It is undeniable that discovery applications take up a considerable amount of the court’s time and the discovery process is often a source of extensive delays and significant additional costs to the parties to proceedings. Indeed in a 2009 case discovery costs were estimated at €10 million and a number of US commentators estimate that discovery can account for up to 80% of litigation costs.
A recent Court of Appeal decision, in which Hayes Solicitors acted for the Defendants, has indicated a radical change in how discovery will be dealt with and may eradicate the foundational authority set by Peruvian Guano which made it relatively easy for parties to justify wide-ranging and vast discovery requests. In doing so, the courts have recognised the significant cost and time constraints that discovery has had upon parties to litigation.
The Plaintiff obtained an order for discovery in the High Court which was appealed by the Defendants to the Court of Appeal.
The Defendants, in both their Notice of Appeal and replying Affidavits, suggested that interrogatories (a procedure where one party to a case requires the other party to answer on oath a list of questions) would be a more appropriate means of providing the relevant information than the comprehensive discovery sought and even went as far as to suggest what form the interrogatories might take.
The Court of Appeal acknowledged that the Defendants would have to go to considerable expense in order to comply with the discovery order made by the High Court, as it covered documents going back approximately 30 years. The Court held that while the State is in a better position compared to other defendants to deal with such discovery requests, the State, as a party to litigation, cannot be treated differently and less favourably than any other litigant.
The Court, in allowing the appeal, held that no order for discovery will be made unless all other avenues of obtaining such information, such as the suggested interrogatories, have been exhausted and only in circumstances where other avenues are shown to be inadequate will an order for discovery be granted.
Practical Effect of the Decision:
The practical effect of this decision is that there is now an obligation on parties to proceedings to explore all other available options before seeking discovery and a party may well be able to resist a broadly worded discovery request by arguing that the information sought is more properly a matter for interrogatories or notice to admit facts as the case may be. Judge Hogan found that “In cases where the discovery sought is likely to be extensive, no such order should be made unless all other avenues are exhausted and these have been shown to be inadequate”.
This decision is reminiscent of Judge Hogan’s decision in Armstrong v Moffatt which revolutionised the way Notice for Particulars are dealt with. However, Judge Hogan did confirm that where alternative avenues do not provide the information required (such as where the responding party was not forthcoming with their responses to interrogatories) it will be open to the Plaintiff to seek the information by way of discovery.
The discovery process has been cumbersome, costly and often resulted in protracted proceedings. However, this decision may mark the end of unnecessary discovery requests as a party seeking discovery is now under an obligation to explore all other avenues of obtaining information before seeking orders for discovery from the court. Parties faced with wide-ranging discovery request should consider how else the information sought through such documents might be obtained by the other side, and if appropriate, invite the other party to seek that information through those alternative channels rather than through the discovery process.