Court Encourages Alternatives To Discovery

Tobin v The Minister for Defence Ireland and The Attorney General [2018] IECA 230

Modern discovery rules and procedure came under more scrutiny in the recent Court of Appeal decision delivered by Judge Hogan on 09 July 2018.

Background

The plaintiff was a mechanic with the Air Corps at Casement Aerodrome in the early 1990s. He alleges that he suffered personal injuries arising from exposure to toxic chemicals in the workplace. The plaintiff sought 15 categories of documents dating back almost 30 years from the Minister for Defence, 13 of which were granted by the High Court. The Minister for Defence challenged the High Court order on the basis that it would take 10 members of staff to be diverted from their duties and some 220 man hours to compile the discovery.

Court of Appeal

In describing the operation of the current discovery regime as a "crisis", Judge Hogan voiced judicial concerns regarding the breadth of discovery orders, the burden being imposed on parties, the consequent delays and increase in costs. The judge felt that in seeking to ensure that the discovery process does not potentially overwhelm the action or become unreasonably burdensome, it is necessary for the court to have regard to the expense and time involved, whether alternative means of achieving the same outcome are available and whether on the basis of the pleaded case it is appropriate to limit the discovery. Balancing the fact that this was a routine personal injuries case against the onerous and disproportionate burden placed on the Minister for Defence, the court concluded that the application for discovery was premature and refused most of the disputed categories.

Alternatives to extensive discovery requests

Judge Hogan made it clear that extensive discovery requests should be a last resort and no such orders should be made unless all other options have been properly explored and shown to be inadequate. The judge advocated the use of interrogatories and notices to admit facts as alternatives. In relation to interrogatories, the judge encouraged co-operation amongst the parties to maximise their benefit. It was in the interests of the party being interrogated to facilitate the process and provide sufficient information.

Interrogatories are written questions, answerable on affidavit, which a party may, with permission from the court...