Discovery in Ireland After the Kelly Report

The High Court has recently likened Ireland’s discovery process to the outdated medical practice of using leeches. The Kelly Report, published in October 2020, proposed sweeping reforms to modernise discovery procedures, aiming to reduce cost and delay. However, nearly five years later, its recommendations remain unimplemented by the Oireachtas. In this article, our Dispute Resolution team examines a recent High Court judgment which highlights why the ongoing stagnation in reform is burdening litigants with unnecessary time and expense.

What you need to know

• The Kelly Report proposed sweeping changes to the discovery process in Ireland.
• However, the discovery process has not been updated since the publication of the Kelly Report.
• Discovery remains a large proportion of the overall costs of High Court proceedings.

A sweeping overhaul of the discovery process in its current format was put forward by the former President of the High Court, Mr Justice Peter Kelly, in the Review of the Administration of Civil Justice Report in October 2020.

The Report recognised that the costs burden placed on parties in meeting their discovery obligations has spiralled out of control. However, the Report’s recommendations to improve the discovery process have yet to be implemented.

The current discovery process was recently considered by Mr Justice Twomey in the High Court[1] where he likened it to the deployment of leeches in a modern medical environment.

Background

Discovery in Ireland is conducted in line with rules derived from the 1882 judgment in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co.[2] The principles distilled from Peruvian Guano are briefly that discovery should be made of documents that are ‘relevant and necessary’ for the fair disposal of a case.

While noting that he was compelled to follow these principles, Mr Justice Twomey made several observations. Lamenting the lack of modernisation in this area of litigation, he noted that the Report described the Peruvian Guano principles as being ‘completely unsuited’ to an ‘era of the mass proliferation of electronic data and information’.

In particular, Mr Justice Twomey focused on the effect of discovery on the overall cost of High Court proceedings. While this is not a unique observation having been made repeatedly by the Superior Courts, Mr Justice Twomey noted that the case before him ‘starkly illustrates in euro terms how discovery is a ‘monster’ and why the [Report] called for its abolition’.

RAAP v PPI

A long-running dispute between Recorded Artists Actors Performers Ltd (RAAP) and Phonographic Performance (Ireland) Ltd (PPI) over the fair distribution of licence fees for public performance and broadcast has raised important questions around the scope of discovery.

The discovery process was extensive, with the defendant reporting that 1.78 million documents were reviewed and over 81,000 identified as potentially relevant. Drawing on metrics set out by Mr Justice Simons in a separate case, Mr Justice Twomey estimated the cost of this discovery exercise to be around €250,000 per party.

Putting these observations aside, Mr Justice Twomey turned to the categories of discovery at issue. Three categories sought by RAAP amounted to correspondence between itself and PPI. In assessing the necessity of these categories of documents, Mr Justice Twomey held that ‘necessary’ should be given its plain meaning so that it does not lose its significance. Accordingly, the presumption that a relevant document is necessary to be discovered is rebutted if a party has or should have that relevant document.

This judgment provides a helpful clarification of the Peruvian Guano principles. It may also offer parties greater protection against excessive and costly discovery obligations.

Comment

In this judgment, Mr Justice Twomey highlighted a missed opportunity in discovery reform. The judgment does, however, provide a welcome clarification of the meaning of the word ‘necessary’ in the context of an application for discovery. If a requested category of discovery obviously captures documentation which should already be in the possession of the requesting party, the judgment provides scope to resist the category or to propose its rewording.

Given the risk of an expensive and expansive discovery process, it is important at the outset of any dispute to fully understand the scale and impact of the discovery process. Experienced advice can greatly assist in ensuring the process is managed efficiently to minimise costs.

For more information and expert advice, contact a member of our Dispute Resolution team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Limited, the Minister for Jobs, Enterprise and Innovation, Ireland, and the Attorney General [2025] IEHC 119.

[2] (1882) 11 Q.B.D. 55.