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Papers, please

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.