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UK Discovery

Here in Ireland we have invented a peculiar process (in Statutory Instrument 233 of 1999) to assist parties to litigation to have justice in their case.

Firstly, on principle, we conditionally deny them access to the relevant documentary evidence in the possession of the other party.

They can have that access on this condition; they must justify the request for access.

Clearly, “relevance” is not an admissible justification, otherwise the request would be;

Please discover relevant documents to the Plaintiff”.

In England and Wales, by contrast, that, in effect, is the request (under Civil Procedure Rule 31.5). Furthermore, although the concept of limiting discovery is admitted, it is the person of whom discovery is required who must justify any claimed limitation.

CPR defines “Standard Disclosure”:

Standard disclosure requires a party to disclose only –

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.”

In Ireland, it is the person making the request who must justify it. In principle, that would be fine, if the process was not emptied of intellectual content by requiring that person to justify the request, not by relevance (that, bizarrely, is assumed) but by necessity.

Necessity implies that the case will be lost if the documents are not discovered. That is an extreme case or position. It could happen, but if it did only the party holding the document (undiscovered) would ever know it.

To know of a document to the extent of needing it, is to know it intimately. Only the party holding the document can be intimate with the document.

In short, to show necessity is an unattainable standard.

It is high time we went back to 1998.