Discovery at the Crossroads: Tobin and the Kelly Report

Introduction

Discovery is defined as “the right by which a party to some proceedings…before a civil court is enabled…to extort on oath from another party to those proceedings… the production of all documents in his possession or power relating to such matter”.[1] So stated, this familiar aspect of civil litigation is relatively uncontroversial. However, since the advent of mass communications, the law of discovery has come under increasing pressure from the sheer volume of information now amassed in everyday life and business. The law of discovery can be easily weaponised in this climate, by requiring parties (often of lesser means) to identify within these vast swathes of information, specific tranches of relevant documents. This can place severe financial strain on the requested party. The scale of the challenge now facing the legal system was summarised by the Court of Appeal (Hogan J):[2]

“… this appeal serves to illustrate the crisis – and there really is no other word for it  – now facing the courts regarding the extent of the burdens costs and delays imposed litigants and the wider legal system by the discovery system as it presently operates.”

The above comments of the Court of Appeal are taken from its decision in Tobin v Minister for Defence. The decision of the Court of Appeal, and the subsequent decision of the Supreme Court on appeal,[3] encapsulate the current pressures on the system, and the disagreement as to how this impasse can be negotiated. That disagreement has been thrown into yet sharper relief by the radical recommendations of the Civil Justice Review Group,[4] chaired by Mr Justice Peter Kelly, former President of the High Court (“the Kelly Report”). This article will assess the contrasting judgments in Tobin, before considering the recommendations of the Kelly Report, and comment on the path forward from here.

Tobin v Minister for Defence

Mr Tobin took proceedings alleging personal injuries suffered while working as an aircraft mechanic with the Aer Corps in the 1990s. In furthering his claim, Mr Tobin sought discovery of 15 categories of documents from the Minister. The Minister objected to discovery on the grounds that it was unduly burdensome and it would take 10 members of staff 220 man hours to complete.

Decision of the Court of Appeal

The Court of Appeal noted the existing law in the area and the classic test; namely that discovery of the documents is relevant and necessary to the fair disposal of the case.[5] Hogan J. further noted the addition of the gloss of proportionality analysis added by decisions such as CRH v Framus[6] in an effort to meet the concerns of excessive burdens of discovery. However, he concluded that “[t]hese efforts have not… been fully successful and the burdens which the contemporary discovery process imposes on litigants remain almost as acute as ever.”[7] He continued:

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.

Hogan J. saw it as incumbent upon the Court to forge a new path forward and to divine a solution to the present crisis. He located this solution in the often overlooked procedure of interrogatories. He noted a number of High Court judgments in which it had been emphasised that a court should be “scrupulous” to ensure discovery is really necessary 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.”[8]

The Court went on to quote from a decision of Kelly J. (as he then was) who observed that “interrogatories are in many instances superior to discovery” for three reasons:[9]

• They ask a direct question, and therefore the questioner does not have to sort through hundreds or thousands of documents to find the answer;
• They must be answered, and are answered under oath;
• They may be utilised as evidence at trial, thus avoiding the need to call witnesses.

Hogan J applied these considerations to the facts of the case. In respect of a number of categories of disclosure, he reversed the decision of the High Court ordering discovery and held that interrogatories were the proper means by which Mr Tobin should seek to obtain the relevant information and that, in effect, discovery should be a remedy of last resort. Mr Tobin appealed to the Supreme Court.

Decision of the Supreme Court

Giving judgment for the Court, Clarke CJ took the opportunity to restate the general principles applicable to the law of discovery. First, he reaffirmed the importance of discovery in the Irish legal system, while acknowledging certain issues the plague it. Clarke CJ noted that discovery is necessary to ensure that a party will have all the material evidence needed to make their case, and to ensure that any case presented by the other side is not inconsistent with the documentation held by that party. For his own part, Clarke CJ observed that in his experience, discovery can “play a role in keeping parties honest”. He continued:

I emphasise all of these points precisely because it is important not to lose sight of the valuable contribution which discovery can make. It improves the chances of the court being able to get at the truth in cases where facts are contested. In that way, it makes a significant contribution to the administration of justice.[10]

The Court then moved to restate the law in light of this discussion. The Court reaffirmed the traditional test that the documents must be both relevant and necessary, albeit acknowledging that the requirement of necessity has become subject to much greater scrutiny. The Court further noted that a proportionality test has been adopted as part of the “necessity” requirement, and similarly that discovery may not be “necessary” if an alternative procedural mechanism exists the establish the same facts.[11]

Importantly, the Court rejected what it saw as an emerging position that relevance does not generate a presumption of necessity. The Court, on the contrary, held that “having regard to the importance which discovery can play” it should remain the legal position that “a document whose relevance has been established should be considered to be one whose production is necessary.”[12] On the basis of this conclusion, the Court went further and reversed the burden of proof that has obtained in discovery since the decision in Ryanair v Aer Rianta,[13] insofar as it applies to establishing “necessity”. It held that:

Where it is sought to suggest that the discovery of documents whose relevance has been established is not necessary, the burden will lie on the requested party to put forward reasons as to why the test of necessity has not been met.[14]

In relation to exhaustion of alternative remedies, including interrogatories, the Court expressly rejected the contention of the Court of Appeal that a party should be required to show that they have attempted alternative means of acquiring the information before seeking discovery. The Court held that, in many cases, discovery will be not be burdensome, and as such there should be no default rule in favour of an alternative remedy, but rather the onus would fall on the requested party to show why another remedy, such as interrogatories, would be less burdensome.

The Court then applied these principles to the facts. Clarke CJ took the view that, in reality, this was not a particularly exceptional case regarded the burden of the number of documents sought as “moderate”, particularly by comparison to commercial litigation.[15]

With that conclusion in mind, the Court considered whether it would be possible for the same information to be obtained by way of interrogatories. The Court took the view that there was little to be gained in this approach as the same amount of man-hours would have to be expended in searching the relevant documentation for the answers to the questions set out in interrogatories.[16]

On that basis, the Court overturned the decision of the Court of Appeal.

Analysis

The decision of the Supreme Court in Tobin appears to have poured cold water on the emerging procedural mini-revolution, led by Hogan J and Barniville J, in the use of interrogatories as an alternative to discovery. While the Court did leave the door open to the use of interrogatories as an alternative in an appropriate case, the criticisms of it as a general approach, as well as the general tenor of the judgment with respect to the value of traditional discovery, does appear to leave little scope for the sea-change contemplated by Hogan J in the Court of Appeal.

Clarke CJ’s argument that there is little to be gained in preferring interrogatories as the requested party will still have to search the same documents for answers to the interrogatories is well-made, but perhaps does not sufficiently address the benefits of interrogatories contended for by Kelly J. in Anglo Irish Bank Corporation Ltd v Browne. Kelly J there noted the potential for interrogatories to save the requesting party (as opposed to the requested party) time in searching the produced discovery for the relevant information, among other benefits.

Perhaps the most striking element of the Supreme Court’s judgment is the trenchant reassertion of the value of discovery in the legal system generally. The Court appears to be at pains to reclaim discovery from the acute and sustained criticism it has faced from many quarters. This is in stark contrast to the dark, despondent picture painted by the Court of Appeal; and while the Supreme Court does acknowledge the difficulties faced, its narrative can appear Panglossian by comparison. Thus, it is difficult to avoid the impression that the Court of Appeal’s instinct was to twist, while the Supreme Court’s was to stick.

It was against this backdrop that the Civil Justice Review Group delivered its Report in December 2020.

The Kelly Report

It would be difficult to overstate the radical overhaul of the law of discovery envisioned by the Kelly Report. Its analysis differs in almost every respect from that of the Supreme Court in Tobin, and one has the impression that its boldness is, at least in part, a reaction to the Supreme Court’s refusal to countenance significant reform of the area. In stark contrast to the Supreme Court’s insistence on discovery as an essential part of the administration of justice, the Report states that:

…the Review Group has come to the conclusion that this is an area where a radical change is necessary in order to dispose of a major obstruction to the administration of justice. The Review Group is of the opinion that legislation ought to be introduced to bring an end to the making of discovery of documents in the form in which it has been known since the 19th century.[17]

A number of submissions made to the Group identified the breadth of the test for relevance in Peruvian Guano[18] as the chief mischief to be addressed. Ms Justice Mary Irvine, on behalf of Court of Appeal judges, observed that Brett LJ. would be horrified that his judgment in Peruvian Guano “has been responsible for a huge, expensive para-legal industry”.[19] She recommended that the test be amended to require that the documents not only be relevant, but also “directly material” to the resolution of the issues in the case.[20]

Having considered these submissions, the Review Group recommended a course of action altogether more radical.  The Review Group concluded that the present discovery regime should be abolished and replaced with a procedure to be known as “production of documents”, based on the procedure of the courts at the Dubai International Finance Centre (“DIFC”).[21] The procedure in the DIFC, while based on the common law model, incorporates a number of civil law influences. As the Report sets out:

[The DIFC] procedure occupies a middle ground between the conventional approach to discovery at common law – under which a party must disclose documents it has or has had in their possession, custody or control that they intend to rely on or which adversely affects their own case or supports the case of the opposing party – and that of the civil law tradition – under which a party must disclose only those documents upon which they rely.[22]

Under the DIFC model, there is standard production of documents referred to in pleadings, or on which a party intends to rely. Parties may subsequently exchange requests to produce other documents, in a procedure similar to requests for voluntary discovery under Order 31. rl. 12 of the Rules of the Superior Courts. A party may object to such request on any of the following grounds:[23]

• lack of sufficient relevance or materiality;
• legal impediment or privilege;
• unreasonable burden to produce requested documents;
• loss or destruction of documents;
• grounds of commercial or technical confidentiality that the court determines to be compelling;
• special political or institutional sensitivity that the court determines to be compelling;
• considerations of “procedural economy, proportionality, fairness or equality of the parties” that the Court determines to be compelling”

There is then provision for court ordered production of documents where: “a party is of the view that a responding party’s decision to withhold documents is “not justified” or that the search carried out was not a reasonable search, that party may apply to court for a “production order.””[24]

Analysis and conclusions

While the procedure envisaged by the Review Group possesses many of the essential features of our present discovery regime, it marks a significant change by virtue of various shifts in emphasis. In particular, it assumes a default position against discovery beyond the “standard production” of documents mentioned in pleadings or on which a party intends to rely. It also appears to adopt the concept of “reasonable search” as opposed to the present requirement that it be within the party’s “procurement”, which was advocated for in a number of submissions to the Review Group as a means of limiting the burden of discovery. The suite of grounds on which a requested party may object to discovery, including an absence of materiality, also indicate a system that envisages a much reduced role for discovery.

Taken together, these reforms would mark a radical departure from the present law of discovery and significantly alter the manner in which litigation is conducted. These recommendations appear to stem from a very different premise to the Supreme Court in Tobin as to the importance of discovery to the overall administration of justice. Whereas the Supreme Court saw the advantages of discovery as still largely outweighing its disadvantages, the Review Group took the view that discovery represents a real and pressing threat to the administration of justice, and one that must be tackled by radical measures.

There are legitimate concerns about the far-reaching scope of the reforms proposed by the Review Group, and how it would affect ordinary litigants. For example, Mr Tobin would be very unlikely to have obtained any significant discovery under a DIFC model, and would have found it very difficult to further his claim. However, the recommendations of the Review Group remain a welcome contribution. Law reform is often excessively cautious and incremental in nature, and the occasional advancing of radical alternatives can allow us to see the full range of potential options. It is therefore hoped that, whether or not its recommendations are fully realised, the Kelly Report will contribute to ameliorating the present situation.

The views and opinions expressed in this article do not necessarily reflect the view of the Bar of Ireland. The purpose of Viewpoints is to provide a platform for members of The Bar of Ireland to explore, articulate and examine developments in the law.

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[1] Bray, The Principles and Practice of Discovery (London: Reeves and Turner, 1885), p.1, quoted in Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (3^rd ed. Round Hall, 2019) p. 1.

[2] Tobin v Minister for Defence, Ireland and the Attorney General [2018] IECA 230, para. 12.

[3] [2019] IESC 57.

[4] Report: Review of the Administration of Civil Justice (Dublin, 2020), available at http://www.civiljusticereview.ie/en/cjrg/pages/publications.

[5] In relation to relevance, see the classic statement of the law from Brett L.J. in Compagnie Financiere et Commericiale du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D 55, 63.

[6] [2004] 2 IR 20 (SC).

[7] (n. 2) at para. 16.

[8] Dunnes Stores v McCann [2018] IEHC 123, per Barniville J, at para. 36.

[9] Anglo Irish Bank Corporation Ltd v Browne [2011] IEHC 140, para. 12.

[10] (n. 3) at para. 7.5.

[11] (n. 3) at para. 7.13.

[12] (n. 3) at para. 7.16.

[13] [2004] 1 I.L.R.M. 241. The Supreme Court held, at p. 251, that the amendment of Order 31, rl. 12 in 1999 had shifted the burden on to the applicant.

[14] (n. 3) at para. 7.21.

[15] (n. 3) at para. 9.2.

[16] (n. 3) at para. 9.3. The Court did not completely close off the potential for interrogatories as an alternative, noting that they could, in an appropriate case, achieve much the same ends at a reduced cost.

[17] (n. 4) at p. 188.

[18] Compagnie Financiere et Commericiale du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D 55.

[19] (n. 4) at pp. 173-174.

[20] Ibid.

[21] (n. 4) at p. 188.

[22] (n. 4) at p. 184.

[23] (n. 4) at p. 185.

[24] (n. 4) at p. 185.