Limiting the Burden of Extensive Discovery

A July 2018 judgment of Judge Hogan in the Court of Appeal may further restrain the ability of parties to seek extensive discovery in litigation matters.

In the case of Tobin -v- The Minister for Defence, Judge Hogan ruled that the courts ought to refuse orders for extensive discovery in circumstances where the applicant has not exhausted all other avenues and shown them to be insufficient. The Judge went as far as to say there is currently a “crisis” in the discovery process, with disproportionate “burdens, costs and delays” being imposed on litigants and the wider legal system.

The discovery order initially granted in the High Court against the Minister would have required locating and cataloging vast quantities of hard copy documents dating back some 28 years, which Judge Hogan agreed would have created a very considerable burden on the Department. He also suggested that the size of such larger organisations and the resources at their disposal ought not to be taken into account when granting extensive discovery applications.

The result of this case is likely to be welcomed by legal professionals who are familiar with the arduous nature of the discovery process. However, the judgment also increases the duty on litigants to take a “cooperative approach” and to seek discovery by other means such as through consent, interrogatories, and notices to admit facts.

For further information contact Helena Walsh