“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.
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.
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