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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Keane v. Aer Rianta [2007] IEHC 141 (27 April 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H141.html Cite as: [2007] IEHC 141

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Neutral Citation No: [2007] IEHC 141

THE HIGH COURT

[2004 No. 8651 P]

BETWEEN

JUDITH KEANE

PLAINTIFF

AND

AER RIANTA

DEFENDANT

Decision of the Master of the High Court 27^th day of April 2007

Writing about Discovery in "Access to Justice" (Interim report to the Lord Chancellor) (1995), the radical blueprint for reform of litigation procedures in the UK, Lord Woolf, then Master of the Rolls, stated that "My starting position is an acceptance of the desirability of retaining discovery, because of its contribution to the just resolution of disputes. However, the benefits of a system of discovery will only outweigh the disadvantages if substantially greater control over the scale of discovery is exercised than at present. The solution therefore lies in finding a satisfactory form of control and then ensuring that it is enforced."

Until the reforms proposed by Lord Woolf were introduced in 1999, the leading case in Discovery was Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55. The judgment of Brett L.J. in that case was considered by Lord Woolf at pars. 21:15 ff, and his analysis is reproduced here:

15. "The classic statement of Brett L.J. (the future Lord Esher MR) is in the following terms: "It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly", because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences [emphasis added].… In order to determine whether certain documents are within that description, it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiff's case, but also at the statement of defence and the defendant's case."

16. The test laid down by Brett L.J. is a sophisticated one, more readily applied to the limited number of documents which were being considered by the Court of Appeal in that case than to the vast bulk of documents which have to be considered by parties and their advisers in connection with the complex litigation of the present time. It distinguishes between direct and indirect relevance. It is the inclusion in the test of documents which are indirectly relevant which causes most of the present problems.

17. The result of the Peruvian Guano decision was to make virtually unlimited the range of potentially relevant (and therefore discoverable) documents, which parties and their lawyers are obliged to review and list, and which the other side is obliged to read, against the knowledge that only a handful of such documents will affect the outcome of the case. In that sense, it is a monumentally inefficient process, especially in the larger cases. The more conscientiously it is carried out, the more inefficient it is.

It is hardly necessary to observe that the injustice caused to a litigant who cannot access documents which may prove to be vital is of an altogether different order than the injustice (if indeed it can be so termed) of requiring a respondent to discover reams of documentation which nine times out of ten (indeed in ninety nine cases out of a hundred), though technically "relevant", contain nothing of any significance. That said, Lord Woolf, whose reforms were designed almost entirely by the need to ensure freer access to justice, a level playing pitch for litigants and proportionality in litigation, made changes which he described (at 21:20 op. cit) as "intended to ensure that the jurisdiction to order full discovery, on what is now the normal standard of relevance, is only exercised in the very small minority of cases in which it can be shown to be relevant."

The growing judicial unease with the costs of discovery and its potential to effectively bar access to justice also resulted in reforms in Ireland when, in 1999, the Superior Courts Rules Committee amended the Rules to provide, inter alia, that documents should be sought specifically, on a category by category basis, and that the application should be backed up by an affidavit as to the necessity for the requested discovery.

Following the introduction of the rule change in Ireland in 1999 the (Irish) Law Society published in October 2002 a policy submission entitled "Real Reform, the Law Society's Proposals to reduce the costs of personal injuries Litigation in Ireland" which contained the following (at par. 46): "The relevant court rules for discovery and other interlocutory procedures should be revised and updated. Subject to the requirements of justice, the courts should be given greater discretion to limit discovery where it is not necessary or where it is disproportionately burdensome."

The Society may be of that view, but five years on some of its members have not yet progressed to complete compliance with the new rules limiting discovery to fact-specific categories, and some have moved very little from the old general discovery model. The thinking behind the rule that requests for documents should identify and list the issues to which particular categories were directed was not, as some might have thought, to cause the applicant's lawyers to have to break their cases into bite size pieces for the assistance of the opposing party or the court. It was so that the applicant's lawyers would themselves more rigorously question themselves as to what documents they needed before asking, and so that the reasons and averment of necessity would be carefully considered at the outset of the discovery process, and not just before counsel rises to his feet to make the application in court.

Alas, there are still far too many lawyers who think that all that is required is to ask for discovery of "all documents relating to A, B, and/or C" because "A, B, and C are the facts in issue", and because "the documents are relevant" and (consequently) "needed" in the interests of due process. A request so formulated is identical to a request for general discovery. Such requests are ubiquitous, and undermine the reforms.

The days of general discovery are over. Even with fact-specific categories, the days of discovery of "all relevant documents" are also over. The Supreme Court (per Geoghegan J.), in P.J. Carroll and Co. Ltd and Ors. v the Minister for Health and Children (unreported 1/06/06 [2006] IESC 36) found that:

"Perhaps more often than not, if a document is relevant, it is also necessary. But the separation of the element of necessity from the concept of relevance is nevertheless, important and has real application in some cases. It would seem to me that this is clearly a case where the distinction is important. The documents are relevant but unnecessary."

The rules provide that discovery will not be ordered "if and so far as the Court shall be of opinion that it is not necessary for disposing fairly of the cause," so, to assist the court to form an opinion, the circumstances of the matter need to be set out on affidavit. It is not the opinion of the applicant, the applicant's solicitor, or applicant's counsel that will convince, it is the factual basis underlying or prompting such opinion. It may be a fact that the documents sought are relevant, but that fact alone is no longer sufficient, of itself, to sway the Court.

Discovery will now be ordered only of that subset of relevant documents which the litigant needs. "Really needs" is the phrase used by the Supreme Court in Ryanair v. Aer Rianta [2003] 4 IR 264. "Genuinely needs" is another Supreme Court description. Taylor v. Clonmel Health Care Limited [2004] 1 IR 169. There is a difference between "necessary" and "really necessary". Necessity is a relative concept. An applicant's solicitor may swear that he needs documents, but the court does not simply take that averment at face value, because real need is an objectively determinable state. The solicitor's opinion is not a basis on which the court can determine the matter. The courts need, on oath, the facts which led the solicitor to that opinion (and the respondent may wish to dispute such facts). The court will then decide whether it shares the applicant's opinion.

In McDonagh v. Sunday Newspapers Ltd. [2005] IEHC 183 Mrs. Justice Macken (then of the High Court) rejected the discovery application, observing that "the applicant invokes a general basis of "necessity". I am not satisfied that such general statements are appropriate. The applicant must indicate in what regard it is necessary to have such discovery. (Likewise) an averment that "discovery will avoid delay and save costs" tells the court little unless there is some factual matter upon which the court can be reasonably satisfied that this is the case .. or .. unless the description of the category of documents actually used is such as to make it obvious that it will, in fact, avoid delay and save costs."

For future reference, practitioners should please take note that the facts needed to be sworn to do not include the applying party's allegations. For the purpose of discovery, it is presupposed that the applicant's pleaded allegations are true. The need for discovery derives from some evidential deficit or other circumstance which create a difficulty for him in proving his allegations or some other litigious advantage or disadvantage: it is these circumstances which must be attested to.

Unfortunately, some practitioners seek discovery solely on the emotive basis that a wrong has been done and must be righted. Indeed, given the pressure on courts' time, such emotive appeals may secure an order of discovery which is, more or less, general discovery. That is technically in error (the rules say it should not be ordered, but the court always retains a discretion), but since it is an error at an interlocutory stage, it is not irreversible and its consequences are of a limited nature.

The temptation to order, in effect, general discovery is at its most obvious in instances of heinous allegations of sexual abuse and the like. In this type of case, and in cases where conspiracy is alleged, or malice/malicious intent, the applicant usually wants to know just who knew what, and when: somebody must be at fault. It is a blame game and the applicant demands discovery of a breadth appropriate to a tribunal of inquiry with broad terms of reference and no judicial responsibility. Tribunals are not courts, and courts are not tribunals.

Litigation is unfortunately drifting towards the non-specific. Courts are being asked to find out all the facts and then decide whether any law has been broken. The formulaic listing of the different reliefs sought, and the different causes of action asserted, is becoming now largely irrelevant: list everything you can think of, because in the final shake out, it won't matter if you've got it wrong.

Such thinking produces extraordinarily lengthy applications for discovery. Do you need to find out the in-house standard to prove "foreseeability"? Is it "really" or "genuinely" necessary? If you plead "justification" in defamation, or anti-competitive behaviour, should this open the door to broad, perhaps oppressive discovery being ordered against your opponent?

And now, an extra consideration: it is "proportionate"?

"Proportionality" concerns rationalising the volume of documentation being sought. If it is clear that you really or genuinely need evidence of a particular fact, what category of documents is most likely to assist? Identify that, and eliminate the categories which are less likely. Or in the case of a category which, in former times, would have been described as "too broad", focus on the particular part of the category, a subset of the documents, which will most probably yield the evidence sought.

Practitioners now have conflicting signals as to what to do with discovery requests which are clearly disproportionate. The court may decide to edit the category, re-wording it to confine it to those documents which are most likely to prove the fact concerning which the category has been sought (the court reads the "reason" to identify the fact – if the reason is non-specific, the application goes nowhere!). Or the court may decide not to embark on an extensive redraft of a request which is very far removed from the specificity which the rules now require, and dismiss the application with costs, leaving the applicant the option of starting again (having, no doubt, explained to the client that costs have been "wasted")

The history of the litigation in the case of Swords -v- Western Proteins Limited [2001] 1 I.R. 324 is instructive. In that case – one of the early written decisions on the new discovery rules – the then Master tried to treat non-compliance with the rules as forgivable, and made an order for discovery even though the requesting letter was clearly inadequate. Obviously, the Master thought it was a case in which discovery would normally be ordered under the old rules. On appeal, the President of the High Court, clearly exasperated with the dilution of the discipline of the new rules, determined that the Master had acted in excess of his "jurisdiction". This ruling was reversed in the Supreme Court which, as it normally does, approved of the Master's approach.

But subsequently, in Framus Ltd. v. CRH Plc [2004] 2 I.R. the Supreme Court itself became exasperated by the loose wording of the categories of documents being sought and, although a pattern of judicial editing and re-wording of categories had by then become apparent in other cases, dismissed poorly drafted categories out of hand, choosing not to be put upon in this way by solicitors who could not propose an appropriate specific wording. The Supreme Court (per Murray C.J.) stated that: "In certain circumstances, the court may grant discovery on a more limited basis than that sought where it considers it appropriate to do so. On the other hand, it is not for the court to re-draft an applicant's motion where it in effect amounts to a form of blanket discovery, which I consider this particular request to be. It may be appropriate to do so where a more limited category can be readily defined and it is in the interests of fairly disposing of the application. I do not consider this an appropriate case to try and fashion some limited order that might suit the plaintiffs, even if this could be done."

When should the High Court do otherwise? Answer: ultimately, it is a matter for the discretion of the court. And if the court opts to patch up a defective application, the court may make a costs order which reflects the poor state of paperwork presented, and the consequent prejudice to the respondent.

Yet after Framus, it is not a discretion which should be exercised lightly. Fairly obviously, the applicant should not be assisted by the court beyond the point of prejudice to the respondent. This presumably means that the reworded category should in all cases be a subset of a category sought and not an entirely new category. And it seems also obvious that the up-dated version of general discovery ("all documents related to facts A, B and C") should never be the subject of a complete judicial re-write. If the lawyers cannot produce even a workable draft, they should be told to start again.

And where the application does not state a specific fact(s) concerning which the discovery has been sought, the court should not speculate as to the likely eventual content of the Advice on Proofs. Where the specific fact is stated, a re-worded category should be clearly focused on it.

All of which case law above cited produces the following synthesis: there is a limit to the court's tolerance of applications which do not comply with the rules of court. You may initiate a non-compliant or purely emotive application and prosecute it, but you do so at your peril (and may even suffer a wasted costs order). But the court has a discretion to overlook non-compliance.

In this particular case, I think I will exercise the discretion, even though the categories sought are (a) all documentation relating to…; (b) all documentation relating to…; (c) all documentation dealing with… and (d) all documentation which deals with… [Incidentally, strictly speaking, these are not categories of documents at all].

The plaintiff, an Aer Rianta employee then aged twenty-eight, was injured when the "office type chair which she was using fell backwards due to an absent wheel or castor at the base of the chair". She was pregnant at the time but fortunately all went well subsequently in that respect except that she was unable to relieve back pain and same is still present and has now (Dec. 2004) become a "constant aching in her low back and right leg".

Apart from alleging that the chair was defective she also alleges that the defendant employer "failed to take any or any proper heed of prior complaints of the dangerous nature of the said chair" and also failed to warn the plaintiff that it was dangerous. Both of these allegations are surplus and will not be investigated by the court. The court will not concern itself either with the allegation that the defendant "failed to repair or replace the wheel(s) or castor on the chair". All of these allegations are ancillary. [If the chair was defective, she wins. If not, she loses.] In further particulars the plaintiff alleged that the chair "had wheels missing" and "tilted backwards" and in its defence the defendant pleads contributory negligence including "failing to use her seat in a proper or appropriate manner".

The plaintiff's solicitor refers to the defendant having written to the effect that they had carried out an in-depth investigation of the chair, and that it is no longer available because it was replaced "due to employee requests". The defendant's said letter(s) is not exhibited.

Now, returning to the categories of discovery! The first is "All documentation of whatsoever nature relating to the make and type of chair provided for use by the plaintiff on the date of the accident". Looks impressive, but on close examination one realises that proof of the make and type isn't going to prove any defect.

The third is all "documentation of whatsoever nature dealing with repair and/or replacement of the chair". The plaintiff's solicitor says she needs this because it is her client's case that the chair was "faulty, broken and in need of repair". The documents, she says, are clearly relevant. And the fourth is "all documentation which deals in any way whatsoever with the specific chair in question." Clearly disproportionate!

The reality in this case is that the defendant appears to be suggesting that it holds some useful cards in its hands. The plaintiff does not have any difficulty (apparently) confirming her story in court, up to and including the fact that the chair was defective. She does not need an engineer. Indeed no engineer will be of any use to her now, the chair having been disposed of. So the question is: on what basis is the defendant alleging that (a) the chair was not defective and (b) the plaintiff herself caused the fall?

The second category sought is documentation relating to "requests and/or complaints" by staff. The plaintiff does not need to prove complaints. Complaints are not a material fact. The defendant's state of knowledge is not a material fact. But I do not think the employer should be allowed first to resist inspection because the chair has been replaced following employee complaints and then to resist discovery of the records of such complaints which (apart from being evidence of complaints) are likely to describe defects. The only issue, essentially, is whether it is more likely that the fall was caused by the plaintiff's own carelessness than by a defect she can attest to and of the sort complained of previously by others.

I will order discovery of a subset of category two as follows: "all written complaints by staff (including records of complaints made verbally) as to castors or wheels missing from or falling off chairs supplied to employees during the eighteen month period prior to the plaintiff's alleged accident."

Costs to the defendants with a stay on execution until the determination of the proceedings.

Approved: Master of the High Court