"The Discovery process compels pre-trial disclosure in civil proceedings of relevant documents in the possession or control of another party, or occasionally a non-party". [Civil Procedure in the Superior Courts, Delaney and McGrath, Roundhall Sweet and Maxwell, 2001].

The most significant purpose of discovery was set out recently by Justice Geoghegan in the Supreme Court where he indicated that the discovery process was not to enable the settlement of a case but to provide a party with the necessary ammunition to fight a case. Marie Taylor .v. Clonmel Healthcare Limited [2004 1 IR 169].

When can an Application for Discovery be made?

An application for discovery can be made when the pleadings have been exchanged in a case. i.e. after the Statement of Claim and Defence have been served. Order 31, rule 12(4)(4) provides that an application for discovery to the courts shall not be made later than 28 days after the case has been listed for trial.

If discovery cannot be made voluntarily, an application for discovery can be made to the Master of the High Court, which is the court of first instance in all applications in the High Court. Decisions of the Master can be appealed to the High Court and then to the Supreme Court.

The Rules of Discovery

The rules of discovery are set out in Order 31, Rule 12 of the Rules of the Superior Courts. Amendments have been made to Order 31, Rule 12 which were implemented by Statutory Instrument 233 of 1999: Rules of the Superior Courts ( No. 2 ) ( Discovery ), 1999, which came into effect on the 3rd August 1999 ("the New Rules"). The amendments to the rules were motivated by the desire to discourage very general requests for discovery or ' fishing expeditions', which had resulted in time wastage and unnecessary costs for parties engaged in litigation.

Under the New Rules, an application for discovery must comply with the following requirements:-

  • A written application seeking voluntary discovery is required which must specify the precise category of documents sought and which must furnish the reasons why each category of documents is required to be discovered. Ref: 4, Order 31, Rule 12 (4) (1) (a).
  • The Notice of Motion must specify the precise categories of documents in respect of which discovery is sought. Ref: 5, Order 31, Rule 12 Section 1 (1)
  • The Grounding Affidavit must verify that the documents sought are necessary for disposing fairly of the cause or matter or for saving costs and must furnish reasons why each category of documents is required to be discovered. Ref: 6, Order 31, Rule 12, Section 1 (1) (a & b).
  • Notwithstanding the introduction of the New Rules, a provision remains where, by reason of the urgency of the matter, the consent of the parties, the nature of the case or any other circumstances which to the court seem appropriate, the court may make an Order as appears proper, without necessity for such prior application in writing. Ref: 7, Order 31, Rule 12, Section 4 (1).

Case Law

The courts initially applied the New Rules strictly, as in the case of Swords .v. Western Proteins Limited [ 2001 1 IR. 324 ]. In that case, Morris P. stated, " if the Letter of Application (does not) comply with the rule then the issue is not identified and there is no power vested in the Master to make a determination on any issue".

This case was over-ruled by the Supreme Court in Taylor –v- Clonmel Healthcare Limited [ 2004 1 IR. 169 ].The judgment provides that a party is only bound to discover documents as are "material to the issues". This requires the party requesting discovery to make it's own subjective assessment as to what documents are " material to the issues" in the case. The decision represents a rowing back from the more technical interpretation of the New Rules which had previously been adopted. The implication of this judgment is that a very general request for discovery will no longer be automatically refused under the New Rules as the court can assume that what is being requested are documents which are "material to the issues".

Practical Implications of the Case Law

Whilst the Taylor decision represents a more lenient interpretation of the New Rules, it does not in practice effect the way in which discovery applications are dealt with by the Master of the High Court. It is still necessary for any party making an application for discovery to comply with the minimum requirements of the New Rules to secure a successful outcome in this court. If a party is unhappy with the decision of the Master, it is open to it to appeal the decision to the High Court, which may not take as strict approach as to what documentation can or cannot be discovered.

An application for discovery to the Master must set out the categories of documentations sought together with the reasons why each category of documents is sought. The Master will apply the tests of relevance and necessitywhen considering the reasons provided and whether a document should be discovered.

  • Relevance

    The Supreme Court has relied on the case of Compagnie Financiere .v. Peruvian Guano Company [1882 11 QBD 55 at 63] in determining the relevance of documents. In that case L.J. Brett held,

    "It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary".
  • Necessity

    Along with relevance, the court must determine that the documents requested are necessary. Generally the courts will hold that if a document is permitted on the grounds of relevance it will usually be necessary.

Applications for Discovery in the Master's Court

The Master has identified certain principles to be applied when determining a Discovery application:-

  • Fishing expeditions or general discovery will not be granted.
  • Only documentation relating to material facts will be discovered.
  • Documentation relating to the material facts will not be discovered if it is available to the requesting party through other sources.

Material facts have been described by the Master as, "those facts which are the essential ingredients of the cause of action. Failure to prove such a fact is fatal to the proceedings, Quigley .v. Dun Laoghaire County Council & Others,[ Unreported, Master Honohan – 3rd May 2002].

Conclusion

The rules relating to discovery have undergone significant change since the implementation of Statutory Instrument 233 of 1999. The courts initially adopted a strict and technical interpretation of the New Rules. The Master of the High Court will apply strict tests in determining any application and will in particular only allow those documents which in his view are relevant and necessary to a parties claim. The High Court and Supreme Court have taken a less strict interpretation of the New Rules. The case law shows that these courts will allow documents to be discovered which may not be directly related to the material facts of the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.