Two New High Court Judgments Provide Warnings To Legal Advisors Regarding Discovery Obligations

• Published date: 05 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: RDJ LLP
• Author: Mr Ronan Geary and Sharon Burke

There have been two High Court judgments this month which emphasise the need for parties to make full and proper discovery, and in, particular, outline the importance for parties to litigation to preserve potentially discoverable documents once litigation is contemplated. Ronan Geary and Sharon Burke from our Commercial Dispute Resolution team successfully acted for the motioning party in the second such case and discuss both Judgments below.

The first judgment delivered earlier this month by Mr Justice Heslin in McNally -v- Molex Ireland Ltd and Molex Incorporated,¹ arose from an application by way of a motion striking out the defence, for failure to comply with an Order for discovery. The Plaintiff claimed there were 'irrefutable defects in the discovery process' and made submissions to the effect that the Defendants' discovery process had been very deliberately fashioned to bring about a result where no documents would be furnished, preventing him access to a fair trial.

The second judgment delivered on 30 November, 2022 by Mr Justice Holland in Hurley -v- Valero Energy (Ireland) Ltd,² expressly considered Heslin J's earlier judgment, and arose from an application by the Defendant to dismiss the Plaintiffs' entire claim where the Plaintiffs admitted destruction of discoverable documents during the currency of the litigation itself. The Defendant claimed that by reason of the destruction of the documents in question, it could not properly defend the Plaintiffs' claim as it could not interrogate losses alleged by the Plaintiffs.

The High Court made a number of key observations in both judgments.

1. Warning to lawyers

In Hurley, Holland J echoed the judgment in Rockwell Machine Tool³, which encouraged practitioners to take positive steps to ensure that their clients appreciate at an early stage of the litigation, promptly after any writ issued, not only the duty of discovery and its breadth, but also the importance of not destroying documents which might have to be disclosed. The Judge also referenced the so-called 'litigation hold' discussed by the Court of Appeal in Orla McNulty -v- The Governor and Company of the Bank of Ireland⁴, where Collins J observed that it was now an overarching principle that parties should take all steps necessary to preserve sources of data as soon as they become aware of a matter which is likely to require discovery. Indeed, the Judge expressly issued a further reminder to practitioners that issues of preservation should be...