Ireland: Data Access Requests And Discovery - Recent Irish Judicial Development

Last Updated: 15 March 2018
Article by Brian Clarke, Kyle Nolan, Ruairí Geoghegan and Rachel Kemp

In a recent decision, the Irish High Court held that a court may order a person to make discovery of personal information that he or she has a right to obtain from a third party on foot of a data access request made pursuant to data protection laws. This judgment is particularly significant for individual litigants, especially where those parties are commencing discovery1.


The case concerned a claim by a plaintiff company as against the defendant, a former employee, for injunctive relief and damages for breach of contract. The plaintiff company claimed that the defendant, who had taken up employment with another firm operating in the same field, assisted with the recruitment of other employees of the plaintiff and supplied the competing firm with confidential information concerning the plaintiff's business, including know-how and trading strategies.

The plaintiff had sought discovery of documents relating to the defendant's interactions with the competing firm and a recruitment company through which he was recruited, including documents that he could obtain on foot of a data access request.

The plaintiff argued that, as the defendant had a right as a matter of European law to obtain such documents, in particular, documents relating to any interview process conducted by a prospective employer, those documents ought to be discovered by him.


The Court considered that it was long established that documents ought to be discovered if they are relevant and necessary, provided that the request is proportionate and not unduly oppressive. It also acknowledged that a document is capable of being the subject matter of an order for discovery if the document, while not in the possession of a person, is one that he or she has a legal entitlement to procure or obtain.

In this respect, it was noted that, although the documents sought were likely to be held in offices in England, it was agreed between the parties that a person has a right to seek and inspect such personal data under the Data Protection Directive (EU Directive 95/46EC) (the "Directive") and the English implementing legislation (Data Protection Act 1988).

While the defendant argued that it was wrong to compel a person to use data protection processes to achieve a purpose which would be more properly achieved by way of non-party discovery, the Court was not persuaded by that argument. Ultimately, the Court recognised that the defendant had a legally enforceable right to seek certain documents. While the Court acknowledged that discovery must not be permitted to be oppressive and must be proportionate and that, in certain circumstances, non-party discovery may be more appropriate, there was no evidence of such oppression or disproportionality here.

The Court also dismissed the defendant's related argument that the request for discovery was an attempt to use data protection law and the Directive for a collateral purpose, noting that the primary purpose of the Directive did not matter if the effect of the legislation was to grant a person a right to certain information.

The defendant also sought to rely on a previous High Court decision in Glaxo Group Ltd & Anor v Rowex Ltd2 in which Mr Justice Barrett commented that a court ought not to compel inappropriate disclosures of personal data. However, the judge in the present case was not satisfied that, in this instance, documents relating to the course of engagement between the defendant, the competing firm, and the recruitment company leading up to his employment, were confidential or highly personally sensitive.

Although the Court agreed that documents obtainable by way of a data access request can be the subject of a discovery order, it directed that the defendant make discovery of documents that are "reasonably available to him" by way of a data access request and that this would require him to take "reasonable steps" to procure the documents by such means. In this regard, the Court recognised that the defendant may be unable to obtain such documents without challenging a refusal of access by the competing firm and/or the recruitment company, be it through a court or the relevant data protection body. The Court did not, however, provide any determination as to how far the defendant was required to pursue an individual request.


The interplay between data access requests made under the Irish Data Protection Acts 1998 – 2003 and litigation is coming more and more into focus. Data access requests are frequently used by individual litigants as a means of obtaining information prior to instituting legal proceedings or, prior to discovery. While there is nothing novel in holding that a party may be obliged to discover documents in respect of which he or she has a legally enforceable right to obtain, the recognition that such an obligation can extend to documents that he or she can obtain by way of a data access request is a noteworthy development.

The decision, which is currently the subject of an appeal, has potentially far-reaching consequences for individuals who are parties to litigation in that their obligation to discover documents has now arguably been broadened. While the Court sought to limit a person's obligations in this respect to taking "reasonable steps" to obtain such documents, no further guidance was provided in this respect. While this question will likely be assessed on a case–by-case basis, the lack of certainty may cause difficulty for some individual litigants.

The decision is also significant from the perspective of a party that is considering seeking non-party discovery, the costs of which are required to be borne by that party. Consideration should be given, in the first instance, as to whether documents are available to an individual who is a party to litigation by means of a data access request. Given that the Judge expressed a preference for making an order for discovery against a party to the proceedings, as opposed to engaging in the costly and cumbersome process of non-party discovery, there would appear to be some judicial support for this approach.

We understand that the Data Protection Commissioner has recently commented that compelling a person to exercise his or her right to obtain personal information in this manner would appear, on the face of it, to be at odds with a fundamental right to.


1. Susquehanna International Group Limited v Needham [2017] IEHC 706

2. [2016] IEHC 253

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions