rules of court

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.

Irish society is suffering from serious failures on the executive side.

The Law Reform Commission, by contrast, is an Irish institution that is functioning well.

I have referred HERE to its proposal that Ireland implement a system for accommodating “class actions”.

An executive failure (whether in the executive proper or in the administration of the Courts) is all the less forgivable when a good workable proposal is advanced by the Commission and then ignored.

Undoubtedly the failure to have such a system caused considerable loss to the State in the “Army Deafness” cases.

The continuation of that failure is not, therefore, simply a hard-nosed conservative attitude of denial to personal injury claims (which it is), it is a fundamental failure of imagination, and ultimately, of management.

I do not intend to imply that class actions will arise solely in relation to personal injury claims. They will appear there; the pollution of the Galway drinking water supply is a case in point. With a system for making multi-party claims, the injured people of Galway would undoubtedly have made claims for those injuries. They could have done so individually; the fact that they appear not to have done so is some evidence that Ireland is not a litigious society.

Class actions will arise in consumer law cases. It would be wrong, to paraphrase Calvin Coolidge, to conclude that “the business of Ireland is business” and, as a non-sequitur, conclude that the interests of business are paramount over those of the Irish consumer.

Judicial Case Management is a system designed to identify and define issues in dispute and to reduce delays, costs and unnecessary pre-trial activities.

It currently operates in the Irish Commercial Court.

It was in operation in the case of Barings plc & anor v Coopers & Lybrand & Ors 2001] EWCA Civ 1163 when the Court of Appeal delivered the following remark:

We heard submissions from Mr Bathurst QC and Mr Aldous QC for Barings Singapore and Barings London respectively. Those submissions had a distinctly old-fashioned flavour. They started with the submission that no rules of court or new practice (such as judges reading the papers in a case before submissions are made to them) could turn inadmissible evidence into admissible evidence. With that, of course, we agree. They further submitted that the decision as to what to pre-read was more than a mere case management decision and, if it was wrong, this Court should be prepared to reverse it.�?

The issue arose because the trial judge was going to read certain documents before the commencement of the trial. Those documents contained inadmissible material.

Under the rules of evidence inadmissible material is, by definition, inadmissible.

The Court of Appeal subscribed to the principle that inadmissible evidence should not be admitted. It also subscribed to the principle that the rules of evidence could not be changed by rules of court or practice. It was the citation of those principles that, it suggested, “had a distinctly old-fashioned flavour.�?

Nonetheless, it went on to endorse the decision of the judge to read the material.

The case illustrates the implications of substantial procedural change: it can bring with it a pressure to change the law, in this case, of evidence.

That may be necessary, but it should not happen “sub rosa”

Case management has arisen for a number of reasons. For the current subject under consideration it is evidence of dissatisfaction with formal legal proceedings for the resolution of some disputes. The judiciary has responded by introducing case management and some other techniques.

Only time will tell whether this will work out for the best. Some disputes with great potential seriousness seem not capable of resolution by court proceedings, satisfactorily, at least. Often these show great efforts by participants to help resolve the situation.

This natural inclination to do the right thing can be seen in the history of a case HERE
where full credit is due to the High Court judge for his humane approach to his job.