In a recent Court of Appeal decision, Mr Justice Hogan (Hogan J) highlighted the difficulties with the current rules and practice of discovery in litigation. He noted that a process, which was designed to assist the fair administration of justice, now threatens to undermine it by imposing particularly burdensome demands on the parties to the proceedings.

He suggested that it was up to the Courts to remedy this practice by insisting that in cases where extensive discovery is sought, the Court should not make an order for discovery until all other avenues have been exhausted and shown to have been inadequate.

Background to the case

The plaintiff, a mechanic in the Aer Corps, issued personal injury proceedings against the Minister for Defence and the Attorney General (the defendants) alleging personal injuries arising out of contact with toxic chemical fumes through his work with the Aer Corps. Hogan J described the proceedings as “routine” personal injury proceedings.

The plaintiff sought fifteen categories of discovery from the defendants. The High Court made an order providing for extensive discovery to be made to the plaintiff, which the defendants appealed to the Court of Appeal.

The defendants gave uncontested evidence that in order to comply with the discovery sought by the plaintiff, 10 existing staff members would have to be diverted from existing duties to review locate and categorise the documents sought from various locations dating back to 1990. It was anticipated that the process would take up to 220 man-hours.

Alternative options to Discovery

Hogan J allowed the defendants’ appeal in respect of a number of the categories of discovery sought by the plaintiff. Hogan J held that before an order for discovery should be made, the plaintiff should in the first instance seek the information by means of interrogatories or a notice to admit facts. In reaching this decision, he relied on the recent decision in Dunnes Stores v McCann [2018] IEHC 123 where Mr Justice Barniville stated a court should be scrupulous to ensure discovery is really needed and to refuse discovery where interrogatories would be appropriate or alternative means of proof is available. Hogan J, in reaching this decision, highlighted that he was not criticising the plaintiff in any way, since the discovery requests made simply reflected the current practice in discovery matters.

What are interrogatories?

Interrogatories are a means of obtaining information and/or admissions as to facts from the other party by asking a series of questions. The answers are given under oath and may be used as evidence in the trial. Hogan J noted that the use of interrogatories is far superior to discovery as the parties can simply ask questions rather than spend time sorting through thousands of documents to find the answer.

Effect of Decision

The rules surrounding discovery process as we know it may undergo change in the near future in light of technological advances and the consequential increase of documentation in existence. Until such a time, prior to seeking discovery of what could amount to extensive documents or place extensive burden on a party, an applicant should consider other avenues which could potentially provide the information sought.

Gavin Tobin –v- The Minister for Defence, Ireland and the Attorney General [2018] IECA 230