Discovery applications in the Masters Court - Law Library · PDF fileDiscovery applications in the Masters Court ... Notice of motion must also specify precise categories 4. ... has

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Discovery applications in the Discovery applications in the

Masters CourtMasters Court

BrBríídd Moriarty BL, Moriarty BL,

Monday 18 May 2009Monday 18 May 2009

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IntroductionIntroduction

� Amended rule

� Changes

� Test “relevance” and “necessity”

� Case-law

� S.I. 93 of 1999

� The Master’s decisions

� Practice in the Master’s Court

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Original RuleOriginal Rule

� Order 31 rule 12

� Seemed onus was on party resisting discovery to prove it was not necessary

� SI 265 of 1993 added Order 31, rule 12(4) which introduced requirement of voluntary letter seeking discovery

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Impetus for changeImpetus for change

� Brooks Thomas Ltd. v. Impac Ltd. 1 [1999] I.L.R.M. 171 (Supreme Court)

� Per curiam: In view of the trend in modern times to seek discovery in almost every case, the Superior Court Rules Committee might consider changing O.31 r.12 so as to require an affidavit before discovery is ordered.

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Amended ruleAmended rule

� SI 233 of 1999

� 3 August 1999

� New Order 31, rule 12

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Procedural changesProcedural changes

1. Each applicant for discovery must write seeking the opposing party’s agreement to make voluntary discovery within a reasonable time (’93 SI)

2. Voluntary letter must specify categories of discovery sought and reasons

3. Notice of motion must also specify precise categories

4. Motion must be grounded on affidavit verifying necessity and setting out reasons for discovery

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Taylor v. Taylor v. ClonmelClonmel Healthcare Ltd. Healthcare Ltd.

[2004] 1 I.R. 169[2004] 1 I.R. 169

Per Geoghegan J. at p.182-3“…I do not accept that the Master is confined in his ‘jurisdiction’ to making orders based on strict compliance with the rules….I think …that the Master has full power to waive any technical breach in the rules if the object of the rule, has in reality been achieved.

But see Murray J. in Framus at page 43 that “…it is not for the Court to redraft an applicant’s motion where it in effect amounts to a form of blanket discovery.”

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Object and purpose of new ruleObject and purpose of new rule

� Swords v. Western Protein Limited [2001] 1 I.R. 324 per Morris P. at 328

� I believe that Rules of the Superior Courts (No. 2) (Discovery), 1999, imposed a clearly defined obligation upon a party seeking discovery to pinpoint the documents or category of documents required and required that party to give the reasons why they were required. Blanket discovery became a thing of the past.

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Burden of ProofBurden of Proof

� Ryanair p.l.c. v. Aer Rianta c.p.t. [2003] 4 I.R. 264

� Per Fennelly J. at p. 275� The amendment to the rule has shifted the

primary burden of proof.� The applicant must prove that the discovery

sought “is necessary for disposing fairly of the cause or matter.” This is not merely a formalistic requirement.

� The affidavit “must furnish the reasons why each category of documents is required.”

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Burden of proofBurden of proof

� Apart from alteration of prima facie burden of proof, the amended rule made no fundamental change in the law regarding discovery of documents.

� Taylor v. Clonmel [2004] 1 I.R. 169 per Geoghegan J. at 182

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Burden of ProofBurden of Proof

� “Fennelly J. [in Ryanair] went on to observe that it was impossible to resist the conclusion that the amendment to the rule had shifted that burden. However, in most cases this alteration in the rule may not make much practical difference. If a party is entitled to a document on grounds of relevance to assist him in his case, on the ordinary discovery principles it will usually be ‘necessary’.”

� Delaney and McGrath page 274 “…the change has clearly made it more difficult for the applicant for discovery to establish an entitlement to it.”

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Test: RelevanceTest: Relevance

� Order 31 r.12(1)

� (1) Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or

matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein.

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““RelevanceRelevance””

� The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882) QBD 55, 63

� Per Brett LJ� It seems to me that every document relates to the

matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may- not which must - either directly or indirectly enable the party requiring

…

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the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly," because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

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� Murphy (a minor) v. Donohoe Ltd. [1996] 1 I.R. 123 at 129, per Johnson J.

� “relevance must be tested by the pleadings and the particulars.”

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Hannon v. Commissioners for Public WorksHannon v. Commissioners for Public Works (Unreported, (Unreported,

High Court, McCracken J., 4th April, 2001)High Court, McCracken J., 4th April, 2001)

� "(1) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant.

� (2) Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that O. 31, r. 12 of the Rules of the Superior Courts 1986 specifically relates to discovery of documents "relating to any matter in question therein".

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� (3) It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other party's documentation is not permitted under the Rules.

� (4) The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties."

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RyanairRyanair p.l.cp.l.c. v. . v. AerAer RiantaRianta c.p.tc.p.t. [2003] 4 I.R. 264 . [2003] 4 I.R. 264

per per FennellyFennelly J. at 275J. at 275

� Peruvian Guano remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought.

� “It has long been accepted as laying down the appropriate test of relevancy.”

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FramusFramus Ltd. v. CRH plc [2004] 2 Ltd. v. CRH plc [2004] 2

I.R. 20I.R. 20

� Murray J. at p.34 � Referred to Peruvian Guano� Referred to Aquatechnologie Ltd. v. National

Authority Standards of Ireland (Unreported Supreme Court, 10 July 2000) “there is nothing in that statement which is intended to qualify the principle, that documents sought on discovery must be relevant either directly or indirectly, to

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the matter in issue between the parties in the proceedings. Furthermore an applicant for discovery must show it is reasonable for the court to suppose that the documents contain information which may enable the applicant to advance his own case or damage that of his adversary. An applicant is not entitled to discovery based on mere speculation or …a fishing expedition.

� Cites Hannon

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Test: NecessityTest: Necessity

� O.31, r. 12 (2) and (3)� (2) On the hearing of such application the

Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, …

� (3) An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

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Cooper Flynn v. RTE [2000] I.R. Cooper Flynn v. RTE [2000] I.R.

344344

� Kelly J. considered “necessity” in the

context of application for inspection of documents.

� O.31, r.18 (2) “An order shall not be made

under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.”

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What is meant by What is meant by ““NecessaryNecessary””??

� In determining whether inspection was necessary� Kelly J. at 354 cited� Taylor v. Anderton [1995] 1 W.L.R. 447 at p. 462

Bingham M.R said:-� "... The crucial consideration is, in my judgment, the

meaning of the expression 'disposing fairly of the cause or matter'. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise.

…

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The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment is the test."

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� Kelly J. at 354 also cites� Science Research Council v. Nassè [1980] A.C.

1028 at p. 1071 Lord Salmon in his speech said: � “…. What does 'necessary' in this context mean?

It, of course, includes the case were the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order; but it is not confined to such cases. Suppose, for example a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection. I, of course, recognise that the tribunal, like the courts, has a discretion in the exercise of its power to order discovery.

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RyanairRyanair p.l.cp.l.c. v. . v. AerAer RiantaRianta c.p.tc.p.t. .

[2003] 4 I.R. 264[2003] 4 I.R. 264

� Per Fennelly J.

� Sub-rules 2 and 3, which deal inter alia with the necessity for discovery are taken unaltered from the old rule.( at 273)

� …the applicant does not have to prove that they [particular categories of documents] are, in any sense absolutely necessary. (P.276)

� “Litigious advantage” approach

� …may not be wise to substitute a new term of art “litigious advantage” for the words of the rule.

� Nonetheless, discussion gives guidance

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RyanairRyanair

� Change reflects concern about costly and protracted litigation

� broad discretion conferred upon it by O. 31, r.12 (2) and (3),

� Court must have regard to the issues in the action as they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required.

� It should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of discovery sought.

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� The court should be willing to confine the categories of documents sought to what is genuinely necessary for the fairness of litigation.

� It may have regard of course to any alternative means of proof which are open to the applicant.

� The behaviour of the other party is relevant.

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Application of the test in Application of the test in RyanairRyanair

� Per McCracken J. at 281� Pl sought discovery of documents regarding the

introduction of a levy at Cork Airport.� “This would not seem relevant or necessary as it

occurred some five years after the action complained of by the plaintiff and indeed after the issue of proceedings.”

� Discovery was also refused in respect of another category of documents where the letter seeking voluntary discovery raised new issues of fact for the first time.

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� “…they amounted to new causes of action which have not been pleaded, nor indeed denied, and therefore issue has not been joined in the pleadings….it is clear that if the statement of claim is ultimately amended...then the plaintiff would be entitled to seek discovery.” (At 282-3)

� Discovery also refused in respect of three “vague and wide-ranging” sub-categories

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FramusFramus Ltd. v. CRH plc [2004] 2 Ltd. v. CRH plc [2004] 2

I.R. 20I.R. 20

� Per Murray J., page 37

� Fennelly J. in Aer Rianta clearly set out the considerations which a court should take into account in determining whether the documents sought in an application for discovery are necessary for the fair disposal of a cause or matter.

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Application of the test in Application of the test in FramusFramus

� Supreme Court upheld limited discovery ordered by High Court

� Did not allow discovery where “price trends in the market may be subject of expert evidence and the range of documents sought…is too broad in scope”

� High Court had exercised discretion of balancing sufficient discovery with avoiding oppressive discovery

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P.J. Carroll & Co. Ltd. v. Minister P.J. Carroll & Co. Ltd. v. Minister

for Health and Childrenfor Health and Children

� Supreme Court, Unreported, 1 June 2006

� Per Geoghegan J.

� Necessity

� Availability of expert evidence

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Relevance and necessityRelevance and necessity

� Ryanair

� “in the great majority of cases, discovery disputes have revolved around the issue of relevancy. There are fewer cases concerning necessity. There are good reasons for this. If there are relevant documents in the possession of one party, it will normally be unfair if they are not available to the opposing party….The overriding interest in the proper conduct of the administration of justice will be the guiding consideration in the administration of justice.”

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Taylor v. Taylor v. ClonmelClonmel [2004] 1 I.R. 169[2004] 1 I.R. 169

� The strengthening of the amending rule, in my view, is so that the legal advisers of the moving party will apply their minds not only to whether the documents are relevant but whether they are necessary. In most instances if they are relevant they will be necessary but there will be cases where that will not be so. It would defeat the whole purpose of discovery if detailed reasons had to be given in the grounding affidavit as to necessity.

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[In this case the reasons were set out in the letters which were exhibited.] The purpose of the amendment was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be. For many years before that, an unlimited general order for discovery was common practice….

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ProportionalityProportionality

� Framus at para 36� It seems to me that in certain circumstances a too

wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out, the crucial question is whether discovery is necessary for "disposing fairly of the cause or matter". I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial.

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That is not to gainsay in any sense that the primary test is whether the documents are relevant to the issues between the parties.Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.

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FramusFramus

� At 43

� In certain circumstances, the court may grant discovery on a more limited basis than that sought where it considers it appropriate to do so. On the other hand, it is not for the court to re-draft an applicant's motion where it in effect amounts to a form of blanket discovery, which I consider this particular request to be.

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VLM v. Xerox (Ireland) Ltd., Unreported, VLM v. Xerox (Ireland) Ltd., Unreported,

High Court, Clarke J. 25 February 2005High Court, Clarke J. 25 February 2005

� Allegedly defective machines� Plea in defence concerning negligence or

contributory negligence on the part of the plaintiff in the use of the machines

� Q I must ask is “whether there are real grounds for believing that discovery of the category concerned might advance the plaintiff’s case or damage the defendant’s case.”

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� “….whether there is any lesser category of documents…”

� The establishment by the plaintiff of a failure to perform will not necessarily bring home his case…seems…that the existence of similar complaints … “might” damage the case of the defendant by making it less likely that any failure to perform on the part of the machines was due to a lack of proper care on the plaintiff’s part…

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� Discovery sought was excessive, confined

the category

� Burden on defendants

� Balanced against possibility that similar complaints could have a significant and material bearing on the outcome of proceedings.

� Any wider discovery would be oppressive

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SI 93 of 2009SI 93 of 2009

� 16 April 2009

� Makes provision for the discovery of electronically stored information

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� Master’s Decisions

� Practice

� Reading: Abrahamson, Dwyer and

Fitzpatrick, “Discovery and Disclosure”, Thomson Round Hall, 2007

� Delaney and McGrath “Civil Procedure in the Superior Courts”, Thomson Round

Hall, 2005, Chapter 10.