrogatories instead of discovery as a way to reduce costs in litigation (see here).  Mr Justice Kelly has also made clear that one of the priorities of the Review of the Administration of Civil JusticeGroup is to comprehensively change the rules and procedures that apply to the discovery process.  Yet, in a recent decision (Tobin v Minister for Defence IESC 57) the Supreme Court has dampened the apparent enthusiasm from the lower courts for using alternative methods before seeking discovery. This article considers the Supreme Court decision and what principles can be distilled from the rejection of the Court of Appeal decision.

Court of Appeal strikes down aircraft mechanic’s discovery order

In Tobin v Minister for Defence IECA 230 the Court of Appeal in applying the existing court rules, made a potentially significant change to the law relating to discovery.  This was a personal injury claim against an employer (the Minister for Defence) where Mr. Tobin sought damages for being exposed to dangerous chemicals during his time as an aircraft mechanic. The High Court had ordered discovery of several categories (including identification of chemicals used at various times) against the defendant and this was appealed to the Court of Appeal.

Hogan J. delivered the judgment for the Court of Appeal and held that before a litigant may seek discovery of a category of documents “which is likely to be extensive”, the information which it is hoped will be elicited from the category must “in the first instance by means of interrogatories or, as the case might be, a notice to admit facts.

The Supreme Court overturned the ruling of the Court of Appeal and restored the order of the High Court. 

Supreme Court Decision

Importance of discovery

The Court addressed the importance of discovery in ensuring that the case presented by an opponent is not inconsistent with the documentation which that opponent possesses. Clarke CJ. was of the view that discovery plays a role in “keeping parties honest” and this provides a counterweight to the common perception that the vast majority of documents which are discovered do not find their way into the evidence.

The Supreme Court was also cognisant, as Fennelly J. noted in Ryanir plc. v Aer Rianta cpt. IESC 62, 4 IR 264 that there can be a danger in the over-pursuit of “perfect justice”; where the costs of litigation soar to the extent that they impose a barrier to access to justice.

Fundamental principles

The Court held that there were certain fundamental principles which can be discerned from the case law:

• The starting point should always be a consideration of what is “relevant”. If this cannot be demonstrated, then there is no basis for discovery. Relevance is always determined by reference to the pleadings, therefore an overbroad “kitchen sink” like approach to pleading your case or denial of all elements of a claim may result in large discovery.
• The default position is that if a document is relevant then it should be considered necessary. This is only a default position and it is capable of being displaced for numerous reasons. For example, if compliance with the discovery would be particularly burdensome a court will have to weigh a range of factors to decide if discovery is truly necessary – including the extent to which there may be other means of achieving the same end but at a reduced cost – the “proportionality test”.
• The initial burden of establishing both relevance and necessity fall on the requesting party once relevance is established – necessity is then prima facie established, and it is for the requested party to put forward reasons why the test of necessity has not been met – whether by the facts involved or by argument.
• The Court held that it is not for a requesting party to establish that they have exhausted all other procedures available to establish relevant facts before discovery can be sought.

Defendant had not shown discovery would be disproportionate burden

In relation to the discovery sought by Mr. Tobin the Supreme Court held that the assessment should have been whether the defendant had discharged the burden that the discovery would have been disproportionate having regard to the availability of interrogatories to Mr. Tobin. The Court found that the defendant had not discharged that burden (in fact the burden of discovery here fell far short of what would be normally required in commercial cases). 

Interrogatories would not have achieved saving of costs or time

Further in relation to interrogatories the Court held that in this type of case the use of interrogatories would not have achieved any great saving as it was not the type of case where someone would know all the answers to the questions – the defendant would have had to carry out research in order to enable proper answers.

Key Takeaways

A litigant seeking discovery is not under any obligation to exhaust other procedures before seeking discovery.  However, this case was not a commercial court case where the use of other procedures – such as interrogatories – may be more appropriate, particularly where there would not need to be significant research into obtaining proper answers.

While the Courts are mindful to minimise costs, the fundamental principles of discovery still apply – relevance and necessity – and it will be up to the party from whom discovery is requested to put forward reasons why documents are not necessary in every case where relevance is demonstrated.  

This case also serves as a warning to parties in litigation in relation to the pleading of your claim or your defence to beware of an overbroad approach which will likely lead to large discovery requests.

Contributed by: Catherine Thuillier

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