Challenging A Third-Party Discovery Request

• Published date: 29 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Trials & Appeals & Compensation
• Law Firm: William Fry
• Author: Mr Paul Convery, Laura Murdock and Adele Hall

"Third-party" or "non-party" discovery is provided for under Irish court rules. It is an extension of the scope of discovery in that it allows the court to order a non-party or stranger to the proceedings to make discovery of documents in certain circumstances.

Basis and Standing

Order 31 Rule 29 of the Rules of the Superior Courts (RSC) governs the procedure in the superior courts, while similar provisions are also contained in the Circuit Court Rules and District Court Rules.

The test applicable to an application for non-party discovery was summarised by the Supreme Court in Edward Keating v Radio Telefís Éireann and Others [2013] IESC 22. The applicant must establish that:

• the third party has or is likely to have in its possession or power of possession documents falling within the parameters of the type of documents sought;
• the documents are relevant to an issue or issues in the action;
• an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and
• any order made, by reference to its scope, is not oppressive.

The Supreme Court also emphasised the discretionary nature of the court's jurisdiction in non-party discovery applications.

Challenging the third-party discovery request as the third-party

In Lynda Meegan v Times Newspapers Limited t/a The Sunday Times [2021] IEHC 495, the Commissioner of An Garda Síoch'na (AGS) was directed to make discovery of a report despite arguing that it was covered by public interest privilege. See our previous article on the judgment here.

Mark Beatty v The Military Judge and The Director of Military Prosecutions and The Human Rights Commission (Notice Party) [2021] IECA 69

In this case, Mr Beatty (Appellant) brought an application in the High Court for non-party discovery against the Court Martial-Administrator (CMA), seeking discovery of a copy of the Digital Audio Recording (DAR) from the court-martial proceedings that had been brought against him, and which he wished to have judicially reviewed.

The High Court refused the application on the grounds that the discovery sought by the Appellant was otherwise available from an existing party to the review proceedings (i.e. the Military Judge), and that the Appellant had not shown any exceptional need for the DAR beyond "the prevention of disparity" between the parties.

The Appellant's case was also dismissed by the Court of Appeal (COA). The COA focused on the necessity for non-party discovery. The COA noted that because of...