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26 March 2019
Businesses with experience litigating in Ireland will be familiar with the discovery process and the onerous obligation to disclose all relevant documents which are in their power, possession or procurement. In an age when the volume of electronically stored information continues to increase exponentially, the costs and time involved in complying with discovery orders can often be disproportionate; however, change may be on the horizon.
On 14 May 2019 the Supreme Court will hear the appeal in Tobin v Minister for Defence, in which Justice Hogan in the Court of Appeal described the discovery process in Ireland as nothing short of a crisis. The Supreme Court has stated that it will consider "the proper overall approach to discovery in modern conditions".
Reform of discovery procedures also ranks high on the agenda of the Review of the Administration of Civil Justice (the review group), a working group established in March 2017 to make recommendations to the Irish government regarding changes to the civil justice system.
The Irish government recently pledged its support of an initiative to promote Ireland globally as an international legal services hub. The initiative, propelled by the Irish legal community, suggests that court procedures should be reformed to make commercial dispute resolution in Ireland faster, more predictable and more cost-effective, and notes, in particular, that the time and cost associated with discovery should be reduced.
In this context, this article discusses the decision in Tobin and its forthcoming appeal.
In the Court of Appeal judgment in Tobin, Hogan held that in cases where discovery is likely to be extensive, no discovery order should be made until all other avenues have been exhausted and shown to be inadequate. In respect of certain categories of document, his view was that the information sought may not have been required had the parties first sought to narrow the issues in dispute by using litigation tools, such as interrogatories and a notice to admit facts.
The facts in Tobin demonstrate the disproportionate nature of the current system, with the High Court ordering the minister to discover 13 categories of document, dating back to 1990, for what Hogan had described as "a routine personal injuries case".
In granting leave to hear the appeal, the Supreme Court acknowledged that "there may be a case for arguing that the full breadth of discovery which has been traditionally ordered may be disproportionate in modern conditions".
The Tobin judgment is clearly an attempt by the judiciary to urge reform of Irish discovery practice within the scope of the current rules. However, while interrogatories can assist in preparing for cross-examination and in getting to know a case, they may not completely eliminate the need for discovery and, in the absence of a more fundamental reform of the rules, there is a risk that Hogan's suggestion that these and other procedural avenues are pursued may in practice simply serve to add a further layer of litigation costs. A more tailored approach would be preferable if the discovery burden on litigants in Ireland is to be reduced.
Tobin may prove to be a watershed moment on the road to overall reform in this jurisdiction. It is hoped that the outcome of the Supreme Court hearing on 14 May 2019 (as well as the completion of the review group's work) will pave the way for an overhaul of the discovery process which will help to promote Ireland as a jurisdiction of choice for effective and cost-efficient commercial dispute resolution.
For further information on this topic please contact Julie Murphy O'Connor or Claire McLoughlin at Matheson by telephone (+353 1 232 2000) or email (email@example.com or firstname.lastname@example.org). The Matheson website can be accessed at www.matheson.com.
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Julie Murphy O'Connor