Ireland: Supreme Court To Consider Proper Overall Approach To Discovery

Last Updated: 1 February 2019
Article by Richard Willis, Keith Smith and Sinead Reilly
Most Read Contributor in Ireland, January 2019

The Supreme Court is set to consider the proper overall approach to discovery where the burden of complying with discovery is likely to be significant.

Discovery issues rarely reach the Supreme Court as that Court only hears appeals on matters of general public importance or where the interests of justice require that the appeal be heard by the Supreme Court.

However, the Court has decided to hear an appeal from a 2018 decision of the Court of Appeal in which the Court narrowed the scope of discovery that had been ordered by the High Court. Delivering the judgment for the Court of Appeal, Judge Hogan stated that there is something "seriously amiss" with the discovery system as it currently operates in Ireland. He held that, in cases where the documentation sought is likely to be extensive, judges should refuse to grant an order for discovery unless all other avenues (such as interrogatories and notices to admit facts) have been exhausted and these have been shown to be inadequate.

The Supreme Court has now agreed to hear an appeal from this decision on the basis that the issue of whether a court can or should seek to limit the scope of discovery is an issue of general pubic importance.

What is amiss?

The concerns expressed by Judge Hogan in the Court of Appeal will come as no surprise to anyone who has experience of extensive discovery in litigation before the Irish High Court, and indeed Judge Hogan is not the first judge to have been openly critical of the current discovery process. But the observations in his 2018 judgment were particularly pointed.

He described the current situation as a "crisis", referring to the burden placed on litigants and the significant costs incurred by extensive discovery orders, and the consequent delay which impacts not only the parties themselves but also the wider legal system. A process, he said, which was designed to assist the fair administration of justice now threatens to overwhelm it by imposing disproportionately onerous demands on litigants.

The problem, as identified by Judge Hogan, is that existing discovery practice has its origins in the seminal 1882 case, 'Peruvian Guano', and has failed to take account of the massive technological advancements since then. The Peruvian Guano case established the 'relevance and necessity' test – a party is entitled to any document which relates to the matters in question in the proceedings and which contains information which may (not 'must') either directly or indirectly enable that party to advance his/her own case or to damage the other side's case. This test worked well for many generations because the number of documents it captured was relatively small and manageable. But the explosion of data has changed this dramatically.

How does this manifest itself?

The case now before the Supreme Court is, as Judge Hogan said, a paradigm example of how present day discovery practice has gone seriously amiss. It is a "routine" personal injuries case. The appellant is seeking damages from the State for personal injuries he claims to have suffered while employed as an aircraft mechanic with the Aer Corps from 1989 to 1999. In the High Court he obtained an order for discovery of thirteen categories of documents dating back to 1990.

The uncontested evidence before the High Court was that it would take 10 members of staff in the Department of Defence – all of whom would have to be diverted from their existing duties – some 220 man hours to review, locate and categorise the documents sought. Many of these records are in hard copy form only and are stored in a variety of locations. Judge Hogan in the Court of Appeal noted that it was inevitable that the burden involved in seeking out and cataloguing hard copy documents dating back some 28 years was likely to be very considerable.

What did the court of appeal say?

In the Court of Appeal Judge Hogan stated that in cases where the discovery sought is likely to be extensive, the High Court should not make an order for discovery unless all other avenues have first been exhausted and these have been shown to be insufficient. The judge specifically encouraged more widespread use of interrogatories (questions designed to elicit facts) and notices to admit documents.

Will we see reform?

It may take some months before the Supreme Court hears this appeal and delivers a decision, but it is certainly one we will be watching with interest.

Discovery is an area ripe for reform. Indeed a Review Group established in 2017 and chaired by the President of the High Court is currently looking at how court rules on discovery and other procedural issues might be reformed to improve access to justice. A subcommittee of the Commercial Litigation Association of Ireland has made submissions to the Review Group on how the Irish court rules might be changed to reduce costs in discovery exercises. Richard Willis is a member of the subcommittee.

Reform is likely. We'll keep you updated.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions