Court Of Appeal Suggests A More Restrictive Approach To Discovery

Facts of the case

The Court of Appeal per Hogan J. has issued a judgement in Tobin v The Minister for Defence & Ors1 which suggests a more restrictive approach to discovery. The case concerned a personal injuries claim against the Defence forces.

The Plaintiff claimed that he suffered from anxiety, depression and incidents of severe pain following a personal injury which interfere with his capacity to work. The Plaintiff sought fifteen categories of discovery to assist in proving his claim.

The Minister objected to a number of the discovery requests as they were overly burdensome and would not benefit the Plaintiff's case. The requested documents went back over 28 years. It was not contended that in order to satisfy the Plaintiff's request, 10 employees would be required to halt all other duties and spend approximately 220 hours locating and reviewing the relevant documents.

The High Court made orders in favour of the Plaintiff and requiring the Minister to provide the extensive discovery that the Plaintiff sought. The decision was appealed to the Court of Appeal.

Discovery requests

The Peruvian Guano2 case created the 'relevance and necessity test' which for many years was the test applied to assessing the reasonableness of discovery requests in Irish litigation. Under that test a party is entitled to any document relating to the matter which may be of a benefit of their case or the detriment of their opponents. Hogan J. pointed out that legal practice has changed dramatically since this ruling. With the advent of the photocopier, fax and email there is a vast amount of documentation in even the most simple of transactions.

He noted there have been attempts to reform the discovery procedure. General discovery orders have been prohibited since 1999. In CRH v. Framus3 the Supreme Court stressed the necessity for proportionality.

Court of Appeal judgement

Hogan J. was highly critical of the current discovery procedure. He did not suggest the Plaintiff was dishonest or abusing the system. Rather, he stated that the current practice was inhibiting the Courts and putting an unfair burden on the recipients of discovery requests.

In his decision Hogan J. stated that a party must exhaust all other avenues of investigation before subjecting the other party to a discovery request. He reiterated that interrogatories should be more widely used, echoing dicta of Kelly J. in Anglo Irish Bank Corporation Limited v Browne4 and Barniville J. in Dunnes...