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Published 31 July 2018
Gavin Tobin –v- The Minister for Defence, Ireland and the Attorney General  IECA 230
The ever topical area of discovery was considered in a recent Court of Appeal decision by Mr. Justice Hogan.
Personal injuries proceedings were issued by the Plaintiff, a mechanic with the Aer Corps, alleging injuries arising out of exposure to toxic chemical fumes whilst at work. The Plaintiff sought 15 categories of discovery from the Minister of Defence. An Order was made by the High Court for discovery of 13 categories dating back to 1990. The defendants advised the High Court that it would take 220 man hours and 10 staff members to locate, review and categorise the documents sought.
In the Court of Appeal Mr Justice Hogan advised of judicial concerns with discovery whereby the practical benefits of discovery are often outweighed by the costs and delays in the process, whilst even in the most complex cases only a small number of documents prove to be important despite the generation of thousands of documents. The Court referred to the current operation of the discovery process as a "crisis".
The Court advised that it has a duty to "re-calibrate and adjust" the discovery practice by insisting that in cases where the discovery sought is likely to be extensive, all other avenues should be exhausted and shown to be inadequate in the first instance.
The Court varied the orders made by the High Court in respect of a number of categories of documents on the basis that the application for discovery was premature and the information sought by the Plaintiff should be by way of interrogatories or a notice to admit facts in the first instance. The Court promoted a co-operative approach by both parties in this respect which could not only reduce the factual issues in dispute but also avoid the necessity for extensive discovery. The Court indicated that in the event that the interrogatories route did not yield what is necessary to the prosecution of the Plaintiff's case that the application for discovery could be renewed in the High Court.
Interrogatories are a means of obtaining information and/or admissions as to facts from the other party by asking a series of questions. The answers are given under oath and may be used as evidence in the trial. The form of interrogatories should be framed in a manner that allows them to be answered simply "yes" or "no".
This decision of the Court of Appeal is a welcome effort to address what Mr Justice Kelly observed at the Four Jurisdictions Conference in 2017:
"Delay and cost are the two greatest obstructions to the administration of a fair and expeditious system of civil justice. The greatest contributor to both is discovery."
It remains to be seen if it will promote the underutilised procedure of the delivery of interrogatories.
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