News?

The Irish Independent has a story HERE about documents and the difficulties with them.

I have written about the difficulties over documents previously HERE and HERE and HERE.

The Independent’s view about difficulties are not exactly the difficulties I have addressed, and of course, one should take what is printed in newspapers with a pinch of salt.

Nevertheless, what about the Independent story?

Well, it says there are legal issues arising in the review by Mr. Appleby the Director of Corporate Enforcement of documents from Anglo Irish Bank Corporation, but identifies only one; the privilege attaching to legal advice. It hints that the documents containing such advice may be inadmissible in any future criminal (or civil?) trials.

This may be true, but those documents must be relatively very few. In addition, if the “advice” is in fact correspondence between conspirators, the fact that one of the conspirators is a lawyer is not a bar to the introduction of the document in evidence against all the conspirators, including and particularly, the lawyer.

One sentence…

“Officials from the director’s office are currently working through the seized material with the bank’s legal advisors to see what documents can be used for the purpose of the investigation.”

…is of particular interest. I have never encountered a criminal investigation where the agents of the suspect debated the quality or admissibility of the evidence with the investigators, if that is what the newspaper is reporting as happening here.

I suspect the Bank’s lawyers are arguing against admissibility (and for privilege?) rather than assisting in the search for evidence.

If so, that would be the norm, (in civil proceedings) but it should not be the norm.

In Ireland, until 1999 it was the duty of lawyers, in litigation, to facilitate their client to make disclosure, on affidavit, to the opponent, of all relevant documents helping or hindering the case of the client.

The Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) put a stop to all that. Henceforth, a litigant was obliged to identify, specifically or generally, the documents it was believed the opponent had which helped the litigant and/or which hindered the opponent, and to show that it needed those documents.

In practice this is a nonsense.

It makes the delivery of justice turn on the quality of guesswork of the applicant litigant. It opens the applicant to derision and obloquy for coming to court and seemingly “fishing” for documents.

Possibly the Statutory Instrument was intended to address a problem now being encountered by Mr. Appleby; too many documents. What judge would want to preside over a trial with too many documents in as evidence? It would be right to cut down on the volume of documents in any trial, particularly if they are not relevant.

But few legal proceedings are like Mr. Appleby’s case, if there is one, and, of course, Mr. Appleby’s case is not yet a civil action. Even if it turns out to be a civil action, Mr. Appleby will, unlike ordinary litigants, have had the opportunity of eliminating the guesswork from his request for documents when he asks Anglo Irish Bank Corporation to swear an affidavit of discovery.

The judges of the United Kingdom, no more than here, also wanted to avoid trials with too many bits of paper to be examined. To achieve this end, they introduced changes to their rules of court. (Actually they turned their entire rule book inside out, but that’s another story).

In the UK, a litigant is entitled to receive from the other party, “standard” discovery. The lawyer for the party making standard discovery is obliged to facilitate the client to make disclosure, on affidavit, to the opponent, of all relevant documents, coming readily to mind or easily found, which helps or hinders the case of the client.

If the circumstances of the case require more extensive discovery, it is open to the applicant for discovery to apply to court to get further and better discovery. The burden of showing that this is warranted will be on the applicant, but this situation is substantially different to that of an applicant in Ireland, not least because of different attitudes.

The UK rules state that the purpose of the rules are to do justice; the Irish rules do not state this. Instead, it is taken as a given that the courts would not seek any other outcome except justice. Arguably, the latter position is better than the former; after all, who would trust someone who protests that what they are doing is, always, seeking justice?

But the UK position should be seen in the light of “pre-trial discovery”. In the UK it is possible to get a court order for disclosure of documents, without (and usually, before) issuing proceedings. This is not possible in Ireland.

With hindsight, the volume of documents may not have been the problem it was perceived to have been. Most cases, particularly claims for compensation for personal injury, require little or no work to make adequate and proper discovery. The paper burden is often slight.

In addition, in cases involving greater volumes of discovery, the modern computer and the modern copier, having generated the volumes of paper, can, and do, assist in managing that paper.

Ironically, full and proper discovery is likely to relieve a court of having to read any of the discovered documents; it is easier to settle cases where the parties have not achieved unfair advantage as they enter upon the trial stage of the proceedings.

A settled case is a good case from a judge’s point of view.