New Discovery Checklist

In a recent High Court Case, a helpful checklist was identified by Mr Justice Max Barrett to aid the court in considering a request for discovery; this should come as a welcome development for litigation practitioners and their clients.

This 2017 case of Walsh -v- The Health Service Executive follows other helpful cases in the area of discovery such as Framus -v- CRH (2004) and O’Driscoll – v- I.B.R.C. (2014).

However, it goes further than previous cases dealing with the principles of discovery in identifying a consolidated checklist to be considered by the court in determining whether or not to grant an application for discovery.

Mr Justice Barrett expanded on the principles set out by the Supreme Court in the Framus case, which established the principles of discovery applied by Irish Courts today, in creating the following consolidated checklist:

Discovery Checklist

1. Has the party seeking discovery accurately and precisely pinpointed the documents, or category of documents, required?
2. Has the party seeking discovery given good reason why the pinpointed documents, or category of documents, are required?
3. Are the documents sought on discovery relevant, directly or indirectly, to the matter in issue between the parties in the proceedings?
4. Has the party seeking discovery shown it is reasonable for the court to suppose that the documents contain information which may enable the applicant either to advance his own case or damage the case of his adversary?
5. Has the applicant for discovery avoided the following in respect of each document, or category of document, required:
   • mere speculation;
   • what has been traditionally characterised as a ‘fishing expedition’;
   • seeking discovery merely to find out whether documentation may be relevant;
   • seeking a general trawl through the other party’s documentation; and
   • utilising the discovery process as a tactic in the battle between the parties.
6. Is discovery of the document, or category of documents, required necessary for disposing fairly of the cause or matter or for saving costs?

Where the answer to any of the above questions is “no”, the application for discovery ought generally to be rejected; where the answer to each of the above questions is “yes”, the application ought generally to be ordered. However, doing so in each case is at the Court’s discretion.

7. Further to the above considerations, limitation may be imposed by the court where ordering discovery is oppressive or disproportionate in the following terms:
   • there are numerous documents of slight relevance and it would be oppressive to produce them all; and / or
   • there is a want of proportionality between the extent or volume of documents to be discovered and the degree to which the documents are likely to advance the applicant’s case or damage their opponent’s case, in addition to ensuring that no party is taken by surprise by the production of documents at a trial

If you have a query in relation to a litigation or dispute resolution matter, please get in touch with:

David Martin

Liam Collins

Harry Caulfield