Supreme Court makes Important Decision on the scope of Discovery
Despite attempts to limit the spiralling of costs of litigation and increase efficiency in the Irish Legal System, the costs of litigation remain significant and one area where costs can significantly escalate is in the area of discovery.
The recent decision of the Supreme Court in the case of Tobin v Minister for Defence (2019) IESC57 considers the issues of the potentially disproportionate and onerous obligations imposed on parties by virtue of the discovery process.
Background to the Tobin case
The Plaintiff, Mr Tobin, was employed as an aircraft mechanic in the Air Corps and alleged that during the time of his employment he was exposed to dangerous chemical solutions. Arising from this, Mr Tobin commenced personal injury proceedings in the High Court against the State.
The High Court
When discovery was sought Mr Tobin looked for 15 separate categories of documentation. The request was opposed by the State on the basis that it would take a number of staff a significant number of hours to review and categorise the documentation, many of which dated back to 30 years ago. It was, therefore, argued by the State that discovery of this nature would be disproportionate, excessive and burdensome. As an alternative, the State proposed that Mr Tobin should issue interrogatories (i.e. a series of questions) requesting the State to confirm if the chemicals that were cited in the pleadings were used by the Air Corps over the period in question. The High Court, however, held in favour of Mr Tobin and made an Order for Discovery of the categories sought by him, stating that it was necessary for and relevant to the fair disposal of Mr Tobin’s claim, notwithstanding the significant amount of work which would be required by the State to comply with the discovery. In addition, the High Court had argued that the use of interrogatories in this instance would be inappropriate, in circumstances where the State had denied that Mr Tobin had been exposed to the dangerous chemicals and put him on full proof of his claim.
The Court of Appeal
The State appealed the Order made by the High Court to the Court of Appeal. In July 2018, Hogan J in the Court of Appeal overturned the High Court Order holding that discovery should not be ordered unless all other avenues were exhausted and shown to be inadequate. This included the raising of interrogatories to obtain the information sought. He stated that Mr Tobin should first seek the information by way of interrogatories and could renew his discovery application if the information obtained was not sufficient.
The Supreme Court
Mr Tobin then appealed the Order of the Court of Appeal to the Supreme Court. In July 2019, a five Judge Supreme Court issued a unanimous Judgment overturning the Court of Appeal decision and reinstating the original discovery Order of the High Court.
In delivering Judgment, the Chief Justice Clarke held that the key elements in making discovery remain those of relevance and necessity and that a document whose relevance has been established should be considered to be a document whose production is necessary. However, he stated that, if it can be shown that compliance would be particularly onerous, a Court should consider the following factors when deciding whether discovery is truly necessary:
- The extent of the burden which compliance is likely to place on the party who is making the discovery
- The extent to which it might reasonably be expected that the documentation concerned would play a reasonably important role in the proper resolution of the proceedings; and
- The extent to which there may be other means of achieving the same end at a reduced cost
Mr Justice Clarke further noted that, where it had been suggested that the discovery of relevant documents was not necessary, that burden lay on the requested party to put forward reasons as to why the test of necessity had not been met and, furthermore, to suggest an alternative means of obtaining the relevant information which was said to be less burdensome, but equally effective. He went on to add that the requesting party does not have to establish that they have exhausted all other procedures available to establish relevant facts before discovery could be sought. Mr Justice Clarke further held that it was appropriate for a Court to take into account the manner in which a case had been pleaded not only for determining relevance, but also to assess the extent to which a party who objects to making discovery, on the grounds that it is onerous, has contributed to that situation by the manner in which they have pleaded their case.
Effect of the Tobin Decision
Whilst the Supreme Court reiterated that relevance and necessity remained the key components for considering discovery, the Tobin decision introduces other factors to be considered, particularly in cases where extensive discovery requests are sought. Most significantly, the party refusing discovery and citing that the discovery is excessive or overly burdensome must now set out reasons for refusal and suggest an alternative means to achieving the information sought.
This should, therefore, serve as a reminder to practitioners that the relevance of documentation for discovery is determined by reference to the proceedings and so parties should pay particular attention to this when pleading their case, as a very broadly pleaded case is likely to lead to the imposition of an onerous discovery obligation.