THE HIGH COURT 

 [2002 No. 9855P]

BETWEEN/

MICHAEL LINSLEY

PLAINTIFF

AND

CADBURY SCHWEPPES INTERNATIONAL BEVERAGES LIMITED

DEFENDANT

Decision of the Master of the High Court, 19th February, 2004. 

	Two recent decisions of the Supreme Court have confirmed, if confirmation was ever required, that discovery of documents ought to be ordered only when necessary for disposing fairly of the action (“in the interests of justice”).
	In the first case (Ryanair v. Aer Rianta 2/12/03), Fennelly J. in his judgment employed the phrase “genuinely necessary”.  In the second case, (Taylor v. Clonmel Healthcare Ltd., 11/2/04.), Geoghegan J. used the expression “really needed”.
	The recent judicial offensive against the abuses of general discovery includes requiring the applicant to specify in writing the “reasons” underlying all discovery requests and to verify the necessity for same if the defendant has not agreed to discover voluntarily.
	Where the judgments may at first sight appear to differ is in the matter of how the “necessity” is to be established to the satisfaction of the court.  This is obviously of concern not only to the party requesting discovery (who in this decision hereinafter we will refer to as the plaintiff) but also to the party confronted with a request for voluntary discovery (the “defendant”) and who must judge whether or not to accede to the request.
	The two Supreme Court judgments deal with difficulties at the two extremes of proofs as to necessity.  One (Ryanair) specifically rejects a formulaic, non-specific approach to the reasoning of the request: each category requested must be supported by specific reasons rather than generalisations (and verification of “necessity”, by necessary inference, to be by way of factual averments as to the particular circumstances in which, if discovery be denied, the plaintiff will be disadvantaged).
	The other judgment (Taylor v. Clonmel Healthcare Ltd.) decries the imposition of apparently pointless, perhaps even unjust, technical requirements of that sort where the relevance and necessity (“in the interests of justice”) is patently obvious to all concerned, and clearly authorises the Court (and the Master, incidentally), to waive non-compliance with the specifics of S.I. 233 where “necessity” is self-evident.  (See my decision in Rose Ann Hardiman v. ERHA 17/10/03 which suggested such an approach.)
	It follows, therefore, that where “necessity” is self-evident to us as lawyers, defendants should agree to voluntarily discover, frailties in the formal documentation notwithstanding.  In other words, seek not to rely on technicalities (of the “jurisdiction” of the Master variety, or otherwise) as a justification for refusal.
	On the other hand, there may be a clear question mark over necessity. Necessity does not arise simply because there is an issue between the parties, or because the plaintiff does not have (and the defendant does have) certain documents.  Nor is discovery necessary simply because counsel advises that such is the case.  There is necessity clearly when the plaintiff has an evidential deficit in respect of a material fact.  Anything short of that level of “litigious disadvantage” is more problematical and ultimately may be in that realm of “greyness” where a sympathetic exercise of the Court’s discretion may have to be invoked by the plaintiff.
	[An important subsidiary dispute will arise as to whether all of the documentation comprising the category sought is necessary, or whether a portion only of the documentation will be sufficient for the plaintiff’s purposes.  When the defendant submits that the discovery sought is “too broad”, that is the concern he is referring to.  It is in this context that the specific reason advanced by the plaintiff must be examined.  Can his asserted difficulty in proving X be met by discovery of a much more limited category than sought?  Likely to fail the test are categories described as “all documents related to X”.  The defendant may ask the Court to re-write the description of the category.  If one document will unambiguously prove or disprove X, only one document will be “necessary”.]
	The principle thus stated, it is (or ought to be) abundantly clear that non-material facts, even if in issue, will never be the basis of a successful discovery application.  In this regard, the only material instances of carelessness on the defendant’s part are those which, in logic, played a causal role in the events of which the plaintiff complains.  If the defendant’s driving was careless and the Court is so satisfied, no issue as to whether the defendant had or had not driven without adequate driving school training will be adjudicated.  (Nor indeed will the Court proceed to determine whether or not the defendant had been responsible for previous accidents on the basis of similar fact evidence (mostly inadmissible) supposedly corroborative of negligence on the occasion of the plaintiff’s accident).  Contrariwise, if the plaintiff has not established careless driving on the defendant’s part as causative of this accident, it will not pause to consider adjudicating other, non-causative, issues before dismissing the plaintiff’s claim. Either way, these are disputes concerning “surplus” facts of no interest to the Court.
In a factory accident context, the failure of the defendant to comply with his statutory obligation to prepare a safety statement is just such a “surplus” fact.  I always consider most carefully requests for discovery of safety statements before rejecting them.  The non-existence of such a statement is directly probative of nothing except failure to compile same and though if indirectly probative of the defendant’s attitude to safety issues, this attitude is rarely material.  The contents of same if one exists is not probative of the standard of care actually implemented.  And though undoubtedly probative of the defendant’s knowledge of the existence of a risk, if the risk is referred to therein, the defendant’s state of knowledge is hardly ever a material fact in such a case.  But, it is argued, the safety statement is such a small document and the defendant has it, has he not?  Why not discover it, so?  Because, put shortly, it is not discoverable on principle.  Since it is not probative of any disputed material fact, it is neither “genuinely necessary” nor “really needed”. 
In the Supreme Court decision in Taylor v. Clonmel Healthcare Ltd. above cited, Geoghegan J. noted that the rationale for the amendment of the Rules of Court concerning discovery (by S.I. 233 of 1999) was to highlight for practitioners the test of necessity in the interests of justice, which test had been largely overlooked previously.  The mechanism employed in the new rule was the introduction of a new term into the lexicon: the “reason” supposedly underlying the request for the voluntary discovery requested.  There is no great art in this: the concept of “reason” is merely a combination of two other factors namely issues and necessity.  What is in issue is always self evident from an examination of the pleadings.  Nevertheless, the failure to pinpoint a particular factual issue in the request may mean that the respondent cannot consider whether or not to dispute discoverability on the basis of materiality and/or causality.  What is necessary may sometimes be obvious when the category is focused on an issue of undisputed materiality, and where you have the documentation and he needs it!  On the other hand, if he has all the evidence he needs, sourced elsewhere (e.g. his client) what is the need for discovery?
	The overturning of the Swords decision, however, means that defendant/respondent cannot know whether resistance to the application, relying on inadequately specified “reasons”, may ultimately prove pointless (or expensive).  Suppose a defendant is faced with a request for discovery of a category for a non specific reason such as “the plaintiff is curious to know what is in the file” (a not uncommon reason appearing in different guises, and always rejected as “fishing”), what is he to do, knowing that it is open to the Court to substitute a “good” reason which suggests itself in the course of the hearing of the application, or in the case of a category which is patently discoverable (but not for the reason stated) to order discovery without bothering to be specific as to the reason (because its self-evident)?  The answer appears to be that in the latter (patent discoverability) case, he should agree to discovery, but in the former instance (a non specific or “bad” reason) come to Court and seek his costs if the application only succeeds after the Court’s intervention and re-specification of the reason, on the basis that he had been prejudiced by not having been advised at the outset of the true, sustainable, reason for the request. 
In this case the plaintiff asserts in his Statement of Claim that “while walking down a gantry to a walkway between tanks, [he] stubbed and/or caught his toe between the slats on the said gantry and fell forward”.  He suffered a soft tissue injury to his left thumb with aggravation of pre-existing arthritis at the base of the thumb.  Six months later, still symptomatic, an arthrodesis was performed.  Fusion was initially unsuccessful and had to be fixed with two screws about five months further on.  He may be limited to light duties for the foreseeable future.  
	He would like discovery of three categories of documents as set out below, each with the specified reasoning in brackets summarised:
(a)	all documentation relating to previous slip/trip and fall accidents, which occurred at, on, or close to the gantry and/or locus of the plaintiff’s accident.
(to show the state of knowledge of the defendant regarding the possibility of persons tripping and/or falling at the locus)
(b)	all complaints made in relation to the type of flooring on the gantries in the defendant’s premises.
(to determine if complaints had been made)
(c)	All safety inspections as conducted following previous tripping and falls on gantries in the defendant’s premises.
(to determine if inspections had been carried out and if preventative recommendations had been made)	 
Although the defendant denies that he knew that a “walkway/gantry consisting of metal slats with gaps therein” was a hazard, the issue of the defendant’s (alleged/denied) knowledge is not material.  It is the same issue which underlies both (a) and (b).  Category (c) however, relates to the allegation that the defendant “failed to ensure by inspection…that the place of work was safe”.  The defendant denies this failure.  This disputed allegation is, however, also “surplus” in the sense above described, because if the plaintiff proves that the gantry was indeed hazardous the court will not enquire as to whether or not the defendant had previously inspected it.  If, on the other hand, it was safe, then there is nothing further to be made of the inspection issue.
	It follows from the foregoing analysis that the defendant’s refusal to make discovery voluntarily was correct.  But can I now substitute a better reason for any of the categories sought? If it is obvious that the defendant has evidence not available to the plaintiff, one must ask, in fairness and justice, whether such evidence may assist the plaintiff in proving material facts other than those specified in the reason grounding the request for voluntary discovery.
 One easy first test is to put aside the question of what the reason or reasons might be, and ask whether discovery is appropriate or necessary, going by the basic principles of justice in which we are hopefully well versed; put another way, whether the necessity, in justice, for the discovery sought is self-evident (i.e. the plaintiff does not have essential evidence of a material fact).  If it is, then the identification and specification of the reason is a technicality with which the court need not be concerned.  Discovery may be ordered, with the appropriate costs order to reflect the prejudice occasioned to the defendant by the plaintiff’s failure to specify same at the outset. 
	One possible substitute reason here would be that, though not themselves directly probative of the content thereof, the inspection records might lead to evidence as to the condition of the gantry flooring.  But discovery could be directed on that basis only if there was some specific evidence before the Court that the plaintiff would have a difficulty in proving, without discovery, the condition of the flooring at the date of the accident.  The necessity for discovery is certainly not self-evident and mere “verification” of general, non specific, “necessity” would not be persuasive.

	Discovery will not be ordered in this case.  There is nothing in the documentation sought which the plaintiff needs to advance his case (the Peruvian Guano test).  Nor is the documentation going to yield (or lead to) evidence to enable the plaintiff meet the allegations of contributory negligence laid against him – another basis for characterising discovery as necessary in the interests of justice.  It cannot even be said that anything in the documents sought would assist in corroborating evidence otherwise available to the plaintiff – a basis sometimes advanced (rarely successfully) as suggestive of possible injustice to the plaintiff.
	It is not rocket science.  Discovery will be ordered at the court’s discretion when the court is convinced that a fair trial requires same.  S.I. 233 requires the party seeking same to specify the justifications for his request, with a view to progressing the litigation without the need for a court application.  But the interests of justice will always prevail over concerns about non-compliance with the Rules.