There is a current epidemic of extensive, expensive, voluminous and time-consuming discovery processes.
In Gavin Tobin v The Minister for Defence, Ireland and the Attorney General, the Court of Appeal has sought to require litigants to follow a more direct, quicker, cheaper and less burdensome path – at least as a first port of call.
The plaintiff’s claim
In this case, the plaintiff had sought damages against the Minister for Defence for personal injuries which he claimed to have suffered in the course of his employment with the Air Corps in the 1990s.
In the High Court, he obtained extensive, traditional orders for discovery of documents for 13 out of 15 categories of documents. The defendant Minister appealed to the Court of Appeal.
The uncontested evidence in the High Court was that it would take 10 members of staff 220 man-hours to review locate and categorise these documents.
The Court of Appeal ‘haircut”
The Court of Appeal trimmed and varied a number of the categories of discovery. More significantly, however, in no fewer than six categories, it directed that the plaintiff not obtain discovery of documents at all for the time being. Rather, the Court directed that the plaintiff first seek leave in the High Court to issue appropriate interrogatories, and only if these failed to provide sufficient information for the purposes of the proceedings, was he to proceed to renew his application for discovery of documents.
Ambit of discovery
Delivering the Court’s judgment, Mr Justice Hogan referred to the well-established principle that the ambit of discovery is defined by reference to the pleadings and the particulars of the case.
In line with this reasoning, he cited Mr Justice McCracken in Hannon v Commissioners of Public Works  IEHC 59:
“Relevance must be determined in relation to the pleadings in [a] specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in affidavits”.
The burden and the solution
Mr Justice Hogan stated that the plaintiff’s far-reaching discovery request in this case reflected the “crisis” now facing the courts regarding the extent of burdens, costs and delays imposed on litigants by the discovery process.
He noted previous judicial pronouncements as to the disproportion between the burdens imposed and the benefits accruing. These included the observation that it is often the case that, even in complex litigation, only a relatively small number of documents eventually prove to be the important ones, despite the generation of thousands of documents in the course of the discovery process, most of which are never used or deployed in court.
In moving towards an alternative to mitigate this problem, he referred to the judgment of Mr Justice Barniville in Dunnes Stores v McCann in which the latter judge suggested that
“the court should be scrupulous to ensure that discovery [was] needed and the court should refuse the request where interrogatories [were] more appropriate or where an alternative means of proof [was] available’’.
Mr Justice Hogan then set out circumstances in which it would be unnecessary for discovery to be ordered (whether at all, or for the time being) given that other avenues, such as the delivery of interrogatories, were available.
What are interrogatories?
Interrogatories are direct questions to be answered on oath by an opposing party, and are traditionally phrased in the format “Did not….?”; “Is not….?”; “Was not…?”, and so on.
However, as Mr Justice Kelly pointed out in Anglo Irish Bank Corporation Limited v Browne:
“Interrogatories need no longer be framed in an archaic form by posing questions in the negative. They can ask direct questions.”
Advantages of interrogatories
In the same case, Mr Justice Kelly pointed out the virtues of interrogatories:
“Interrogatories are in many instances superior to discovery. That is so for a trinity of reasons. First, they ask a direct question. Thus the questioner instead of having to sort through what may be hundreds or thousands of documents in an effort to find out whether a particular state of affairs existed or not, simply asks the relevant question. Second, the interrogatories must be answered. Moreover, they are answered under oath. Third, the interrogatories, once answered, may be utilised as evidence in the trial thereby avoiding the necessity to call one or more witnesses…
I have seen many cases in [the Commercial] division of the court where a large reduction in discovery and considerable shortening of trial time was achieved by the answering of, by times, in excess of a hundred interrogatories.”
In relation to the request for discovery in the Tobin case of “Category 2” documents, for example, which related to a list chemicals utilised by the plaintiff during his employment since 1990, Mr Justice Hogan held that, where the burdens of granting a particular category of discovery would be considerable, the court should not make an order for discovery unless all other available options had first been properly explored.
Given that the plaintiff already knew the chemicals and solvents he had used during his employment, this was an “obvious instance” of where the plaintiff might be permitted to serve interrogatories on the Minister requesting him to state whether these particular chemicals were in fact used during the course of the plaintiff's employment, and, if so, to estimate the quantities that were so used during the period of the plaintiff's employment. A discovery order was not, therefore, necessary (at least for the time being). However, if the information obtained by interrogatories transpired to be insufficient, the plaintiff was to be at liberty to renew his discovery application before the High Court.
The Court also applied this approach to five other categories of documents. Having rejected discovery of these categories documents for the time being, Mr Justice Hogan stated that the plaintiff would, of course, have to issue a motion for interrogatories in the High Court before an order could be made granting leave to deliver them. (Note that such leave is not required in commercial proceedings admitted to the Commercial List of the High Court.)
What the Court’s decision means for the future
The Court of Appeal judgment sets the course for when discovery will be ordered, and when other, faster, cheaper and less burdensome alternatives might be directed and utilised (at least as a first resort).
The new deal
In an era of vast electronic discovery, and the ensuing costs and delays associated with this, Mr Justice Hogan stated that the judiciary must now re-calibrate and adjust modern discovery practice by insisting that, in cases where discovery was likely to be extensive, plaintiffs should first engage in other processes, such as the delivery of interrogatories.
If such other avenues proved to be inadequate in providing sufficient information, it was then to be open to plaintiffs to renew, or make applications for, discovery orders accordingly.
This case suggests that the courts may in future considerably limit the volume of documentation they will order to be produced by way of discovery.
They can be expected to do so at least until satisfied that other avenues, such as the delivery of interrogatories, have been explored and found to be insufficient.
In seeking to turn the tide in these matters going forward, Mr Justice Hogan emphasised that “discovery should be the last – and not the first – resort”.
If seeking discovery, it would seem that a party should seek to deliver interrogatories where this is a possible avenue, and reserve the right to seek discovery if that process turns out to be insufficient.
Parties on the receiving end of a request for discovery, or a motion for discovery, and who are concerned about a voluminous exercise, might now also suggest that discovery should be the ‘last resort’, according to the courts, and might resist requests or motions for discovery by reference to the principles and approach set down in the Tobin case.
However, they may in certain awkward cases prefer to deal with a discovery process, and leave it to the other party to sieve through the material, rather than answer direct and focused questions on oath. Therefore, it will be a matter of judgment in each case as to whether to ‘invite’ interrogatories in response to a discovery request.
For more information on the likely impact of this development and related matters, contact a member of our Public, Regulatory & Investigations team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
  IECA 230
  IEHC 123
  IEHC 140