knowledge 4 October 2021 |

Discovery: Get it Right First Time Out

Discovery typically forms an integral part of the litigation lifecycle. It is important to get it right, as the consequences of getting it wrong can be significant. This applies equally to both making and seeking discovery. For example, in relation to the former, appropriate legal holds should be put in place early on (see our recent briefing here). In respect of the latter, timely and careful consideration should be given as to the categories and extent of discovery to be sought from the opposing party. This latter issue recently came before the courts in Brahami v Kelleher Chartered Surveyors Ltd.¹

In this case, limited discovery was agreed between the parties and the plaintiffs duly made discovery. However, as the proceedings progressed, the defendant was unsatisfied with the plaintiffs’ particulars of loss and at a late stage brought a motion seeking further discovery around this issue.

In bringing the application, the defendant relied on Order 31 rule 12 (11) RSC. This permits a person to apply to court to vary the terms of a discovery agreement or order. The court may do so where it is satisfied, amongst other things, that further discovery is necessary for disposing fairly of the case or for saving costs.

Discussion of the court

Hyland J refused the defendant’s application. Citing recent caselaw,² she said that further discovery under Order 31 will not be granted simply because the documents sought are relevant and necessary to the proceedings. Instead, the interests of all in the efficient disposition of proceedings requires that a party have one chance to seek discovery and must “have good reason for coming again”.

She said that in general, an interlocutory order can only be reopened where there is a good reason for doing so, such as a material change in circumstances. However, the court also retains the power to make an additional order for discovery “when it determines that an injustice would be done without such a direction.” However, this is the exception rather than the norm. The default position is that the discovery is as agreed or directed, and that some good reason must be given for revisiting that agreement or order. A party seeking additional discovery must “show good reason why the discovery was not originally sought”.

In making its assessment, the court must have regard to two potentially competing factors. On the one hand, it is in the interests of the efficient disposition of proceedings that parties are encouraged to seek discovery promptly. On the other hand, parties should be discouraged from seeking more discovery than strictly required to address the case as formulated and if a party can point to developments in a case since the making of discovery, it will often have good grounds for seeking to vary the discovery originally agreed or ordered.

Hyland J went on to say that the mere fact that the categories sought are different to those already sought is not a good reason per se for further discovery. It is rather that, if the new categories cover the same ground as the categories already obtained, it is even harder to obtain an order for additional discovery.

Analysis of the case before the court

Turning to the case at hand, Hyland J analysed the affidavit grounding the application. From that, she noted that the necessity for the additional discovery had become clearer following engagement by the defendant with its expert witness. She said that the ensuing letter to the plaintiffs seeking this new discovery provided reasons as to why the documents sought were necessary and relevant but that no reasons were given as to why the application was not made at the time discovery was originally sought or why the defendant was entitled to come again now.

She said that no material change in circumstance was identified – although she accepted that that was not a pre-requisite if some other good reason was identified. Equally, no developments in the case justifying a second bite of the cherry were identified. Again, she said that while this was not a necessary proof, it was possibly a good reason.

Hyland J concluded that the only averment that might conceivably be considered to be a reason for the failure to include this discovery the first time round was the reference to the defendant’s expert’s views here. However, no detail was given on this and no explanation provided as to why this view emerged so late on and not when discovery was originally agreed. In those circumstances, she said that no substantive reason had been identified at all, let alone any good reason.

She noted the defendant’s argument that additional discovery should be made here in the interests of justice. The defendant said that without this discovery, it would have to cross-examine witnesses without knowing in advance what material they had relied on, in particular the plaintiffs’ experts. It might have to issue subpoenas. This would put it at a disadvantage and undermine the interests of justice. However, Hyland J said that any disadvantage here was caused by the defendant’s own failure to take a necessary step and seek those documents at the appropriate time. That was not a compelling “interests of justice” argument.

In addition, she said that this disadvantage could be partly lessened by the opposing experts exchanging reports and meeting with each other. That would give the defendant visibility into the plaintiffs’ claim. Finally, the plaintiffs bore the burden of proof of showing that they had suffered loss and would have to vouch any losses in order to recover them. So, while the lack of documents might make the trial more unwieldy, it would not cause an injustice to the defendant.

Issue of delay

Finally, Hyland J briefly considered the role of delay in an application such as this. She said that the test was whether or not good reason had been shown for additional discovery. The test was not whether there had been delay or whether the application would cause delay in getting the case on.

However, she said that if the applicant had shown a good reason for seeking the new discovery, the court could consider delay in the exercise of its discretion. In such case, it was no answer to delay to say that the other side had also delayed since it was not their application. However, given that the defendant here had shown no good reason for the application, she did not need to deal further with the question of delay.

Comment

This case emphasises the need to take care when framing discovery requests, as the ability to mend your hand later on may not be available or at best may lead to unnecessary expense. It also illustrates the need for careful planning and sequencing of the various steps in litigation, such as retaining and consulting with expert witnesses at the appropriate time.