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Dispute Resolution Update: Is the Discovery Process in Crisis?

04 September 2018

Judge Hogan recently delivered a judgment in Tobin v The Minister for Defence & Ors [2018] IECA 230 which took a critical stance on the modern day discovery procedure.

Background to the case

The case concerned an appeal of a decision of the High Court which required the Minister for Defence (the Minister) to produce extensive discovery.

Judge Hogan described the case as “a routine personal injuries case”. Mr Tobin had alleged that he suffered personal injuries from his time working as an aircraft mechanic with the Irish Defence Forces.

15 categories of discovery were requested from the Minister. The Minister objected to some of the categories because of their burdensome terms. It was uncontested evidence that the discovery requested would take 220 man hours to accomplish and would involve seeking out documentation that has been held in a variety of different locations for up to 28 years.

Court of Appeal decision

Discovery can be traced back to a case from 1882[1], which established that litigants are entitled to discovery of documents that either directly or indirectly enable them to advance their case or defend against the case of the other side.

Judge Hogan noted that since then advances in modern technology have transformed discovery practice and he was critical of the current procedure. He stressed that his criticism was of the existing discovery practice and procedure and not of Mr Tobin or his legal advisors who were following contemporary practice in discovery matters.

He recognised that extensive burdens, costs and delays are being imposed on litigants by the discovery process. While discovery is supposed to assist the fair administration of justice, the onerous demands being placed on litigants by discovery is threatening to overwhelm it.

In analysing the categories of discovery sought by Mr Tobin, Judge Hogan noted that a number of the categories were premature and that other avenues should be pursued before the court would make an order for discovery on the terms sought by Mr Tobin.

Alternatives

Judge Hogan advocated for an increased use of interrogatories. Interrogatories are written questions which are put to the other side with the answers being given under oath and they may be used as evidence in the trial. In this case, he ordered that the discovery application could be renewed if the information obtained by interrogatories was insufficient.

Conclusion

It is clear that the current discovery process is increasing costs and causing delays. The practical approach taken by Judge Hogan, of using interrogatories and/or notices to admit facts before requesting extensive discovery could help to alleviate some of the delays and minimise costs currently caused by requests for discovery.

For more information on alternatives to discovery, 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] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D. 55

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