All other options must be explored before discovery is ordered
In Tobin v The Minister for Defence & Ors  IECA 230, Court of Appeal, Hogan J, 9 July 2018, the Court of Appeal held that discovery should not be ordered unless all other available options had been properly explored. It refused a request for discovery of certain categories of documents on the basis that the application was premature and the plaintiff should first ask the High Court for permission to deliver interrogatories on the matters at issue. The Court pointed out that if the information obtained by way of interrogatories was insufficient, the plaintiff could then renew his discovery application. The Court also observed that it would be in the defendants' interests to facilitate the plaintiff in relation to the responses to interrogatories.
The proceedings were for personal injuries in which an Aer Corps mechanic alleged exposure to toxic chemical fumes in his work environment. The plaintiff sought fifteen categories of discovery from the Minister for Defence who offered to make discovery of nine categories, six in the manner sought by the plaintiff. The uncontested evidence in the High Court was that it would take 10 members of staff 220 man hours to review, locate, and categorise the documents in question. Many of these records were held only in manual form and were stored in a variety of locations.
The High Court ordered the Minister to make discovery of thirteen categories of documents dating back to 1990.
The Court of Appeal noted that this was a routine personal injuries case (with some unusual features) which, at its height, was one of moderate severity. It also noted that if the discovery sought by the plaintiff was granted, it would be very onerous and, in all likelihood, out of all proportion to the likely benefits to the plaintiff.
The Court of Appeal pointed out that judicial concerns regarding the breadth of discovery orders had been expressed with increasing frequency and it was necessary for the Court to ensure that discovery did not potentially overwhelm an action or impose unreasonable burdens on the parties. The Court observed that "something is seriously amiss with the discovery system as it currently operates" and that it was necessary to seek out alternative solutions. The Court referred to the decision of Barniville J in Dunnes Stores v McCann  IEHC 123 where he stated that the court should be "scrupulous" to ensure that discovery is really needed and "to refuse such discovery where interrogatories would be more appropriate or where an alternative means of proof is available to the applicant for discovery."
The Court went on to state:-
"Such is the extent of the crisis facing our legal system by reason of the burdens imposed by discovery requests, that it now behoves the judiciary to re-calibrate and adjust that practice by insisting 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."
The Court allowed the appeal in respect of a number of categories of documents on the basis that the application for discovery was premature and the plaintiff should seek the information sought by means of interrogatories or a notice to admit facts. The Court pointed out that a co-operative approach by both parties to these requests might well have the effect of not only reducing the factual issues in dispute, but also obviate the need for wide-ranging or extensive discovery. The Court indicated that if the application for interrogatories did not yield what was really necessary or essential to the prosecution of the plaintiff's case he could renew the application for discovery in the High Court.
For further information please contact Paula Mullooly.
Date published: 18 July 2018