discovery

As this is written, the public perception of AIB and Bank of Ireland is that they are solvent. They may not be. If they are not, the Government, or part of it, knows it. The Government, although it is silent on the point, is in that case, in effect. perpetuating the illusion of the banks’ solvency. This split between what is officially the case and what is really the case is common. We have seen recently that, although they were not directly protected by the State, we slowly, and by chance, learned that Liam Carroll’s property interests were financially unsustainable with Paddy Kelly’s likewise, followed by Bernard McNamara’s. These truths, easily comprehended when brought to view, are part of the more obscure greater truth, that the crash of these property interests was facilitated by massive Government failures and that the possible insolvency of the banks was caused by the Government.

The recent apology from the British Government to the victims of the Thalidomide scandal reminds us of what is required when important issues are denied or ignored; quality journalists.

In the UK they had the Sunday Times “Insight” team under Harold Evans. As editor of the Sunday Times, Evans refused to knuckle under in the face of Distillers’ court injunction preventing the newspaper from publishing the truth (to the extent then known) about the cause and history of the dreadful birth defects that had appeared as a result of the use of the Thalidomide drug by women. (Distillers was the distributor of Thalidomide).

(Ironically, given the title to this post, a newspaper of the name “Sunday Times” continued to exist after Harold Evans left it, but it was not what it had been; Rupert Murdoch owned it then).

At the crucial time and on the central issue, openness, the UK courts came down emphatically on the side of Distillers and attempted to impose secrecy.

Here in Ireland, if there were to be a reprise of that struggle we can not be sure that the courts’ response might not be equally inadequate.

The reasons for this are twofold; access to public records is still regularly denied as a consistent Government policy, and, within the court system, access to paper and electronic records is a matter of chance and whim. The Government has not only set the policy of “closed” administration, it has written the legislation to make it legal to refuse access to public records.

This blog is settled in the view that the current fashion of requiring minimal discovery of records/documentation in the course of litigation is mistaken.

That aside, there is a problem in the handling of documentation, in the conduct of litigation. After all, what does one do with the material discovered?

Well, litigation, like chess, is about the endgame.

If a piece of paper, or other record, has come to light and it conclusively supports, or rebuts, the contentions of a party, it is essential that it should be introduced to the judge as evidence.

So, too, should documentation that, while no element of it is decisive, shows a pattern of behaviour, or system, more consistent with the contentions of one party rather than the other.

How is paper introduced as evidence? By proving it.

Some unusual bits of paper prove themselves (Ordnance survey maps, for instance). All other bits must be proved particularly.

This requirement tends to make a bottlekneck for paper in the course of trial.

That’s the way it should be.

The alternative is bad. The alternative consists of the witness (or counsel) handing in a box or boxes of paper to the judge, with some claim that it is relevant, whereupon most, if not all, will not be referred to again during the course of the trial.

Assume then that the judge indicates his/her intention to give a reserved judgment. Assume also that the judge reads all the papers handed in. Assume also that the judge adopts a bad habit of doing his/her own research and finds some case or cases not mentioned by either party in the course of the trial.

The predictable outcome will be a judgment invoking law and principles of law not mentioned in the trial and referring to paper upon which the witnesses or most of them will have had no opportunity to make comment.

This, to put it at its lowest, is undesirable.

This is the problem inherent in the modern notion of “judicial case management”. There is a limit to the hands-on role a judge may adopt. Otherwise why not simply write to the court, submitting one’s case in writing and asking for a favourable judgment? Does the judge not know the law? Can the judge not read?

Well the judge does and the judge can, but that is not sufficient.

Litigants are not satisfied with a formal process; they want justice.

The Irish Independent has a story HERE about documents and the difficulties with them.

I have written about the difficulties over documents previously HERE and HERE and HERE.

The Independent’s view about difficulties are not exactly the difficulties I have addressed, and of course, one should take what is printed in newspapers with a pinch of salt.

Nevertheless, what about the Independent story?

Well, it says there are legal issues arising in the review by Mr. Appleby the Director of Corporate Enforcement of documents from Anglo Irish Bank Corporation, but identifies only one; the privilege attaching to legal advice. It hints that the documents containing such advice may be inadmissible in any future criminal (or civil?) trials.

This may be true, but those documents must be relatively very few. In addition, if the “advice” is in fact correspondence between conspirators, the fact that one of the conspirators is a lawyer is not a bar to the introduction of the document in evidence against all the conspirators, including and particularly, the lawyer.

One sentence…

“Officials from the director’s office are currently working through the seized material with the bank’s legal advisors to see what documents can be used for the purpose of the investigation.”

…is of particular interest. I have never encountered a criminal investigation where the agents of the suspect debated the quality or admissibility of the evidence with the investigators, if that is what the newspaper is reporting as happening here.

I suspect the Bank’s lawyers are arguing against admissibility (and for privilege?) rather than assisting in the search for evidence.

If so, that would be the norm, (in civil proceedings) but it should not be the norm.

In Ireland, until 1999 it was the duty of lawyers, in litigation, to facilitate their client to make disclosure, on affidavit, to the opponent, of all relevant documents helping or hindering the case of the client.

The Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) put a stop to all that. Henceforth, a litigant was obliged to identify, specifically or generally, the documents it was believed the opponent had which helped the litigant and/or which hindered the opponent, and to show that it needed those documents.

In practice this is a nonsense.

It makes the delivery of justice turn on the quality of guesswork of the applicant litigant. It opens the applicant to derision and obloquy for coming to court and seemingly “fishing” for documents.

Possibly the Statutory Instrument was intended to address a problem now being encountered by Mr. Appleby; too many documents. What judge would want to preside over a trial with too many documents in as evidence? It would be right to cut down on the volume of documents in any trial, particularly if they are not relevant.

But few legal proceedings are like Mr. Appleby’s case, if there is one, and, of course, Mr. Appleby’s case is not yet a civil action. Even if it turns out to be a civil action, Mr. Appleby will, unlike ordinary litigants, have had the opportunity of eliminating the guesswork from his request for documents when he asks Anglo Irish Bank Corporation to swear an affidavit of discovery.

The judges of the United Kingdom, no more than here, also wanted to avoid trials with too many bits of paper to be examined. To achieve this end, they introduced changes to their rules of court. (Actually they turned their entire rule book inside out, but that’s another story).

In the UK, a litigant is entitled to receive from the other party, “standard” discovery. The lawyer for the party making standard discovery is obliged to facilitate the client to make disclosure, on affidavit, to the opponent, of all relevant documents, coming readily to mind or easily found, which helps or hinders the case of the client.

If the circumstances of the case require more extensive discovery, it is open to the applicant for discovery to apply to court to get further and better discovery. The burden of showing that this is warranted will be on the applicant, but this situation is substantially different to that of an applicant in Ireland, not least because of different attitudes.

The UK rules state that the purpose of the rules are to do justice; the Irish rules do not state this. Instead, it is taken as a given that the courts would not seek any other outcome except justice. Arguably, the latter position is better than the former; after all, who would trust someone who protests that what they are doing is, always, seeking justice?

But the UK position should be seen in the light of “pre-trial discovery”. In the UK it is possible to get a court order for disclosure of documents, without (and usually, before) issuing proceedings. This is not possible in Ireland.

With hindsight, the volume of documents may not have been the problem it was perceived to have been. Most cases, particularly claims for compensation for personal injury, require little or no work to make adequate and proper discovery. The paper burden is often slight.

In addition, in cases involving greater volumes of discovery, the modern computer and the modern copier, having generated the volumes of paper, can, and do, assist in managing that paper.

Ironically, full and proper discovery is likely to relieve a court of having to read any of the discovered documents; it is easier to settle cases where the parties have not achieved unfair advantage as they enter upon the trial stage of the proceedings.

A settled case is a good case from a judge’s point of view.

Litigation is a contest and the contest is conducted according to rules. The express purpose of the contest is to do justice between the parties; therefore a rule which hinders that purpose must be dispensed with. It is the job of the judiciary to ensure that the rules achieve the purpose and not simply to ensure compliance with rules.

Unfortunately, in Ireland, one, at least, of the Rules of the Superior Courts hinders the doing of justice. That rule currently governs the making of “discovery” in proceedings. The rule is set out in Statutory Instrument 233 of 1999, and is the subject of a previous post in this blog HERE.

Discovery involves the obligation of a party to set out in affidavit what documents that party has, or had, in its power, possession or procurement, relevant to the issues in the action. Relevant documents are documents which help the case of the opponent or, alternatively, the party making the discovery. So, a document may be relevant in one or two ways; it may prove what is asserted by one party or disprove what is asserted by one party (or do both).

When the affidavit of discovery is sworn and delivered, the recipient may request inspection of the documents and seek copies.

Normally, discovery is not ordered (if it is ordered), until the pleadings have been exchanged. The pleadings will have formally defined the issues in the action. This is important; the lawyers for the parties have no difficulty, usually, in perceiving the issues in the case after the pleadings are closed. Before the pleadings are exchanged, only speculation might show what the issues are and speculation is not a good basis for making judgments as to the relevance of documents, say.

Each party is very familiar, usually, with the documents it has, or had, in its power, possession or procurement. Conversely, the parties are far from familiar with the documents the opponent has or had in its power, possession or procurement.

Before 1999, when a court ordered the making of discovery, it was relatively easy for the party, ordered to make discovery, to decide what documents should be discovered. By that stage the pleadings had been exchanged; the issues were defined and the documents were familiar to the party.

Since 1999, the burden of deciding what documents should be discovered has now shifted to the opponent, to the person seeking the discovery. The problem is, that party is unfamiliar with the documents its opponent has, or had, in its power, possession or procurement. The makers of the rule in Statutory Instrument 233 of 1999 elided this difficulty, by equating an assumed knowledge of classes of documents with knowledge of the documents themselves. The party seeking discovery must specify the documents it wants discovered by reference to classes of documents, and justify this request by relating the class to the issues in the action.

The consequence of this is a mess. “Classes of documents” is an abstraction. It is next to impossible, in most cases, to justify a request for discovery by reference to some general description of documents. More importantly, it conceals another departure from the previous practice and procedure on discovery; relevance as a standard has been abandoned.

The new standard is knowledge or lucky guesswork.

Knowledge of the opponent’s documents is rare and nothing is then left but guesswork. Consequently, requests for discovery are easily dismissed and denigrated for what they are – guesswork.

In Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. a judge opined that the Rules of the Superior Courts should be changed to, effectively, reverse the burden on applications for Discovery in the Superior courts.

Within the year, that was done by the introduction of Statutory Instrument No. 233 of 1999 (Rules of the Superior Courts (No. 2) (Discovery)).

In 2005 the Law Reform Commission (LRC 76-2005) recommended the following:

2. The Commission recommends that a formal procedural structure to be set out in Rules of Court be introduced to deal with instances of multi-party litigation.

3. The Commission recommends that reform of current procedures to deal with multi-party litigation should be based on the following principles: procedural fairness for the plaintiff and defendant; procedural efficiency; and access to justice.

4. The Commission recommends that the proposed procedure for dealing with multi-part litigation shall be called a Multi-Party Action (MPA).

To date, nothing has happened.

A recommendation from the Law Reform Commission carries only moral or intellectual authority. In the absence of political leadership (or judicial muscle, which is the same thing), it is possible to ignore the work of the Commission.

A Multi-Party Action (MPA) would permit the taking of representative legal proceedings where large numbers of persons had suffered from, effectively, the one wrong. The class of wronged persons would be the beneficiaries of the judgment and the judgment would reflect the totality of the loss of the class.

Currently there is no procedure to achieve this result. This state of affairs is favourable to wrongdoers, especially corporate wrongdoers. To permit class actions is to admit that, often, individuals can have a reasonable prospect of justice against a modern corporation, or the state, only through the action of a collective.

It may be that to permit the introduction of class actions is in opposition to the zeitgeist in Ireland.

That zeitgeist is expressed in the benefits conferred on corporate defendants and the state by Statutory Instrument No. 233 of 1999.

It is to defendants of that ilk that the current rules on discovery are of benefit. They are the paradigm producers of paper, paper which can be evidence, and often the only evidence, of wrongdoing by the corporate defendant.

Undoubtedly, the rules relating to discovery will require to be re-visited to allow MPAs to function correctly.

It would be wrong to say that the Irish legal profession (barristers) are interested in ideas. (Solicitors would never have it said of them at all). This is not to say that they, some of them, are not interested in some ideas. The idea of “justice” springs to mind as an example. But that is the very point of failure of those others not so interested. “Idea” is defined succinctly in my “Fontana Dictionary of Modern Thought” (2nd Ed.) as “The smallest unit of thought or meaning, the elementary constituent of beliefs or assertions”. This post will assume “justice” is an “idea”.

For cultural reasons, in Ireland justice is what a system of law is reputedly about, if we understand “justice” to be law as integrity.

We would not expect to find (we could be surprised) many defenders, in Ireland, of Judge Posner’s point of view.

But it is difficult not to feel that the current Irish practice on civil discovery is expressive, somehow, of an idea proper to Judge Posner, that is, an overemphasis on the economics of litigation (a selective overemphasis, it should be said, where actual judicial practice is replete with references back down to inferior courts following reversal of the original judgment).

The reputed inspiration for the current Irish practice on discovery (the rules for which practice are found in Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) was Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. in which a judge suggested the introduction of changes to the Rules of the Superior Courts in relation to discovery.

The new rules introduced an obligation, in seeking discovery to write to the opponent requesting voluntary discovery; the letter must specify the precise categories of documents required to be discovered and give reasons why those categories should be discovered.

In default of agreement, the applicant must apply to the court for an order for discovery on affidavit and aver, in the affidavit, the belief of the deponent of the necessity for the discovery, as previously set out in the letter to the opponent, and assert, on oath, the validity of the reasons for discovery of the stipulated categories.

Prior to the introduction of Statutory Instrument No. 233 of 1999, the lawyers for a litigant, required to swear an affidavit of discovery, encountered a mild dilemma; they could not impose on the opponent their client’s view of the issues in the litigation and the relevance or otherwise of any particular document to those issues. They had to adopt a broad view of relevance; it had to extend to a view which the opponent might take or hold. The deponent had to depose to such documents as were arguably relevant even if those documents damaged the case of the deponent (of course, if the document damaged the deponent’s case, it was relevant.)

Currently, it is the applicant who must establish relevance and necessity. Significantly, that burden must be discharged without the benefit of knowing what documents the opponent has let alone having inspected the opponent’s documents.

The result is to launch the applicant into an abstract exercise where he/she claims relevance and necessity without being in a position to actually prove what is averred. The best that can be hoped for is to point to some category of document, the relevance of which to the issues in the litigation, accords with the prior view of the judicial authority charged with deciding the application.

This process of voluntary request followed by application to court can be time consuming. It certainly delays the trial of the matter, but not by much more than the preceding process of discovery.

The process has one purpose; to limit the access of the applicant to the documents in the possession of the opponent.

As an idea it has severe limitations if the overriding objective of litigation is to do justice. Indeed, it is diametrically in opposition to the “justice” objective, if justice is law as integrity and not some lesser good.

Of course it is true that many documents are discovered in litigation, the need for which was dubious, but that is hardly an argument for limiting every litigant to a regime as conceived and embodied in Statutory Instrument No. 233 of 1999.

Put another way, the circumstances provoking the judge in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. amounted to an attempt to make a principle of what was only “anecdotal evidence”.

That some members of the Irish High Court currently make orders for the provision of, effectively, “general discovery” is superior anecdotal evidence to the rumination delivered in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. They prefer to do justice than to respect a dubious proposition simply because it is in a statutory instrument.