In a recent High Court decision, Mr Justice Murray identified a helpful checklist for determining whether the Court should grant an order for discovery or not.

Principles of discovery in Ireland

Discovery is an important part of the litigation process where parties must disclose all relevant documents in their possession to the other side. The Supreme Court had previously set out a number of important principles of discovery in the case of Framus v. CRH plc [2004] 2 IR 20. In that case, the Supreme Court noted that “a sense of proportion” must be maintained and it is important to balance the right of an applicant to have sight of documents relating to their case against the unwieldy task imposed on the party asked to furnish those documents.

Checklist for discovery

In the recent High Court case of Walsh v The Health Services Executive & Ors [2017] IEHC 394, Mr Justice Max Barrett examined in some detail the principles of discovery outlined by the Supreme Court in the Framus case. In the interests of “consistency, efficiency and predictability” he identified a helpful checklist consistent with the Framus decision which is step-by-step guide for the Court to apply in a discovery application. The checklist is as follows:

a. Form of Application

  • Has the party seeking discovery pinpointed the documents or category of documents required?

  • Has the party seeking discovery given good reason why the pinpointed documents or category of documents are required?

b. Relevance 

  • Are the documents sought on discovery relevant, directly or indirectly, to the matter in issue between the parties in the proceedings?
  • Has the party seeking discovery shown it is reasonable for the court to suppose that the documents contain information which may enable the applicant either to advance his own case or damage the case of his adversary?
  • Has the applicant for discovery avoided the following in respect of each document or category of discovery required:
    • mere speculation
    • what has been traditionally characterised as a ‘fishing expedition’
    • seeking discovery merely to find out whether documentation may be relevant
    • seeking a general trawl through the other party’s documentation
    • utilising the discovery process as a tactic in the battle between the parties?

c. Necessity

  • Is discovery of the document or category of documents required necessary for disposing fairly of the cause or matter or for saving costs?

Discovery of any document or category of documents that reaches this point ought generally to be ordered.

d. Proportionality (Oppression)

Limitation may be imposed by the court where

  • there are numerous documents of slight relevance and it would be oppressive to produce them all; and / or
  • there is a want of proportionality between
    • the degree to which the documents are likely 1) to advance the case of the applicant, or 2) damage the case of his or her opponent, in addition to ensuring that no party is taken by surprise by the production of documents at a trial.
    • the extent or volume of documents to be discovered, and

Welcome steps

With the significant and often disproportionate cost that accompanies the process of a large scale discovery review in Ireland, the introduction of this helpful checklist may be a step towards a more streamlined and uniform approach to discovery by the Courts.

Walsh v The Health Services Executive & Ors [2017] IEHC 39