+ Discovery is “fundamental entitlements of a litigant, in civil and criminal proceedings, to know the case being made against him or her and to build a defence to that case” (Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure, 2019).

1. Challenges and Disadvantages of Discovery

• Cost and Delay : Discovery can significantly raise litigation costs, sometimes comprising up to 50% of total litigation expenses - it also delays proceedings, especially in complex cases with voluminous documents (Thema International Fund v HSBC International Trust Services, 2011).

=> Some judges are concerned about the effect the discovery process has on the access to justice because of the delay it can cause, unavoidably leading to the increase of the cost of litigation ; they are also worried about that process being used "as a means of forcing a party into an unfavourable compromise or settlement out of fear that the costs otherwise incurred would be irrecoverable" (Chair Mr. Justice P.Kelly, Review of the Administration of Civil Justice Report, 2020).

• Potential for Abuse : Discovery can be oppressive, leading to unnecessary demands or "fishing expeditions," which are attempts to gather documents not directly relevant to the case.

=> With the proliferation of documentary records and the improvement in recent years of photocopying equipment, there is a danger that this valuable legal procedure may be invoked unnecessarily or applied oppressively, which will always involve delay and expense (Irish Nationwide Building Society v Charlton,1997).

• Tactical Overload : Parties may use discovery to overwhelm the opposition with irrelevant documents, complicating the process and potentially leading to the omission of crucial information (Simpson, Bailey and Evans, Discovery and Interrogatories 2nd ed., at p. 2).

+To engage in such a tactic is as much an abuse as to withhold relevant information (IB Banks plc v. Ernst & Whinney, 1993).

2. Limitations on Discovery

• Scope Restriction : Discovery is limited to relevant and necessary documents, it cannot be used to initiate new causes of action or to join parties solely to gain access to their documents.
• Single-Use Rule : Documents obtained through discovery are generally restricted to the specific case and cannot be used in other jurisdictions unless special circumstances justify an exception.

In Roussel v. Farchepro Ltd. [1999], the Irish High Court examined the limitations of using discovered documents in other proceedings, particularly cross-jurisdictionally.

• Roussel, a pharmaceutical company, was involved in patent infringement litigation (= contrefaçon de brevet) in Ireland against Farchepro Ltd - similar litigation was ongoing in Spain and Switzerland et Roussel sought to use documents discovered in the Irish proceedings in their foreign cases. 
• Generally, documents disclosed in one set of proceedings cannot be used in another but the court held that, to grant permission for cross-use of discovery, the requesting party must demonstrate "special circumstances" (showing that the situation is unique or exceptional enough).
• The court emphasized the need to balance the interests of both parties : it must be shown that allowing the use of documents in other proceedings will not cause injustice to the party providing the documents, particularly regarding confidentiality (Irish court permitted cross-use for Spanish proceedings due to urgent circumstances related to patent protection but denied it for the Swiss case, where no similar urgency or risk of injustice to Roussel was demonstrated).
• Court retains discretion in these matters, assessing each situation individually.

3. Timing of Discovery

Order 31 Rule 12(9) of the Rules of the Superior Courts (RSC) relates to the timing for making an application for discovery in Irish civil proceedings.

• A party must apply for discovery within 28 days after the action has been set down for trial or, if the case has not been set down, within 28 days after it has been listed for trial.
• Although the rule specifies a strict timeframe, the court has discretion to extend this period if it is "just and reasonable" to do so (allows flexibility in exceptional situations where a party might need additional time due to unforeseen circumstances).
• The rule applies specifically to the High Court, meaning that the timeframe for discovery applications may vary in lower courts such as the Circuit Court Rules (CCR), District Court Rules (DCR) or may not be explicitly prescribed.
• There is no strict rule on the earliest stage at which discovery can be sought, however, discovery is generally pursued after the pleadings are complete, so that the issues in dispute are clarified before documents are requested.

In Gayle v. Denman Picture Houses Limited [1930], L.J Scrutton provided guidance on the timing and appropriateness of discovery applications in civil proceedings - this case is often cited for its principles on "fishing expeditions".

• In this case, the plaintiff sought discovery from the defendant before filing a statement of claim.
• Scrutton L.J. emphasized that discovery should generally only be permitted after the pleadings have been delivered to ensure that the issues are clearly outlined.
• The judgment warned against allowing discovery as a "fishing expedition," where a party seeks information to see if they can build a case rather than already having a justifiable claim : a plaintiff initiating an action should be able to outline their case with enough specificity before seeking discovery.
• While the general rule is to avoid early discovery, there may be "most exceptional circumstances" where discovery could be justified before the pleadings are closed (require strong justification).
• This case emphasizes the court's responsibility to ensure that discovery is not used to unduly burden or harass the opposing party, especially in the early stages of litigation without a clearly defined claim.

Timing of Discovery EXCEPTIONS :

In Craddock v. RTE [2014], the Irish Supreme Court reinforced that early discovery is an exception rather than the rule, with strong justification required to bypass the standard procedural sequence.

It established that the need for clarity in pleadings is balanced with fairness, allowing plaintiffs access to evidence crucial for crafting their legal arguments, particularly in cases involving defamation and other personal reputation concerns.

• Discovery is only granted after the close of pleadings to support an established case rather than to allow a plaintiff to seek evidence before defining the specific claims they wish to make.
• However, in this case, the court found that two main factors justified early discovery :

1. Lack of Access to Crucial Information: The plaintiffs had no access to the private version of the program shown to parents, which was necessary to understand the full scope of the alleged defamation.
2. Complexity of Visual Evidence in Defamation: Unlike written defamation, where a statement can be precisely reviewed, audio- justified early discovery so that the plaintiffs could formulate their statement of claim effectively.

• The court highlighted the need for a fair balance in discovery and underscored that, in cases involving complex media content (like visual or broadcast material), it may be unrealistic to expect a plaintiff to outline their claim accurately without seeing the disputed content.
• The decision emphasized proportionality, meaning that courts must weigh the necessity and fairness of early discovery against the risk of encumbering the defendant with an unduly burdensome process.

In Law Society of Ireland v. Rawlinson [1997], the Irish courts confirmed that early discovery must be justified by a clear need tied directly to an existing legal claim rather than speculative inquiry.

• Early discovery could be allowed only where there is a clearly stateable case that would benefit from specific documents to accurately frame the issues at hand, in other words, it should only be sought to refine or substantiate an already identifiable legal issue (the Law Society was able to show that it had a legitimate basis for its claim and that the documents requested were critical to completing a detailed statement of claim).
• Once again, avoidance of Fishing Expeditions and Proportionality and Judicial Discretion.
• The case underlined the importance of delivering a concise and coherent statement of claim (Law Society’s claim in this case was complex, involving specific statutory obligations, which justified some level of early discovery to outline the precise legal and factual issues).

4. Procedure for Obtaining Discovery

Order 31 Rule 12(6) of the Rules of the Superior Courts (RSC) outlines the procedure for obtaining court-ordered discovery when a party refuses to make voluntary disclosure. 

• Before seeking a court order for discovery, a party must first attempt to obtain discovery voluntarily from the opposing party which is usually done through a letter from the party’s solicitor to the opposing party, specifying : the exact categories of documents being requested and the reasons for requesting each category (demonstrating relevance and necessity) - if the other party agrees, discovery proceeds with an affidavit listing all relevant documents.
• If the opposing party does not respond or if the response is unsatisfactory, the requesting party may apply to the court for an order of discovery by way of a notice of motion (=a written application to a court) supported by an affidavit that explains why the documents are necessary for fair resolution of the case or for saving costs (must be clear and precise to avoid excessive or burdensome requests, and allowing the opposing party to understand the relevance of each requested document).
• The court exercises discretion in determining whether to grant an order for discovery - if the discovery request is overly broad, burdensome, or lacking specificity, the court may refuse the order or limit it to certain documents or categories deemed essential.

Order 31 Rule 12(8) of the Rules of the Superior Courts (RSC) addresses situations where a party agrees to provide discovery voluntarily but then fails to follow through within a reasonable time.

• If the party who agreed to make discovery does not complete it within a reasonable timeframe, the requesting party can seek recourse by applying to the court and demonstrate that they informed the other party in writing of the following:

> That the discovery was requested under Order 31 Rule 12.

> The agreement to make voluntary discovery imposes the same formalities as if it had been ordered by the court.

> That failure to complete discovery may lead to a court application for an order enforcing compliance.

• Upon application by the requesting party, court has broad discretion to impose the order it deems just and appropriate, which may include compelling the party to fulfill their discovery obligations or imposing sanctions for non-compliance.

In Tweedswood Ltd v. Power [2019], the Irish Supreme Court highlighted the principle that parties involved in litigation have a duty to engage in good faith and constructively during the voluntary discovery stage.

A judge has the discretion to consider the conduct of both parties during the voluntary discovery stage and in cases where one party has shown a clear lack of cooperation or has refused to engage reasonably, the judge may decide to limit or deny court-ordered discovery or, conversely, grant broader discovery than initially requested if it appears one side has obstructed the process.

5. Test for Granting Discovery

In Irish law, the test for granting discovery is based on two primary requirements: relevance and necessity. 

1- Relevance (Peruvian Guano Test)

Relevance is evaluated based on the Peruvian Guano test from Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) and under this test, documents are considered relevant if they relate directly or indirectly to issues in the case and may lead to a "train of inquiry" that could assist one party's case or harm the other.

=> The Irish courts formally adopted the Peruvian Guano test reflected in Order 31, Rule 12(1) RSC, which allows discovery of documents “relating to any matter in question” in the litigation.

• Ryanair v. Aer Rianta [2003]: In this case, it was confirmed that the Peruvian Guano test remains the standard for determining relevance in Ireland and the court noted that "relevance" means the document must have a bearing on the case either as evidence or as something that could lead to further relevant information.
• Hannon v. The Commissioner of Public Works [2001]: The court clarified that relevance must be assessed specifically in relation to the pleadings and not by speculative submissions.

2- Necessity of Discovery

The necessity requirement demands that the documents requested must be essential to the fair resolution of the case or for reducing litigation costs. 

• Ryanair Plc v. Aer Rianta [2003]: The court held that even if documents are relevant, the court should grant discovery only if the documents are essential for understanding the case's issues or achieving a fair trial, it shouldn't be used to burden the opposing party with unnecessary document production.
• Framus Ltd & Ors v. CRH plc & Ors [2004]: This case underscored the need for proportionality in determining necessity by emphasizing that there must be a proportional relationship between the number of documents requested and the likelihood of their relevance and utility in advancing the case.
• Tobin v. Minister for Defence [2020]: This recent case further refined the test for necessity, reinforcing that discovery must be limited to what is genuinely required for resolving the dispute and pointed out that where discovery is likely to be burdensome, it should only be ordered if all other means of obtaining the information have been exhausted.

6. Control of Documents and Legal Obligations

A- Joint possession of Discovery

The case B. v B. [1978] is a significant English case concerning joint possession of documents in the context of Discovery and whether either party could unilaterally refuse to disclose documents that were jointly held, or whether they had to be disclosed if they were relevant to the case.

• Joint possession of documents means that both parties have an equal right to possession and control over those documents and the key point here is that neither party can prevent the discovery of documents that are jointly possessed, especially when they are relevant to the proceedings.

B- Power on Discovery

+Bula Ltd v. Tara Mines [1994]: If a party has an enforceable legal right to inspect a document from the person who actually owns it, without having to get permission from others, then that party has control over the document.

+The case Johnson v. Church of Scientology [2001] involved the extent of the powers that a court can exercise to compel discovery in a case where a party's rights are being obstructed by the other party's refusal to provide relevant documents.

• The Church of Scientology refused to provide certain documents during the discovery process, claiming they were privileged or irrelevant.
• The court emphasized that discovery is an essential tool for ensuring that both parties have access to all relevant evidence to ensure a fair trial.
• However, there must be a balance between a party's right to obtain relevant evidence and the protection of certain legal rights, such as privilege and the court must therefore consider whether the documents sought are indeed relevant and whether the claim of privilege or confidentiality is supported with sufficient clarity and justification.

+Susquehanna International Group Limited v. Daniel Needham [2018]: Defendant can be compelled to obtain documents within his “power” that are available by making a data request.

C- Procurement on Discovery

Procurement arises only where it is likely that the document in question would be furnished voluntarily if sought (Discovery and Disclosure 3rd Edn. 2019, para 4.31).

7. Proposed Reforms

• Cost and Time Reduction: Suggested reforms include mandatory early-stage disclosure of relevant documents to limit time and costs. Some propose narrowing the relevance standard to "material" evidence to reduce document volume.
• Alternative Approaches: Some recommendations focus on specific categories of documents to be disclosed at distinct litigation stages, replacing extensive and potentially oppressive discovery practices. Reforms also consider introducing standardized pre-action disclosures similar to those in England and Wales.