Discovery Update: Walsh v HSE & Baxter Checklist

Published 3 November 2017

A recent decision of Mr. Justice Max Barrett in the case of Jennifer Walsh –v- The Health Service Executive, Baxter AG and Baxter Healthcare Limited [2017] IEHC 394 has provided a very useful "Check-List" in respect of discovery applications.

Background

This personal injuries action arose out of injuries allegedly suffered by the Plaintiff following the administration of a dose of the swine flu vaccine. Arising from these proceedings the Plaintiff brought a discovery application.

The Court reaffirmed the general legal principles applicable to a discovery application as outlined by Mr. Justice Murray in Framus¹ as follows:

1. The Party Seeking Discovery must:

i. Pinpoint the documents or category of documents required.

ii. Give reasons why the documents or category of documents are required.

iii. Ensure documents sought must be relevant to the matter in issue.

iv. Show to the court it is reasonable for the court to suppose that the documents contain information in advancing the applicant's case or damaging the case of the other party.

v. Not make a blanket request.

The Party Seeking Discovery cannot:

vi. Obtain discovery based on (a) mere speculation or (b) a fishing expedition - the search for material in the hope of being able to raise allegations of fact, as opposed to the elicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularisation.”

vii. Seek discovery of a document in order to find out whether the document is relevant.

viii. Trawl through the other party's documentation.

2. The Party of whom Discovery Sought

On receipt of the preliminary letter seeking discovery must be:

i. Be in a position to know the document or category of documents referred to;

ii. Be able to judge whether the reasons given for requiring these documents to be discovered is valid.

3. The Court's Role in a Discovery Application

i. Decide as a matter of probability whether a particular document is relevant to the issues to be tried and to ensure an order is not made simply because there is a possibility that documents may be relevant.

ii. To take into account the extent to which discovery of documents might become oppressive and to ensure that the procedure is not used as a tactic by parties.

4. Relevance

Relevance must be determined in relation to the pleadings or already discovered documents only.

5. Necessity

Necessity is generally an add-on to relevance. The following considerations will be taken into account:

i. The administration of justice

ii. Is discovery of the category of documents sought "necessary for disposing fairly of the matter"

iii. Does one party enjoy an unfair advantage as a result of a document not being produced.

iv. The burden, scale and cost of the discovery sought.

v. What is genuinely necessary for the fairness of the litigation.

vi. The primary test is whether the documents are relevant to the issues between the parties. Once it is established it will follow that their discovery is necessary for the fair disposal of those issues.

6. Proportionality

Some limitation may be imposed where there are numerous documents of slight relevance and it would be oppressive to produce them all. 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.

Conclusion

As the cost of complying with discovery obligations increases both in hours expended and in monetary terms, the introduction of the Checklist is a welcome development in the efforts to modernise and structure the discovery process

Mr. Justice Barrett reduced the Framus principles further to this checklist.