knowledge 9 December 2020 |

Overhaul of Discovery Procedures Recommended

The long awaited Review of the Administration of Civil Justice Report, just published (the “Review”), represents a watershed in Irish civil procedure.  Chaired by the former President of the High Court, Mr Justice Peter Kelly, the Review committee undertook a root and branch review of our civil procedures.  In respect of discovery, it recommends a complete overhaul of the existing discovery regime, including moving away from train of enquiry relevance based on the pleadings to a new standard of ‘relevant and material to the outcome of the proceedings’, with documents to be produced earlier and in a more streamlined manner.

In response to significant concerns expressed by the Court of Appeal in Tobin v Minister for Defence [2018] IECA 230 that discovery is increasingly presenting an undue burden and should be curtailed, the Supreme Court¹, overturning the Court of Appeal, emphasised the importance of discovery in our legal system and its role in keeping parties honest and uncovering the truth, as well as encouraging settlement.  Restating the factors to be taken into account in a discovery application, the Chief Justice considered in detail the need for proportionality in discovery but emphasised the onus on the producing party to demonstrate through evidence why the discovery sought in a particular case is unduly burdensome. The Review markedly favours the Court of Appeal analysis and urges a ‘culture change’, focusing on the burden of complying with discovery obligations and the significant costs involved and the need for a complete rethink of how to get to the core documents that are central to resolving claims.

The proposed new regime, inspired by Article 3 of the IBA Rules on the Taking of Evidence in International Arbitration and the Rules of the Dubai International Financial Centre Courts 2014, would abolish the concept of discovery as we know it, substituting a ‘Production of Documents’ requirement, that would require the parties to produce documents on which they rely, including publicly available documents, within a defined period after delivering their claim or defence, with provision for an entitlement to inspect documents.  A party would be entitled to request production of documents that are relevant and material to the outcome of the proceedings and the court could direct searching to be conducted in an efficient and economical manner, with the parties to seek to agree the parameters of any searches of electronic documents where possible, with recourse to either the court or a deputy master in default of agreement and with potential for costs penalties for parties who do not engage constructively in this process.

The producing party would provide a statement verified by affidavit that it had produced all documents in its possession, custody or control which had been requested and to which no objection was raised.  The party would also serve notice of objection to produce any specified documents on the basis of lack of materiality, legal impediment or privilege, unreasonable burden, loss or destruction, proportionality or fairness.  If disputed, the requesting party could apply for a document production order, with the producing party subject to a continuing production obligation in respect of such documents coming into its possession.  The court would also be entitled to order document production by non-parties, applying similar principles, and could also order production of documents by parties on its own initiative.

The existing ‘implied undertaking’ principles would be adjusted to permit parties to use documents that had been opened in court or with permission of the court, or by agreement with the producing party, but with corresponding scope for the court to restrict the use of documents on the application of a party or the person to whom the document belongs.

Analysis

The draft court rules accompanying the Review suggest that the production of documents on which parties intend to rely and those referenced in their pleadings will constitute standard production, with scope to seek further documents by way of a request to produce and, if necessary, a document production order.  There is much merit in this proposal, although plaintiffs – or claimants as they would be known – may baulk at the front-loading of the document production requirement prior to the defendant having to show its hand in its defence, or in the documents it produces.  This would indeed require a significant culture change.

The proposed new materiality standard is to be welcomed, as it would undoubtedly cut costs given the volume of documents that currently have to be discovered as relevant to categories sought, although they are not material to the issues in dispute.  Of course, the documents on which a party intends to rely are rarely in fact the documents on which the litigation turns because it is often the unfortunate or inconvenient communications on file that have to be produced under our current discovery procedures which encourage settlement or determine the ultimate outcome of the case.  While there is obviously a strong wish to move away from the existing discovery culture, certainly in complex fraud disputes or other cases to which such communications are centrally relevant, it would be important to ensure that any streamlining of the procedures does not prevent such material from coming to light.

The Review has intentionally sought as far as possible to avoid the need for primary legislation in respect of its proposed reforms more generally but acknowledges that it will be necessary primary legislation be enacted to (a) abolish the current entitlement to discovery, inspection and production of documents under the existing rules of court for the various jurisdictions and the associated case law and (b) specify the principles and policies underpinning a new remedy to be elaborated upon in new rules of court – to be designated 'production of documents' so as to make clear the departure from the regime it will replace – which will regulate the entitlement of parties to civil litigation to documents in advance of trial.

Practitioners will await proposals from the Minister for Justice arising from the Review with interest.