Ireland: The Supreme Court Reaffirms The Importance Of Discovery

Last Updated: 6 August 2019
Article by Louise Boughton and Ruairi Geoghegan

“The English invented discovery while casting about for a substitute for torture for parties unwilling to reveal facts at issue in a law suit. Their idea was a good one; but the way it is carried out causes the litigants less torment only in the sense that their agony is mental, not physical." 1

Torturous as it may often be, on 15 July 2019, the Supreme Court took the opportunity to reaffirm the importance of discovery in a crucially important and keenly awaited judgment in the case of Tobin v The Minister for Defence, Ireland and the Attorney General (a full copy of the judgment is available here).


Mr Tobin initiated High Court personal injury proceedings against the Defendants for injuries allegedly suffered by reason of what he said was a failure by the State to provide him with a safe system and place of work as well as appropriate training and equipment, during the course of his employment as an aircraft mechanic with the Air Corps. He originally sought an order for discovery from the Defendants relating to 15 categories of discovery, 9 of which were agreed between the parties prior to the application to the court. The Defendants opposed the application on the basis that the categories of discovery sought by Mr Tobin were extensive and the process by which they would need to be reviewed and discovered would have been overly burdensome.

High Court

In the High Court, Justice McDermott ordered discovery of the categories of documents requested on the basis that it was “necessary and relevant to his case that discovery be granted”. Justice McDermott also ruled that the nature of the claim necessarily required that the burden of discovery be imposed upon the Defendants.

Court of Appeal

The focus of the appeal was on the burdensome nature of the request and Justice Hogan in delivering the written judgment referred to the  “crisis… now facing the courts regarding the extent of burdens, costs and delays imposed on litigants and the wider legal system by the discovery process as it presently operates.”

The Court of Appeal heard that the discovery process would take the Defendants 200 man hours to accomplish as well as covering a period of some thirty years. Justice Hogan in his judgment took the opportunity to take aim at the system of discovery in Ireland and he set out alternative solutions available to the parties. It was in these circumstances that Justice Hogan allowed the appeal and refused to order discovery of certain of the more onerous categories requested on the grounds that Mr Tobin’s application was premature and he should, in the first instance, seek the information by means of interrogatories.

The Supreme Court

Chief Justice Clarke delivered judgment in the Supreme Court and while he noted that discovery has the possibility to “hinder access to justice” if it becomes disproportionately burdensome, the decision of the Court of Appeal was ultimately overturned and he ordered that the State provide discovery of the categories contested which he believed to be necessary and relevant to Mr Tobin’s case.

In so doing, Chief Justice Clarke discussed at length the importance of discovery in Ireland and the legal principles which must be analysed and applied in each case. He set out the parameters to be applied in determining relevance in the discovery process and he stressed the importance of engagement between the parties before a motion in respect of discovery is issued. 

Chief Justice Clarke also examined the burden argument raised by the Defendants with regard to the extent of the discovery process which would be required in these particular circumstances and he characterised it as being “moderate rather than severe or extreme”.


The decision of the Supreme Court undoubtedly stresses the importance of the discovery process in litigation in Ireland. Importantly, however, Chief Justice Clarke stated that the decision was very much based on the individual circumstances of this case and he leaves the door open in that regard to the use of alternative procedural measures, such as interrogatories, in cases where they might be better suited.  

As a general comment, the case raises questions about the burden of discovery on the party required to make discovery. The Affidavit of Discovery uses the words “possession,” “power,” or “procurement and custody” when talking about documents.

Possession is generally thought to be “a right and power to deal with the document.” A document is within the “power of a party” if he has an “enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else.” Procurement is generally thought of as being interchangeable with the word power and custody is generally thought to be the physical holding of a document regardless of the right to possession.

It is readily evident, therefore, that discovery stretches beyond the physical possession of a document and obliges the party to list documents over which it has an enforceable legal right to obtain. This creates a multitude of possibilities in approaching any discovery request and arguably, a request that contains 15 separate categories dating back as far as the early 90s, as was the case in Tobin, is going to require far in excess of the 200 man hours suggested.


1  William B. Spawn, American Bar Association President – speech delivered to the North Carolina State Bar, 1977.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions