Murdoch's Term of the Week: Discovery

Discovery is a core aspect of litigation which involves the disclosure and inspection of relevant documents by both sides to allow them to ready their respective arguments. Discovery may be voluntary or court-ordered, and is useful as it encourages parties to settle.



The process whereby the parties to an action disclose to each other on affidavit all documents in their possession, custody or power, relating to matters in issue in the action. Final documents which have been approved by a professional adviser for the sight of his client (but remaining in the possession of the adviser) are documents within the “power” of the client and are discoverable in a party / party discovery: Bula Ltd v Tara Mines Ltd [1994 SC] 1 ILRM 111. In exceptional circumstances, a judge may order a party to discover a document, notwithstanding that the document is not in its power ie the party has no enforceable legal right to obtain the document: Johnson v Church of Scientology [2001 SC] 2 ILRM 110.

The entitlement to seek discovery only arose when the issues between the parties had become clear as a result of a defence being filed: National Educational Welfare Board v Ryan [2007] IEHC 428; [2008 HC] 2 IR 816. In High Court actions, discovery is obtained by application by one party to the other in writing requesting that discovery be made voluntarily; the court will only order discovery where the other party has failed refused or neglected to make such discovery or has ignored such request: RSC O.31 r.12 as substituted by Rules of the Superior Courts (No 2) (Discovery) 1999 (SI No 233 of 1999).

The High Court has held that this rule imposes a clearly defined obligation on a party who is seeking discovery, to pinpoint the documents or category of documents required and to give the reasons why they are required: Swords v Western Protein Ltd [2001 HC] 1 ILRM 481; [2001 HC] 1 IR 324. The Supreme Court has held that the applicant for discovery must discharge the prima facie burden of proving that the discovery sought “is necessary for disposing fairly of the cause or matter” and that the applicant’s affidavit must, in addition, “furnish the reasons why each category of document is required”: Ryanair plc v Aer Rianta cpt [2004 SC] ITLR - 12th Jan 2004; [2004 SC] 1 ILRM 241.

Where documents have been identified as being relevant to the issues between the parties, the extent of the discovery must be confined to what is necessary for the fair disposal of the case and this can only be decided in the issues and facts of the case in question: Framus v CRH [2004 SC] 2 IR 20; [2004 SC] 2 ILRM 439.

Any discovery sought and agreed between the parties must be made in like manner and form as if directed by order of the court. Where the parties have consented to an order for discovery, the Court has jurisdiction to order the discovery: Greene v Instruelec Services Ltd [2001 HC] 1 IR 653; [2002 HC] 1 ILRM 237. An application for discovery must not be made later than 28 days after the action has been set down or 28 days after is has been listed for trial.

Failure to comply with an order for discovery may lead to the action being dismissed or the defence being struck out: RSC O.31 r.21. This rule exists to ensure that parties to litigation comply with orders for discovery. It does not exist to punish a defaulter, but to facilitate the administration of justice by ensuring compliance with the order of the court: Murphy v J Donohoe Ltd [1996 SC] 1 ILRM 481. An order for discovery is complied with by an affidavit of discovery. There is no rule in Irish law that an affidavit of discovery was to be considered as conclusive and incapable of ever being the subject of cross-examination: Duncan v Governor of Portlaoise Prison [1997 HC] 1 IR 558. To hold otherwise would mean that the court would be prevented from investigating the accuracy or adequacy of an affidavit of discovery and would have to accept at face value whatever was averred therein (ibid Duncan case). See RSC O.40 r.1.

The non-disclosure of a document in the discovery process and prevents the party who made discovery, from subsequently relying on that document at the hearing: Aranwell v Pura Food Products [2004 HC] 2 ILRM 147.

Also in civil proceedings, documents may be discovered which were brought into being in the course of investigations by the gardaí of the incident which gave rise to the civil proceedings: Walsh v Peters [1993 CC] 11 ILT & SJ 182 applying DPP v Holly [1984] ILRM 149. A person is entitled to discovery of any correspondence which had come into being subsequent to his dismissal from employment, provided that such correspondence is relevant to the matters in issue: Tobin v Cashell [1998 SC] ELR 277. It is not necessary in a discovery application for the court to adjudicate on the admissibility of the proposed evidence: Von Gordon v Helaba Dublin Landes Bank Hessen [2003 HC] FL 8407.

The Court is generally disinclined to order discovery where the parties had agreed to mediation due to the additional costs and burdens involved: Mandraki Associates Ltd v Shell International [2006] IEHC 316; [2007 HC] 2 IR 41.

The High Court has stated that a party is entitled to some reasonable leeway between the cut-off date up to which the schedules of discovery were prepared and the actual date of swearing of the affidavit of discovery: Moorview Developments Ltd v First Active plc [2008] IEHC 274; [2009 HC] 2 ILRM 262.

In Northern Ireland, it has been held that there is a distinction made between discovery in judicial review (qv) and in plenary actions: In re Glor na nGael [1991 HC of J] ITLR (19 Aug).

The notes made by a judge during the hearing of a case do not form part of the record of the case and cannot be the subject of an order for discovery: O’Q v Judge Buttimer [2009] IEHC 25; [2009 HC] ITLR (30 Mar).

For discovery and inspection of documents in commercial proceedings (qv), see RSC O.63A r.6(1)(vi) inserted by Rules of the Superior Courts (Commercial Proceedings) 2004 (SI No 2 of 2004). See McKenna v Best Travel Ltd [1995 HC] 2 ILRM 471; Brooks Thomas Ltd v Impac Ltd [1999 SC] 1 ILRM 171; F McK v F C (Proceeds of Crime) [2001 SC] 4 IR 521. See Commissions of Investigation Act 2004 s.16(4).

See Discovery and the need for strict compliance with the 1999 Rules” by Ian Kavanagh BL in Bar Review (March 2001) 273; Discovery in the Master’s Court” by William Abrahamson BL in Bar Review (Dec 2002) 360; DiscoveryChannels” in Law Society Gazette (Dec 2003) 18. See “Voyage of Discovery by solicitor Eoin Dee in Law Society Gazette (Mar 2002) 16. On discovery and computer data see “Concealed Weapons” by Andy Harbison in Law Society Gazette (June 2006) 20; “Electronic Discovery - Taming the Beast” by Roderick Bourke solicitor in Bar Review (Feb 2008) 9. For draft - letter of discovery, notice of motion, and affidavit, see “The changing face of discovery by barrister Andrew Fitzpatrick in Law Society Gazette (Apr 2003) 14. [Bibliography: Barron; Cahill E; Dee; Abrahamson, Dwyer & Fitzpatrick; Glanville; O’Neill.]




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