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knowledge 27 January 2020 |

Disputes: Supreme Court - Obligation on Parties to Engage Appropriately in Voluntary Discovery Process

The Supreme Court has confirmed that, when assessing the appropriate course to adopt in a discovery application, it is open to a Court to have regard to the approach of the parties at voluntary discovery stage.

In Tweedswood Ltd v Power1 Clarke CJ held that it followed from Tobin v Minister for Defence2 that there is an obligation on parties at the voluntary discovery stage to engage appropriately and constructively to attempt to agree reasonable discovery.  Significantly, Clarke CJ stated that it is open to a trial judge to have regard to the manner in which the parties engaged in the course of the voluntary discovery process when determining what course of action to adopt on a contested discovery application.  In an extreme case it may, indeed, be open to a judge to decline to order discovery at all or to require discovery in the full terms sought, simply on the basis of a particularly egregious failure on the part of one side or the other properly to engage in the voluntary discovery process. 

Even in less extreme cases, it may be appropriate for the Court to take into account, in a manner which is both reasonable and proportionate, the approach of the parties at the voluntary stage in assessing the proper course of action to adopt.  A trial judge can consider whether ordering appropriate discovery but leaving over the possibility of additional orders being subsequently made may represent a course of action which increases the chances of cost-effective discovery. In the latter context, a trial judge should be afforded a significant margin of appreciation by appellate courts.

Conclusions

This explicit confirmation by the Supreme Court of the potential consequences of failure by a litigant to engage meaningfully in the voluntary discovery process will be welcomed by lawyers and their clients alike as another step along the, admittedly long, path towards reducing the costs of discovery in Ireland.  By confirming that parties who refuse to act reasonably in their conduct of discovery will be penalised, Clarke CJ has removed another weapon from the arsenal of unnecessarily hostile litigants.

  1. [2019] IESC 93 (18 December 2019)
  2. [2019] IESC 57

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.