Supreme Court to consider proper overall approach to discovery

29-01-2019

Authors: Richard Willis, Keith Smith and Sinéad Reilly

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The Supreme Court is set to consider the proper overall approach to discovery where the burden of complying with discovery is likely to be significant.

Discovery issues rarely reach the Supreme Court as that Court only hears appeals on matters of general public importance or where the interests of justice require that the appeal be heard by the Supreme Court.

However, the Court has decided to hear an appeal from a 2018 decision of the Court of Appeal in which the Court narrowed the scope of discovery that had been ordered by the High Court. Delivering the judgment for the Court of Appeal, Judge Hogan stated that there is something “seriously amiss” with the discovery system as it currently operates in Ireland. He held that, in cases where the documentation sought is likely to be extensive, judges should refuse to grant an order for discovery unless all other avenues (such as interrogatories and notices to admit facts) have been exhausted and these have been shown to be inadequate.

The Supreme Court has now agreed to hear an appeal from this decision on the basis that the issue of whether a court can or should seek to limit the scope of discovery is an issue of general pubic importance.

What is amiss?

The concerns expressed by Judge Hogan in the Court of Appeal will come as no surprise to anyone who has experience of extensive discovery in litigation before the Irish High Court, and indeed Judge Hogan is not the first judge to have been openly critical of the current discovery process. But the observations in his 2018 judgment were particularly pointed.

He described the current situation as a “crisis”, referring to the burden placed on litigants and the significant costs incurred by extensive discovery orders, and the consequent delay which impacts not only the parties themselves but also the wider legal system. A process, he said, which was designed to assist the fair administration of justice now threatens to overwhelm it by imposing disproportionately onerous demands on litigants.

The problem, as identified by Judge Hogan, is that existing discovery practice has its origins in the seminal 1882 case, ‘Peruvian Guano’, and has failed to take account of the massive technological advancements since then. The Peruvian Guano case established the ‘relevance and necessity’ test – a party is entitled to any document which relates to the matters in question in the proceedings and which contains information which may (not ‘must’) either directly or indirectly enable that party to advance his/her own case or to damage the other side’s case. This test worked well for many generations because the number of documents it captured was relatively small and manageable. But the explosion of data has changed this dramatically.

How does this manifest itself?

The case now before the Supreme Court is, as Judge Hogan said, a paradigm example of how present day discovery practice has gone seriously amiss. It is a “routine” personal injuries case. The appellant is seeking damages from the State for personal injuries he claims to have suffered while employed as an aircraft mechanic with the Aer Corps from 1989 to 1999. In the High Court he obtained an order for discovery of thirteen categories of documents dating back to 1990.

The uncontested evidence before the High Court was that it would take 10 members of staff in the Department of Defence – all of whom would have to be diverted from their existing duties – some 220 man hours to review, locate and categorise the documents sought. Many of these records are in hard copy form only and are stored in a variety of locations. Judge Hogan in the Court of Appeal noted that it was inevitable that the burden involved in seeking out and cataloguing hard copy documents dating back some 28 years was likely to be very considerable.

What did the court of appeal say?

In the Court of Appeal Judge Hogan stated that in cases where the discovery sought is likely to be extensive, the High Court should not make an order for discovery unless all other avenues have first been exhausted and these have been shown to be insufficient. The judge specifically encouraged more widespread use of interrogatories (questions designed to elicit facts) and notices to admit documents.

Will we see reform?

It may take some months before the Supreme Court hears this appeal and delivers a decision, but it is certainly one we will be watching with interest.

Discovery is an area ripe for reform. Indeed a Review Group established in 2017 and chaired by the President of the High Court is currently looking at how court rules on discovery and other procedural issues might be reformed to improve access to justice. A subcommittee of the Commercial Litigation Association of Ireland has made submissions to the Review Group on how the Irish court rules might be changed to reduce costs in discovery exercises. Richard Willis is a member of the subcommittee.

Reform is likely. We’ll keep you updated.

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