Discovery back on the menu as Supreme Court delivers major judgment

Tobin v. Minister for Defence resoundingly reaffirms role of discovery in civil litigation

The Supreme Court has delivered a much-anticipated judgment in Tobin v. Minister for Defence [2019] IESC 57. The personal injuries case issued in 2014 was brought by an aircraft engineer who claimed to have been exposed to dangerous chemicals in the course of his employment dating back to 1990. He sought 15 categories of discovery and the High Court (McDermott J.) granted a significant amount of it. The defendants argued that the breadth of what was sought was disproportionate, burdensome, and oppressive. They also argued against the necessity for discovery, saying the plaintiff could seek interrogatories and admissions instead. 

The judgment of Hogan J. in the Court of Appeal on 9 July 2018 had profound and almost immediate effects in practice. Hogan J. described discovery as having caused a “crisis” by contributing significantly to costs and delays and held parties should use particulars, admissions and interrogatories so that discovery was the last, not the first, resort. Leave to appeal was granted by the Supreme Court essentially on the question of whether traditional discovery is appropriate in modern conditions. On 15 July 2019, the Supreme Court decisively held that discovery is an appropriate and useful tool in modern litigation. Here are the 7 major findings of the court as stated by Clarke C.J.:

1. The importance of discovery – Discovery affords the opportunity to present evidence having a bearing on matters in dispute, strengthening one’s case and damaging one’s opponent’s; but it also ensures that parties don’t present cases inconsistent with the true position; it keeps parties honest. 

2. Relevance establishes necessity – Relevance is for the party seeking discovery to establish, but once established, the default position is that discovery is also necessary. It is then up to the other party to displace this presumption by demonstrating any of range of factors including a disproportionate burden or the availability of suitable alternative means of proof at a lower cost. 

3. Pre-motion engagement – It is incumbent on any party seeking to argue discovery is excessively burdensome to set that out in reasonable detail in response to a request for voluntary discovery. If “full” discovery is argued to be unnecessary, the party must set out the relevant facts and any alternative means proposed to meet the legitimate requirements of the proper administration of justice. 

4. Alternative means of proof – There is no obligation on a party seeking discovery to demonstrate that alternative means of proof have been sought and exhausted. Clarke C.J. was somewhat sceptical of the suggestion that interrogatories should be used, particularly where the exercise of research and collection of information to answer interrogatories would be no less burdensome or costly than making discovery. 

5. Pleadings are paramount – Relevance is determined by the pleadings and plaintiffs who plead “the kitchen sink” and defendants who deny all elements of a claim or require proof of even uncontroversial elements have only themselves to blame for the scope of issues being wide and for the scope of the inevitable discovery which follows. 

6. Burden must be contextualised – Clarke C.J. considered the burden (alleged to require 10 staff and 220 hours of work) as being moderate (rather than extreme or severe), far from the upper end of the scale, and well-removed from the type of case that has led to judicial pronouncements about the problems discovery can cause for access to justice. Reference was made to cases where the cost of discovery could be up to 50% of the overall costs of the case and where the cost and burden of discovery could determine a party’s position on contesting a case or settling it, thereby affecting access to justice.

7. Confidentiality means higher scrutiny – Where discovery engages confidentiality issues, that is not a reason to refuse it but it, in such circumstances – as with an established burden – it should only ordered where it was clear the interests of justice in bringing about a fair result required such an order. 

The effects of this decision will likely be seen immediately. Parties seeking discovery will be emboldened to seek broader and more onerous discovery. Parties resisting discovery will seek to carve out further exceptions or to bring themselves within the established ones. This decision is not a full reversal of the change wrought by the Court of Appeal though. It is still legitimate to argue, for example, that an employee should seek their employment file by data access request instead, or that requests affecting to data of non-party (like a patient, other employee, or customer) should be carefully scoped to meet both the evidential need and the person’s privacy or confidentiality. 

The message from the Supreme Court is clearly one of engagement: engagement with clients from the outset by obtaining full and detailed instructions and documentation; engagement in the substance of proceedings by avoiding generic, catch-all, and traverse pleadings; and engagement with the other side by proper, reasonable, and considered pre-motion correspondence. The clearest part: discovery has stood the test of time and is here to stay.