An Unpleasant Discovery

It would be wrong to say that the Irish legal profession (barristers) are interested in ideas. (Solicitors would never have it said of them at all). This is not to say that they, some of them, are not interested in some ideas. The idea of “justice” springs to mind as an example. But that is the very point of failure of those others not so interested. “Idea” is defined succinctly in my “Fontana Dictionary of Modern Thought” (2nd Ed.) as “The smallest unit of thought or meaning, the elementary constituent of beliefs or assertions”. This post will assume “justice” is an “idea”.

For cultural reasons, in Ireland justice is what a system of law is reputedly about, if we understand “justice” to be law as integrity.

We would not expect to find (we could be surprised) many defenders, in Ireland, of Judge Posner’s point of view.

But it is difficult not to feel that the current Irish practice on civil discovery is expressive, somehow, of an idea proper to Judge Posner, that is, an overemphasis on the economics of litigation (a selective overemphasis, it should be said, where actual judicial practice is replete with references back down to inferior courts following reversal of the original judgment).

The reputed inspiration for the current Irish practice on discovery (the rules for which practice are found in Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) was Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. in which a judge suggested the introduction of changes to the Rules of the Superior Courts in relation to discovery.

The new rules introduced an obligation, in seeking discovery to write to the opponent requesting voluntary discovery; the letter must specify the precise categories of documents required to be discovered and give reasons why those categories should be discovered.

In default of agreement, the applicant must apply to the court for an order for discovery on affidavit and aver, in the affidavit, the belief of the deponent of the necessity for the discovery, as previously set out in the letter to the opponent, and assert, on oath, the validity of the reasons for discovery of the stipulated categories.

Prior to the introduction of Statutory Instrument No. 233 of 1999, the lawyers for a litigant, required to swear an affidavit of discovery, encountered a mild dilemma; they could not impose on the opponent their client’s view of the issues in the litigation and the relevance or otherwise of any particular document to those issues. They had to adopt a broad view of relevance; it had to extend to a view which the opponent might take or hold. The deponent had to depose to such documents as were arguably relevant even if those documents damaged the case of the deponent (of course, if the document damaged the deponent’s case, it was relevant.)

Currently, it is the applicant who must establish relevance and necessity. Significantly, that burden must be discharged without the benefit of knowing what documents the opponent has let alone having inspected the opponent’s documents.

The result is to launch the applicant into an abstract exercise where he/she claims relevance and necessity without being in a position to actually prove what is averred. The best that can be hoped for is to point to some category of document, the relevance of which to the issues in the litigation, accords with the prior view of the judicial authority charged with deciding the application.

This process of voluntary request followed by application to court can be time consuming. It certainly delays the trial of the matter, but not by much more than the preceding process of discovery.

The process has one purpose; to limit the access of the applicant to the documents in the possession of the opponent.

As an idea it has severe limitations if the overriding objective of litigation is to do justice. Indeed, it is diametrically in opposition to the “justice” objective, if justice is law as integrity and not some lesser good.

Of course it is true that many documents are discovered in litigation, the need for which was dubious, but that is hardly an argument for limiting every litigant to a regime as conceived and embodied in Statutory Instrument No. 233 of 1999.

Put another way, the circumstances provoking the judge in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. amounted to an attempt to make a principle of what was only “anecdotal evidence”.

That some members of the Irish High Court currently make orders for the provision of, effectively, “general discovery” is superior anecdotal evidence to the rumination delivered in Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. They prefer to do justice than to respect a dubious proposition simply because it is in a statutory instrument.