Obligation to Engage at the Voluntary Discovery Stage

The Supreme Court has confirmed that it is open to a judge to take into account the approach of the parties at the voluntary discovery stage when assessing the appropriate course to adopt if a discovery application comes before the Court.

What is ‘Discovery’?

Discovery is a pre-trial process that involves each party disclosing the existence of all documents that are relevant to the proceedings. Discovery is intended to ensure that each party knows before the trial the case it has to meet.

Discovery is carried out on the basis of agreed or Court ordered categories of documents. The Categories of Documents must be relevant to the issues in dispute and must, in the eyes of the Court, be necessary to decide fairly on the case and save costs. Relevance is used in a broad sense by the Court and includes every document which contains information which may either directly or indirectly enable either party to advance its case.

What is a ‘Document’?

A ‘Document’ is widely interpreted and covers everything from physical and electronic files, letter, telephone recordings, emails, texts, messages, handwritten notes, tapes or disc, photographs etc.

What is ‘Voluntary Discovery’?

Voluntary Discovery occurs when the parties agree to the categories of documents to be disclosed and a window of time in which disclosure should take place. If an agreement can’t be reached, an application to the court is sought and the Court decides the categories of Discovery to be made.

The importance of the discovery process during litigation was highlighted by the Supreme Court in overturning the Court of Appeal’s decision in Tobin v Minister of Defence (15 July 2019) IESC 57. The Supreme Court turned its attention to the voluntary stage of discovery in Tweedswood Limited v Power (18 December 2019) IESC 93.

In Tweedswood, Clarke CJ held that it followed from Tobin that there was an obligation on parties at the voluntary discovery stage to attempt to agree reasonable discovery in a way that is both appropriate and constructive. Importantly, Clarke CJ stated that it is open to the trial judge to take into account the way in which the parties engage at the voluntary discovery stage in order to decide how to proceed on a contested discovery application. Indeed the Court noted that in extreme cases it may be open to a judge to decline to order discovery at all or require full discovery, simply on the basis of a particular failure on the part of one side or the other to properly engage in the discovery process.

However, Clarke CJ did not go so far as to say a trial judge must consider the approach of the parties in all discovery applications rather that it will be a matter for the trial judge to consider what is the best route to achieve a cost-effective discovery.

In conclusion, the Supreme Court has confirmed that parties who refuse to engage meaningfully or reasonably in the voluntary discovery process will be penalised. This confirmation will be welcomed by solicitors and their clients alike as it is a step toward reducing the cost of discovery in Ireland.

For more information please contact Liam Collins or David Martin