Chief Justice Clarke in the recently decided Tweedswood Ltd v Power [2019] IESC 93 has determined the following principles in relation to the voluntary discovery process in litigation proceedings:

  1. Parties to a dispute have an obligation at the voluntary discovery stage to engage appropriately and constructively to attempt to agree reasonable discovery. This was first set out in Tobin v Minister for Defence [2019] IESC 57.
  2. A trial judge has wide discretion to consider the manner in which the parties engaged with each other during the voluntary discovery process, when deciding to grant or refuse applications for discovery.
  3. The trial judge is permitted take into account the cost effectiveness of a discovery order on a case by case basis.

What is Discovery?

‘Discovery’ is when parties to a dispute inspect each other’s documents. ‘Documents’ is widely interpreted and covers everything from physical and electronic files, letters, phone recordings, emails, text messages, etc.

There are two forms of discovery – voluntary discovery and court ordered discovery. Voluntary discovery occurs when the parties agree to the categories of documents to be disclosed and a window of time within which disclosure will take place. This can be a timely process, as the applicant must draw up detailed particulars of what types of documents they require and the reason for same. The other party must carefully review and reply to this request, setting out objections where relevant. Once an agreement has been made, it can be a long and cumbersome process to review and collate the documents to be discovered. If agreement cannot be reached, an application to the court is usually sought and the court determines the categories of discovery to be made.

Discovery can be time consuming and costly as parties gather and review voluminous documents. It has been criticised as a barrier to justice given the resources required to comply with a discovery order and has often come under scrutiny by the courts.

Why is Discovery so Important?

Discovery aids litigants to build their respective cases, gathering relevant evidence to support their case. As each party is given an insight into the type of evidence the other will rely on in court, the discovery process, assists the administration of justice. The documents sought must be both relevant to the dispute and necessary for the party seeking them in order to advance a claim or a defence as the case may be. Some documents which are linked to third parties may be omitted as privileged documents and although they will not be disclosed, they must be identified.

Tweedswood Ltd v Power Discovery Ruling

The latest judgment in relation to discovery was in a dispute over the purchase of a property in Co. Wexford. An appeal came before the Supreme Court related to the parties’ attempts at obtaining discovery and the trial judge’s capacity when granting discovery.

In the proceedings before the High Court, Mr Power initially sought voluntary discovery of 40 categories of documents from Ulster Bank, and ultimately amended his request to include 69 categories of documents.  Ulster Bank submitted that the categories agreed in accordance with their reply to the first discovery request was sufficient and that it would be a waste of resources to have to reply to the amended request.

The High Court refused Mr Power’s application for discovery, holding that the agreed discovery on foot of Ulster Bank’s letter of 8 April 2013 was sufficient for Mr Power to advance his case fully. The High Court held that after the agreed discovery had been exchanged, Mr Power would be entitled to apply for discovery of other ‘narrow categories’ of documents he may consider necessary for a fair hearing of his case. The Supreme Court upheld this decision and held that the trial judge acted within his powers in declaring that the discovery agreed by Ulster Bank was sufficient.

Clarke CJ referenced and approved the recent judgment in Tobin v Minister for Defence where it was held that if there is an alternative, more cost-effective way than discovery to disclose relevant information to parties in a dispute, discovery would not be necessary. Examples of alternatives were not discussed in Clarke CJ’s judgment; however, options include Interrogaries, which are a formal set of written questions which one party requires the other to answer in order to establish the facts of the case, and Notices to Admit Facts. Clarke CJ also emphasised that the decisions of trial judges in the discovery process should not be interfered with by the appellate courts, save for circumstances where the denial of discovery would negatively impact the administration of justice.

Impact of Tweedswood Discovery Judgment

The Supreme Court’s decision has alerted litigants to the importance of effective and constructive engagement in the voluntary discovery process. Failure to do so may result in the striking out or reduction of one’s discovery application. The judgment is also a clear endorsement of alternative, cost-effective methods of gathering evidence, if discovery is not essential to one’s particular dispute. However, if additional discovery is necessary in the interests of a fair hearing, the courts will grant it.

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