Supreme Court provides guidance on scope of discovery requests

Background

This Supreme Court appeal concerned the scope of a discovery order.

Leave to appeal to the Supreme Court was granted to determine whether traditional discovery is fit for modern conditions, in particular in circumstances where the burden of complying with discovery is likely to be significant.

Facts

Mr Tobin was an Aer Corps mechanic who was employed by the State. Mr. Tobin alleged that in the course of his employment he was exposed to dangerous chemicals and solvents and, as a result of this, he issued personal injuries proceedings alleging negligence against the State. Mr. Tobin sought fifteen categories of documents from the State. The State responded that it would take ten members of staff and approximately 220 man hours to locate, review and categorise the documents sought. It said it was disproportionate, burdensome and excessive. It also argued against the necessity for discovery saying the plaintiff could seek interrogatories and admissions instead.

The High Court granted thirteen of the categories sought to the plaintiff. This decision was subsequently appealed by the State to the Court of Appeal.  The Court of Appeal overturned the High Court's ruling and held that discovery should not be ordered unless all other available options had been properly explored and exhausted. It refused the request for discovery of certain categories and said they should have more properly been dealt with by way of interrogatories. Discovery should be the last and not the first resort. (See here our earlier article on this judgment).

Decision

The Supreme Court held that it is for the party resisting the discovery request to show that it is disproportionate and to establish that there are other means of achieving the same ends which are likely to be capable of being delivered at a significantly reduced deployment of resources.  In assessing the proportionality issue, the Court noted that making of full discovery would place a material burden on the State. However, it was emphasised that the burden was far from one at the upper end of the scale.  The Court classed the burden as "moderate" rather than" severe or extreme". In relation to the second limb, the Court was not satisfied that there were other procedural mechanisms in which the information sought could be provided. The Court held that it had not been shown that the information could be given in an authoritative way without the State carrying out a significant amount of the research which would have been necessary to make discovery. On that basis, the State failed to prove that alternative procedural measures could give all or most of the information to which the plaintiff is reasonably entitled to but at the deployment of significantly reduced resources.  For those reasons also the proportionality argument cannot succeed.

The Supreme Court stated that the High Court was correct (save for one temporal limitation exception which it imposed) and the Court of Appeal was in error in respect of the refusal of discovery of the categories. The Supreme Court concluded by allowing the appeal and the High Court's order was restored.

Takeaways

This judgment provides a useful re-examination of discovery and in particular,

• It brings some clarity to the parameters of discovery as a litigation tool and reiterates its place in the civil litigation model.
• It re-examines the discovery test principles of "relevance" and "necessity ".   Relevance is the starting point of any discovery exercise and it is for the party seeking discovery to establish "relevance " but once it is established, the default position is usually that it is also "necessary". However, that default position can be displaced by a range of factors including whether it is disproportionate and whether the same ends could be achieved by cheaper means.
• It observed that it is incumbent on the party arguing that a request for discovery is excessive to set forward a response to a request for discovery in some detail, and, if appropriate, suggest an alternative means by which the legitimate requirements for the proper administration of justice could be met.
• Finally, it highlights the dangers of generic pleadings which deny all elements of a claim.  This approach can give ammunition for a party to ground their expansive request for discovery. Failure on the part of a plaintiff or defendant to properly plead their case can in turn lead to broad and extensive discovery requests in an attempt to narrow down/identify the issues in advance on the trial of the action.

For more information, please contact Edward Lyons, Sinead Grace or your usual contact in Beauchamps.

Tobin -v- Minister for Defence [2019] IESC 57