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Discovery Process Reaches Crisis Point: Supreme Court to Consider Reform
Clients with experience of litigating in Ireland will be familiar with the discovery process and the onerous obligation to disclose all relevant documents which are in their power, possession or procurement. In an age when the volume of electronically stored information continues to increase exponentially, the costs and time involved in complying with discovery orders can often be disproportionate. The good news is that change may be on the horizon.
On 14 May 2019, the Supreme Court will hear the appeal in Tobin v Minister for Defence, in which Hogan J in the Court of Appeal described the discovery process in Ireland as nothing short of a “crisis”. The Supreme Court has stated that it will consider “the proper overall approach to discovery in modern conditions”.
Reform of discovery procedures also ranks high on the agenda of the Review of the Administration of Civil Justice, a working group established in March 2017 to make recommendations to the Irish Government for changes to the civil justice system in Ireland (the “Review Group”).
The Irish Government recently pledged its support for an initiative to promote Ireland globally as an international legal services hub. The initiative, propelled by the Irish legal community, suggests that court procedures should be reformed to make commercial dispute resolution in Ireland faster, more predictable, and more cost-effective, noting in particular that the time and cost associated with discovery should be reduced.
In this context, we discuss the decision in Tobin, its forthcoming appeal, and comparable reform already underway in England and Wales.
Where we are: Tobin v Minister for Defence
In the Court of Appeal judgment in Tobin, Hogan J held that in cases where discovery is likely to be extensive, no discovery order should be made until all other avenues have been exhausted and shown to be inadequate. In respect of certain categories of documents, his view was that the information sought may not have been required had the parties first sought to narrow the issues in dispute by using litigation tools such as interrogatories and / or a notice to admit facts.
The facts in Tobin demonstrated the disproportionate nature of the current system, with the High Court ordering the Minister to discover 13 categories of documents, dating back to 1990, for what Hogan J described as “a routine personal injuries case.”
In granting leave to hear the appeal, the Supreme Court acknowledged that “there may be a case for arguing that the full breadth of discovery which has been traditionally ordered may be disproportionate in modern conditions.”
Reform in England and Wales
Any future proposals for reform of the Irish rules and procedures will have the benefit of being able to consider developments in this area across the Irish Sea.
Since 1 January 2019, a two-year pilot disclosure scheme has been in place in the Business and Property Courts in London, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle. It is effectively a test-run of significant changes to the disclosure (ie, discovery) regime in England and Wales, proposed by a working group of lawyers, judges and legal experts who identified that the regime under Part 31 of the Civil Procedure Rules (“CPR”) was no longer fit for purpose, having regard to the sheer volume of electronic data that may fall to be disclosed. Part 31 CPR has thus been completely redrafted in an effort to produce a “cultural change” in how parties litigate, with a more tailored approach to discovery envisaged.
The key elements of the pilot scheme are as follows:
- Parties must make ‘initial disclosure’ of the key documents (i) relied upon in preparing their statements of case, and (ii) that are necessary to enable the other party to understand the case they have to meet;
- If further disclosure is sought, the parties must complete a ‘Disclosure Review Document’ (“DRD”) listing the key disputed issues which the court will need to determine with some reference to contemporaneous documents; and
- At the first case management conference, the parties must ask the court to consider which of five ‘extended disclosure’ models should apply to each / all of the issue(s) for disclosure. The models (A to E) range from an order for disclosure of known adverse documents (Model A), through to the widest form of disclosure requiring the production of documents which may lead to a train of inquiry (Model E).
The proposed changes will demand early co-operation between the parties in agreeing the issues for disclosure and greater case management by the courts – sentiments which were echoed by Hogan J in Tobin. The pilot also reflects technological advancement in requiring the parties to set out in the DRD reasons for deciding against the use of technology assisted review (“TAR”), and in providing that the court may give directions on the use of TAR.
Practitioners have expressed a concern that the new regime requires frontloading of costs and greater ‘read-in’ time from judges when court resources are already strained. Another concern is that important and relevant documents will be missed. It has therefore been suggested that any similar reform in Ireland should include a positive obligation to disclose documents which are material to the issues and / or the outcome of the case.
The Tobin judgment is clearly an attempt by the judiciary to urge reform of Irish discovery practice within the scope of the current rules. However, whilst interrogatories can assist in preparing for cross-examination and in getting to know a case, they may not completely eliminate the need for discovery and, in the absence of a more fundamental reform of the rules, there is a risk that Hogan J’s suggestion that these and other procedural avenues are pursued may in practice simply serve to add a further layer of litigation costs. A more tailored approach, akin to the pilot regime in England and Wales, would be preferable if we are to reduce the discovery burden on litigants in Ireland.
Tobin may prove to be a watershed moment on the road to overall reform in this jurisdiction. It is hoped that the outcome of the Supreme Court hearing on 14 May 2019 (as well as the completion of the Review Group’s work) will pave the way for an overhaul of the discovery process which will help to promote Ireland as a jurisdiction of choice for effective and cost-efficient commercial dispute resolution.