Discovery in Legal Proceedings in Irish Law-the Essentials

legal discovery

Discovery is a two stage procedure in litigation. It primarily relates to documents and involves the disclosure and inspection of relevant documents in a legal case.

The purpose of discovery is to ensure the parties in a case know before trial the case they have to meet. For this reason, discovery may encourage parties to settle a case before incurring the cost of a hearing.

The rules for discovery are set out in the Court rules for each Court: District (Order 46A as amended-SI 285/1999), Circuit (Order 32) and High (Order 31).

The parties can make voluntary discovery, that is with agreement. If agreement cannot be reached the Court can be asked to make an order for discovery.

Two things are necessary before a Court will make an order for discovery:

  1. The documents requested are relevant to the issues in the case;
  2. The documents requested are necessary to deal with the case fairly or to save costs.

Discovery is not always appropriate or necessary, but will give an insight into the evidence the other party will be relying on at the hearing.

Inter Party Discovery

Discovery is normally made between the parties, that is, “inter party discovery”. Discovery can also be sought against a person or body not involved in the proceedings (non party discovery).

Type of Discovery

General discovery can be sought in the District or Circuit Courts. This is an order for all documents relevant to the issues in dispute in the case.

Specific discovery must be sought in High Court cases-this means the party seeking discovery must stipulate the exact categories of documents they are seeking and why they are necessary.

Seeking Discovery

Before seeking an order for discovery the parties must try, through correspondence, to agree terms for voluntary discovery between them.

The letter requesting voluntary discovery should

  1. Be to the party against whom discovery is being sought
  2. In the High Court specify the exact categories of documents sought
  3. Specify the period of time within which agreement must be reached.

If agreement is not reached the party seeking discovery can seek an order from Court compelling discovery .

The Discovery Obligation

The obligation is to make discovery on oath of all documents now or previously in a party’s possession, custody or power (eg bank statements which are in custody of the bank) relating to any matter in question in the case. There is no definition of “document” in the Court rules so it is extremely broadly interpreted, and includes electronically stored information (ESI).

Documents Must Be Relevant and Necessary

Relevance is assessed by reference to “relating to any matter in question in the action”. The party seeking discovery must show the documents sought are relevant and necessary to dispose fairly of the matter in question or to save costs.

Fishing expeditions, therefore, are not permitted but in the final analysis the Court will decide what his relevant or not.

Privilege

Privilege is an entitlement to refuse production of a document, and privilege can be claimed under a number of different headings:

  • Legal professional privilege. This includes legal advice privilege and litigation privilege, essentially communication between legal professional and client.
  • Without Prejudice Statements-a document written without prejudice for the purpose of negotiating a settlement (including mediation) is protected from disclosure or admissibility as evidence in court.
  • State or executive privilege. This includes the State or an arm of the State.
  • Diplomatic privilege.
  • Journalistic privilege.

Where privilege is being claimed over a document it must be done so in a proper form, and the individual document over which privilege is be9ing claimed must be identified.

Non Party Discovery

Non party discovery must be firstly sought voluntarily; if agreement cannot be reached an application can be made to Court for an order. This will require a Notice of Motion and Grounding Affidavit.

Timing of Discovery

Normally discovery is made after the close of pleadings. It is only when pleadings are closed that the parties can ascertain the materials relevant to the issues in dispute. These issues will be clear from the Statement of Claim, Defence, and Replies to Particulars.

Terms of Discovery

The terms of discovery will cover issues like:

  • The timeframe for production of documents
  • The identity of the deponent
  • Whether cross-orders are made, that is, discovery is ordered by the Court on a mutual basis.

Two Stage Process

As stated at the outset, discovery is a two stage process. The first stage is preparing and filing an Affidavit of Discovery. This involves gathering the documents and assessing relevance and necessity.

Each document should be listed and identified and the affidavit will be sworn by the deponent, once it is finalised. It should then be filed in the court office and the other side should be advised that they are ready to exchange affidavits.

The second stage is inspection of the documents, which normally takes place at the office of the solicitor of the party whose documents are being made available for inspection.

Alternatively, a copy of the disclosed documents can be served along with the Affidavit of Discovery, rather than wait for a request for inspection.

Where discovery and inspection has been carried out there is an implied undertaking about the use of the discovered documents, that is, that they will not be used for any other purpose save for the legal proceedings at hand.

Discovery Obligations after Swearing of Affidavit of Discovery

There is no continuing obligation to discover documents which come into existence after discovery has been made.

However, documents which existed at the time of discovery, and which were not disclosed, and come into the hands of the parties after after the swearing of the affidavit should be discovered.

Penalties for Discovery Failings

In the High Court or District Court the party failing to fulfill his discovery obligations can be jailed. However, the more common course of action is for the other party to seek to have the failing party’s statement of claim or defence struck out by way of a notice of motion and grounding affidavit. Alternatively, further and better discovery can be sought in the same application.

A party cannot rely on a document at trial which he has failed or refused to produce.

If mistakes have been made and documents omitted inadvertently, a supplementary affidavit can be filed.

Getting Ready for Trial

It is common for solicitors to try to agree common books of pleadings and discovery documents to be used at trial. If discovery in the case is small a book of all discovery documents could be available for trial.

If agreement cannot be reached each party should have their own books for the trial.

A Notice to Produce is complementary to the discovery process and it allows the serving party to demand inspection of any document referred to in the other party’s pleadings and affidavits of discovery.

A Notice to Produce can be served any time but makes sense to serve it pre-trial.

Personal Injury and Medical Negligence Cases

There are extra obligations in medical negligence and personal injury cases surrounding the exchange of expert medical reports and obtaining medical records. The Freedom of Information legislation can be of assistance to general medical services (GMS) patients and patients of health board hospitals. Data protection legislation can also be availed of to access computerised records in a hospital.

Statutory instrument 391/1998 sets out the disclosure of reports and statements obligations in accordance with the rules of the Superior Courts. These rules, however, should not be seen as an alternative to discovery.

Plaintiff’s are obliged to agree to medical examination by the defendant’s doctor.

Interrogatories are questions which can be raised in lieu of discovery or after inspection of the documents discovered. The aim of interrogatories is to seek out weaknesses in the other party’s case, and ultimately reduce the length of time for the trial, and, therefore, costs.

Injunctions

It may be necessary to seek a Mareva injunction or Anton Pillar order as part of the discovery process, to prevent the disposal of assets or documents.

Solicitors in the Discovery Process

Solicitors have onerous responsibilities in the discovery process “as a client cannot be expected to know the whole scope of his responsibilities regarding discovery without the assistance and advice of his solicitor”.(Murphy v J Donohoe Limited & Others[1996]1 IR 123)

The Zen of Legal Proceedings in the Circuit Court

circuit-court-legal-proceedings

Circuit court legal proceedings normally commence by way of a Civil Bill, which must be issued out of the Circuit Court office and served on the other party(ies). The jurisdiction of the Circuit Court is for actions worth between €15,000 and €60,000.

There are many types of Civil Bill including

  • Ordinary Civil Bill
  • Equity Civil Bill
  • Landlord and Tenant Civil Bill
  • Ejectment Civil Bill
  • Family law Civil Bill.

Most actions in tort or contract will use the Ordinary Civil bill, but a personal injuries action will commence with a personal injuries summons. Precise details of how the claim arises are set out in the Civil bill, along with details of the cause of action alleged and the financial losses/damages arising.

Read this article for the Personal Injuries Summons procedure.

The Civil Bill/PI Summons is issued in the Circuit Court office and must then be served on the defendant(s). Once the Civil Bill is issued time stops running from the perspective of the Statute of Limitations. Once issued, it is valid for 12 months and can be renewed then, if necessary, once an application is brought to the County Registrar.

Service can be carried out in person, by registered post, or ordinary post on a limited company.

Service of a Civil Bill/PI summons is proved by an affidavit of service or statutory declaration of the person who served it.

Defending the action

The defendant must, if he intends defending the action, enter an appearance within 10 days of service of the summons/civil bill. He must send a copy to the Circuit Court office and to the plaintiff’s solicitor.

Failure to enter an appearance will allow the plaintiff to obtain judgment in default of appearance.

Notice for Particulars

Once an appearance is entered the defendant’s solicitor will send a notice for further and better particulars. This will be a list of questions seeking to flesh out more information about the matters pleaded in the civil bill. The replies to these particulars in a personal injures case will state whether the plaintiff has been involved in previous personal injuries proceedings, and whether an award for damages was made.

Defence

A defence to the action must be delivered within 10 days of delivery of the replies to the notice for further and better particulars, or entry of the appearance if no notice is raised seeking particulars. The defence must be served on the plaintiff’s solicitor. The defence must state the grounds on which the defendant disputes the plaintiff’s claim.

In a personal injuries action the defence must be delivered within 6 weeks of the appearance.

A defendant can also counterclaim against the plaintiff but the counterclaim must derive from the same facts as the plaintiffs action.

A defence and a counterclaim must contain certain information specified in the Civil Liability and Courts Act, 2004.

 

If a plaintiff fails to progress their case with reasonable speed the defendant can apply to have the case dismissed for want of prosecution. However, it is in rare cases that cases are dismissed; normally the Court will impose a strict time limit for steps to be taken by the plaintiff.

Lodgement of money into court

To satisfy a Plaintiff’s claim a defendant can lodge a sum of money into court in settlement of the proceedings. In the Circuit court this lodgement is without admission of liability, unlike in the High Court. There are Court rules which determine how and when lodgements can be made.

A notice of lodgement and the sum itself are lodged in the Circuit Court office, and the notice is served on the Plaintiff. The fact of this lodgement will not be disclosed to the Judge hearing the case until he/she has decided all issues between the parties, except for liability for costs.

If the amount lodged is acceptable to the plaintiff he must file a notice of acceptance and serve it on the defendant’s solicitor. all further proceedings are then stayed and the plaintiff’s solicitor can then go ahead and tax his client’s costs to date.

If the lodgement is not accepted and the plaintiff at trial received less that the lodgement amount the defendant will be entitled to all his costs from the date of lodgement to the date of hearing. It is vital, therefore, that a Plaintiff and his solicitor considers the lodgement very carefully.

Personal injury actions

The procedure described above is available in PI actions, too, but is unlikely to be used because section 17 of the Civil Liability and Courts Act, 2004 provides for both the plaintiff and defendant serving on each other a formal offer.

Furthermore, section 51A of the Personal Injuries Assessment Board Act 2007 effectively turns an assessment which is rejected by the claimant in to a type of lodgement as if the claim proceeds to full hearing and the assessment amount is not matched in Court and the Plaintiff will not be awarded their costs. In addition, some of the defendant’s costs may be payable, depending on the decision of the Court.

Discovery

Order 32 of the Circuit Court Rules provides for discovery, which usually occurs at the close of pleadings. Discovery is the process of one party seeking discovery of documents from the other. Read also evidence in civil legal actions-what you need to know.

Either party’s solicitor can also serve a notice to produce on the other party which obliges the production for inspection of any documents referred to in the pleadings.

Joining a third party to the proceedings

This is covered by Order 7 of the Circuit Court rules.

Going to trial

Once the defence has been delivered and any lodgement that might have been served has not been accepted by the Plaintiff the Plaintiff’s solicitor must serve a notice of trial. This is brought to the Circuit Court office where a date will be inserted in the Notice. A copy of this notice must be served on the Defendant’s solicitor.

Outside Dublin the notice of trial serves to set the case down for hearing at the next sittings of the Circuit Court. In Dublin a letter must be lodged confirming that all outstanding discovery matters have been dealt with, proofs have been advised by counsel, up to date reports are available, and there are no outstanding particulars on either side.

The letter should also state the type of case, the likely duration and dates to be avoided, if any.

If a plaintiff fails to serve a notice of trial within 10 days of delivery of the defence the defendant may do so.

Even if a witness has confirmed he will attend it is still strongly advisable to issue and serve a witness summons by personal service or registered post.

Amendment of pleadings

If a party needs to amend any pleading the consent of the Court will be required. Getting the consent of the other party in the first instance will be helpful, too.

Notices of Motion

Notices of motion can be dealt with by the County Registrar and can deal with a wide range of issues such as

  • an order for discovery
  • an order to dismiss an action for want of prosecution
  • an order for the enlargement of time for taking any step
  • an order for directions as to service of a civil bill
  • and many more administrative matters.

Judgment following the trial

Judgment will be given following the trial and a copy of the order can be obtained from the County Registrar.

Judgment in default of appearance or defence

If the defendant fails to enter an appearance or defence the plaintiff can obtain judgment “in default”. The procedures are slightly different between debt recovery cases and other actions in tort and contract. In tort and contract cases the procedure to obtain judgment is by notice of motion and grounding affidavit.

Remittal and transfer of actions

Cases can be transferred from the Circuit court to the other courts-District or High-and vice versa.