High Court of Ireland Decisions

THE HIGH COURT

 

COMMERCIAL COURT

[2025] IEHC 119

       RECORD NUMBERS 2016/6897P

2016/10801P

BETWEEN

RECORDED ARTISTS ACTORS PERFORMERS LTD

PLAINTIFF

AND

 

PHONOGRAPHIC PERFORMANCE (IRELAND) LIMITED, THE MINISTER FOR JOBS, ENTERPRISE AND INNOVATION IRELAND AND

THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT OF Mr. Justice Twomey delivered on the 27^th day of February, 2025

INTRODUCTION

1.                  It would be unheard of for medical professionals today to be using 19^th century medical techniques and equipment, such as leeches, while CAT scanners and other modern equipment lay unopened on the shelves. However, when one considers the Report of the Review Group of the Administration of Justice of 30 October 2020 (the "Kelly Report"), this is, in effect, what is happening today in Irish courts.

2.                  This is because the Kelly Report highlighted how 19^th century legal techniques (i.e. discovery rules based on the case of Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co. (1882) 11 QBD 55) are still being used in today's courts. This is despite the fact that the Kelly Report stated that these rules are 'completely unsuited' to an 'era of the mass proliferation of electronic data and information' (page 187). In language that could hardly have been starker, the Kelly Report stated that these 19^th century discovery rules now operate as an 'obstruction to the administration of justice' (page 188). Accordingly, the Report called for the 'abolition of discovery as it is now known' (page 188).

3.                  Crucially, the Kelly Report also provided what might be termed an 'off the shelf' solution to remove this obstruction to justice. This is because instead of simply calling for someone else to draft replacement discovery rules, the Review Group drafted an order to replace the 19^th century rules rules, which is contained in Appendix 3 of the Report.

4.                  However, in the four years since the publication of that Report, this draft order lies, in effect, unimplemented on the shelf, while the courts are still forced to use 19^th century rules that 'obstruct' justice. Thus, in this case, counsel for the plaintiff, after referencing the applicable discovery rules, noted:

"that may change if the Kelly Reforms are ever implemented, but at the moment that's how we have to do things". (Emphasis added)

5.                  The absence of reform in the four years since the publication of the Kelly Report is particularly surprising since the need for such reform has been highlighted for well over 20 years. For example, in Sheehy v Government of Ireland, High Court, 20 July 2002 at page 5, the High Court noted that the rules on discovery:

'rather than assisting the administration of justice [the discovery process] had over the years become a potential source of injustice itself' (per Kelly J.) (Emphasis added)

6.                  Similarly, it is over 10 years since Clarke J., as he then was, in Thema International Fund Plc v HSBC Institutional Trust Services (Irl) and Others [2011] IEHC 496 at paragraph 2.5, described the current law of discovery as having created a 'monster'.

7.                  Furthermore, it is six years since the Supreme Court clarified just how, in financial terms, discovery has become a monster. This is because in Tobin v Minister for Defence [2019] IESC 57 at paragraph 7.7, Clarke C.J. noted that 'upwards of 50%' of the entire legal costs of a case can be attributable to discovery. Since High Court cases are already at 'prohibitive' [1]   levels, and so are often in the hundreds of thousands of euros, all of this means that some litigants will literally have to pay hundreds of thousands of euros to lawyers to use 19^th century legal techniques, even though those techniques are an 'obstruction' to justice.

8.                  While hundreds of thousands of euros in legal fees is obviously in the financial interests of lawyers, [2] the person suffering because of the enormous cost of 'monster' discovery is the citizen who has to pay the huge fees involved. While the courts have no role in changing these 19^th century rules (as this is the job of the Oireachtas), it is however the role of the courts to try to improve the system for litigants wherever possible. [3]

9.                  Accordingly, what this Court can do, as has been done by the courts previously, is highlight the 'monster' that discovery is, and perhaps highlight in terms accessible to the ordinary citizen why there is such a pressing need for its reform. This case provides such an opportunity. This is because there were submissions on behalf of the defendant that approximately 1.78 million documents had to be searched for the purposes of discovery, which was whittled down to 81,378 potentially relevant documents. These are enormous amounts of documents, for the purposes of resolving a single dispute between two parties. This Court was told that it would take seven weeks for six reviewers to review the 81,378 documents at a rate of 400 documents a day.

10.              Thus, if there was just one lawyer reviewing the documents, it would take him/her almost a year working full time on the discovery. This means that a person who is unlucky enough to be involved in litigation in the High Court could end up having to pay for one lawyer to work full time doing nothing else for a year for the purposes of just one aspect of the litigation, i.e. discovery. To put this into terms, which every citizen might understand, if that lawyer was paid €150 per hour (the rate which Simons J. held in AIB Mortgage Bank v Kelly [2025] IEHC 34 at paragraph 33 was a 'reasonable' rate for counsel), it could cost circa €250,000 for discovery alone.

11.              It is important to remember that this is just an estimate (and a very rough one) of the costs for one defendant's discovery in one High Court case. However, it is also true that if the plaintiff's discovery costs were at the same level as the defendant's, the losing litigant (who normally has to pay both sides' costs) could be forced to pay up to €500,000 for the benefit of using 19^th century discovery rules, which are an 'obstruction' to justice.

12.              With costs like these, this case therefore starkly illustrates in euro terms how discovery is a 'monster' and why the Kelly Report called for its abolition.

13.              In light of the failure to implement the Report's recommendation, it is impossible to avoid noting that the Review Group had specifically hoped that, by providing an 'off the shelf' solution for the Oireachtas, its recommendations would be easily implemented and so avoid being left on the shelf, like so many other reports. This is clear from the very opening words of the Report, [4] where it is stated:

"Lytton Strachey in his short biography of Florence Nightingale records her worry that the report of the Royal Commission into the health of the army 'would like so many other Royal Commissions before and since, turn out to have achieved nothing but the concoction of a very fat blue book on a very high shelf'.

Not much has changed since then, as we are all too familiar with reports of various bodies, meticulously prepared and containing valuable recommendations for reform or innovation, which have met the fate identified by Strachey. In an effort to avoid such a result the Review Group determined at its first meeting to produced recommendations which would be practical, affordable and capable of implementation with as little fuss as possible." (Emphasis added)

14.              Despite these attempts by the Review Group to ensure that the Kelly Report would not be a 'very fat blue book' on a 'very high shelf', the reforms have yet to be implemented. All of this means that this Court, which is supposed to administer justice, has no choice but to apply 19^th century discovery rules that 'obstruct' justice.

ANALYSIS

15.              Counsel for the plaintiff ("RAAP"), while acknowledging that there have been unheeded calls for the reform of discovery, points out that the law of discovery today is still governed by the 19^th century 'relevance' test. As already noted, this test can lead to millions of documents having to be reviewed to see if they are discoverable, and then disclosed to the other side if their disclosure is 'necessary' for the fair disposal of the case.

16.              In reliance on the strict terms of the combined 'relevance and necessary' test, RAAP claims that it is entitled it something that might appear surprising to the lay person. RAAP claims that, based on these 19^th century rules of discovery, it is entitled an order from this Court requiring the defendant ("PPI") to discover/disclose to RAAP documents, even though RAAP has (or should have) those documents already in its possession.

Does B have to discover documents to A, if A already has the documents?

17.              Thus, the first issue in this case can be summarised as follows:

·         Does litigant B have to discover and produce to his opposing litigant (A), the letters, emails etc about their dispute which B, or his/her solicitor, previously sent to A, even though A has, or should have those documents already in his/her possession?

·         Similarly, does B have to disclose and produce to A, the letters, emails etc about the dispute which B, or his/her solicitor, previously received from A, even though A has, or should have retained copies of those documents?

18.              Since we are dealing with letters, emails etc which concern the dispute, the documents are clearly 'relevant' to the dispute.  Accordingly, the key question therefore is whether it is 'necessary' for them to be disclosed/discovered to A, if A already has those documents in his/her possession? RAAP claims that the under a strict reading of the law of discovery as it currently stands, RAAP is entitled to an order from this Court forcing PPI to discover documents to RAAP even though PPI has or should have those documents already in its possession.

The law of discovery in context

19.              The background to a consideration of this question is that forcing a litigant by court order to spend time and money to discover every possible document that is relevant to a dispute is part of what has been called by the Supreme Court in Tobin as the search for the 'perfect justice' (at paragraph 7.9).

20.              However, since we live in an imperfect world, there is in fact no such thing as 'perfect' justice. Accordingly, a search for perfect justice is futile. More significantly, the Supreme Court in Tobin also made clear that the problem with this search for 'perfect' justice (via 'perfect' discovery) is that there are huge costs associated with discovery. This is because, as illustrated by the submissions in this case, it often involves teams of lawyers spending weeks on end going through literally millions of documents, because so much information is stored electronically, in order to assess their relevance to a dispute.

21.              Accordingly, it is not the search for a 'perfect justice' per se, which is the problem, even though this should be recognised as futile. Rather it is the cost of that search, which is the problem. This is because at paragraph 7.7 in Tobin, the Supreme Court (per Clarke C.J.) noted that:

"There are certainly some types of cases where the cost of complying with discovery obligations may amount to upwards of 50% of the total cost of a case. Against that backdrop, it is not difficult to see that overbroad or disproportionate discovery can itself operate as a barrier (or perhaps an increased impediment) to access to justice. It can undoubtedly lead to parties feeling forced to settle proceedings on terms which do not reflect the strength and weakness of their respective cases, but which are heavily, and inappropriately, influenced by the fact that going through a discovery process will place a very significant financial burden on the party concerned." (Emphasis added)

Thus, the pursuit of the perfect discovery and so, 'perfect justice' can, in this way, operate as a barrier to justice. Since the administration of justice is the raison d'être of the courts, in this Court's view, the 'monster' nature of discovery (and how it can obstruct justice) is an important fact to be borne in mind by this Court every time it is forced to apply a 19^th century test set down in the Peruvian Guano case in a modern context.

The law of discovery applied to this case

22.              As regards the precise nature of the 19^th century discovery rules, these were comprehensively set down in Tobin, and do not need to be restated here. As regards their application to this case, there was no dispute between RAAP and PPI that the Tobin case sets out that for documents to be discoverable, they must be relevant and necessary for the fair disposal of the case and also that a document that is relevant is presumed to be necessary.

23.              It was also not in dispute that where documents are relevant, the burden falls on the party resisting the discovery to establish that the documents are not necessary to be discovered because they are confidential or because their discovery would be onerous.

24.              In reliance on these principles and in the absence of any dispute on them, RAAP claimed that it was entitled to a court order against PPI for it to discover documentation to RAAP that had previously been exchanged between RAAP and PPI. These are the documents set out in categories 2, 3, and 4.

Categories 2, 3, and 4 sought by RAAP from PPI

"Category 2

All of the information provided by PPI to RAAP supporting or substantiating PPI/PPL's calculation/allocation of licence revenues to RAAP from 21 October 2016 onwards

Category 3

Copies of all of PPI's requests for information from RAAP for the purposes of PPI's allocation of licence revenues from October 2016 onwards and all of RAAP's replies to the said requests for information.

Category 4

Copies of all of RAAP's requests of PPI to agree a methodology of licence-revenue allocation acceptable to it and its member and PPI's responses thereto."  (Emphasis added)

25.              It can be seen that the documentation that RAAP seeks from PPI consists of documentation which PPI sent to RAAP or which RAAP sent to PPI, i.e. emails, letters etc. Before considering these categories, reference should be made to the substantive dispute between the parties that has led to the applications for discovery. In brief, it is a dispute between RAAP, in its role representing performers, regarding the proper distribution to performers, by PPI, of licence fees it collects for public performance, broadcast etc. That is all that needs to be said about the substantive dispute, at this juncture, as there is no disagreement between the parties that the inter partes correspondence captured by Categories 2 - 4 is relevant to that dispute.

26.              Accordingly, the only question is whether it is 'necessary' for PPI to discover/disclose documents to RAAP when these documents consist of either:

(a)          copies of letters, emails etc which PPI previously sent to RAAP (and so which should be in RAAP's possession, as RAAP was the recipient of the documents); or

(b)          copies of letters, emails etc sent by RAAP to PPI (and so a copy of which should be in RAAP's possession, as RAAP was the sender of the documents).

27.              RAAP does not claim that it has lost documents (sent to it by PPI) or that it has failed to keep copies of documents (it sent to PPI). Thus, it does not claim that it does not possess these documents. However, it relies on the law, as restated in Tobin. It says that this law means that PPI is obliged to discover these documents as they are relevant and necessary, and irrespective of whether RAAP has them or not.

28.              A lay person might wonder how it could be claimed to be necessary, in the ordinary meaning of that word, for B to have to discover/disclose documents to A, that A has already sent to B or that B has sent to A. However, RAAP relies on the following paragraphs from Clarke C.J.'s judgment in Tobin to support this proposition:

'[45] Considering all of that recent case law, it seems to me that, at the level of the broadest generality, certain fundamental principles can be discerned. First, the key criteria remain those of relevance and of necessity. However, it also seems clear that there has been much greater scrutiny of the issue of "necessity" in more recent times. The traditional position, very much accepted, was that if documents were relevant, their discovery would almost inevitably be necessary. However, much of the recent case law has indicated a need to move away from that position. Where there are other equally effectual means of establishing the truth and thus providing for a fair trial then discovery may not be "necessary". This will certainly be so where it can be shown that the cost of making discovery would be significant and would greatly outweigh the costs of pursuing some alternative procedural mechanism to establish the same facts. Similar considerations apply when the likely true relevance of documentation may not become clear until the trial but where the immediate disclosure of the documentation concerned would necessarily involve disclosing highly confidential information. Furthermore, the development of a proportionality test can itself be seen as a further refinement of the concept of "necessity".

[46] It is, of course, the case that "necessity" means that the disclosure of the documents concerned may be necessary for the fair and just resolution of the proceedings and potentially for saving costs. The costly alternative to discovery might, of course, be that a large number of persons would be served with subpoenas requiring them to bring documents with them to the trial, but that would lead to greatly prolonged hearings while documents were being introduced into evidence, as it were, "on the blind". On the other hand, requiring a party to produce, at great expense, a very large number of documents, which are only likely to be of tangential relevance to the trial, is most unlikely to save costs and equally unlikely to lead to a fairer resolution of the proceedings. In that sense, the discovery of the documents in question cannot be said to be necessary.

[47] In those circumstances, it seems to me that the starting point has to remain a consideration of what is "relevant". If it cannot be demonstrated that documents are relevant, then there could be no basis for requiring that they be discovered.

[48] Having regard to the importance which discovery can play in at least some cases, it should, in my view, remain the case that the default position should be that a document whose relevance has been established should be considered to be one whose production is necessary. However, that remains only a default position and one which is capable of being displaced for a range of other reasons. If it can be demonstrated that compliance with the obligation to make the discovery sought would be particularly burdensome, then a court will have to weigh in the balance, in deciding whether discovery is truly "necessary", a range of factors, including the extent of the burden which compliance will be likely to place on the party concerned, the extent to which it might reasonably be expected that any of the contested documentation whose discovery is sought will play a reasonably important role in the proper resolution of the proceedings and, importantly, the extent to which there may be other means of achieving the same end as that which is sought to be achieved by discovery but at a much reduced cost. While not relevant to this case, it might be said that the postponement of the requirement to disclose confidential documentation may also come into play. Likewise, there may be other situations which arise in the particular circumstances of an individual case which would allow a court to consider that disclosure was not truly "necessary", in the more nuanced sense in which that term has now come to be understood.' (Emphasis added)

29.              RAAP applies these principles set down in Tobin to its case in the following manner:

·           Firstly, it says that it is clear from Tobin that a document is presumed to be necessary if it is relevant.

·           Secondly, RAAP claims that since the inter partes correspondence in this case is clearly relevant to the dispute (which is not denied by PPI), RAAP claims that it must presumed to be necessary.

·           Thirdly, once so presumed, RAAP states that the burden is on PPI to establish that the documents are confidential (this was not denied by PPI).

·           Fourthly, since the documents consist of inter partes correspondence, RAAP points out that they could not be confidential (and this is also not disputed by PPI).

·           Fifthly, RAAP also states that the burden is on PPI to establish that it would be onerous on PPI to have to discover the documentation (and PPI did not claim that it would be onerous).

30.              In light of all of this, RAAP maintains that it inexorably follows from the law of discovery as restated in Tobin that PPI must discover the documents which PPI had previously sent to RAAP or that RAAP had sent to PPI.

31.              In addition to relying on Tobin, RAAP relies on the Court of Appeal judgment of Hogan J. in IBB Internet Services Ltd v Motorola Ltd [2015] IECA 282 at paragraph 87 where he stated:

'[I]t has never been the law that the party requesting discovery could properly be disentitled to otherwise necessary and relevant documentation by reason of the fact that he or she may already have some or all of such documentation. [...] The entire purpose of discovery is to ensure that the requesting party knows what documentation the requested party has in his or her possession.'

32.              RAAP says that this means that a party cannot refuse to discover/disclose a document to the other side, by 'reason of the fact that he or she may already have some or all of such documentation'.

33.              For its part, PPI does not interpret Hogan J.'s judgment in the same manner as RAAP. Instead, PPI puts emphasis on the phrase 'otherwise necessary' which it interpreted to mean that you cannot be refused discovery, even if you have a document, if you can show some other reason why it is necessary for it to be discovered.

34.              PPI also relied on the High Court judgment of Holland J. in Chubb European Group SE (formerly Ace European) v Perrigo Company Plc [2022] IEHC 444 at paragraph 87, where after quoting the above extract of Hogan J., he states:

'However this principle does not require discovery of documents which the party requesting discovery knows the requested party has for the very reason that the party requesting discovery itself gave them to the requested party'.

35.              While Chubb involved documents given by B to A (which should be in A's possession), in this case, we are also concerned with documents sent by A to B (copies of which should be in A's possession).

36.              In this Court's view, the answer to the issue before this Court is to be found in a consideration of the Supreme Court judgment in Tobin in the round and by going back to basics in particular regarding the plain meaning of the word 'necessary'. In this Court's view, if RAAP has (or is almost certain to have) a document (for the simple reason that PPI sent it to RAAP or because RAAP sent it to PPI, and RAAP kept a copy), then in this Court's view, it cannot, on first principles, be 'necessary' for that document to be discovered by PPI.

37.              It is true that it is arguable that taking a very literal interpretation of the steps to be taken in a discovery application as set down in Tobin (and as was done by RAAP), would involve this Court concluding that, in every application for discovery, it is 'necessary' for a litigant to make discovery of every single document that he (or, on his behalf, his solicitor) sent to the other litigant relating to the dispute, i.e. because it had not been established that it was confidential or because it had not been established that its disclosure would be onerous.

38.              However, in this Court's view, this would defy logic. It would ignore the true meaning of the word 'necessary' and more importantly would extend, even further, the already considerable burden of the monster that is discovery (which this Court has noted is an important backdrop to any consideration of discovery applications).

39.              While Clarke C.J. in Tobin does indeed state that the default position should be that a document whose relevance has been established should be considered to be one whose production is necessary, in this Court's view, this does not mean that the word 'necessary' then loses all significance and one immediately (and only) considers whether discovery would be onerous or involve confidential documentation, for its disclosure not to be necessary.

40.              In this Court's view, the pre-condition that the production of documents be 'necessary' remains a stand-alone condition to be satisfied, albeit that it is presumed to be satisfied, if it is relevant. However, this is only a presumption and, while one way to rebut this presumption is by establishing that the documents are confidential or that their disclosure would be onerous, arguably the most logical way to rebut the presumption that relevant documents do not need to be discovered, is if the documents are already in the possession of the party seeking discovery. Thus, if B sends A an email, the production of that email by B, as part of her discovery, is not necessary, for the simple reason that A already has the document.

41.              To put it another way, the term 'necessary' should be interpreted using its plain meaning as needing a document. If I have a document (or if there is no obvious reason why I would not have a document, that was sent to, or by, me) then that document is not 'necessary' to be discovered. This then rebuts the presumption that the relevant document is necessary to be discovered, and one need not consider whether it is confidential, or if its discovery would be onerous.

42.              In this Court's view, this is how the rules on discovery should be interpreted. In particular, this Court does not agree with RAAP that the rules should be interpreted as meaning that a document (which is almost certainly in A's possession) is necessary to be disclosed by B if it is relevant, simply because B has not discharged the burden of establishing that it is confidential or that its discovery would be onerous.

43.              For this reason, this Court would not order the discovery of any of these three categories of discovery (which this Court has no reason to believe are not in RAAP's possession). It does so because they are not necessary to be discovered.

Category 9 sought by PPI from RAAP

44.              In this category, PPI seeks from RAAP:

"All documents relating to the alleged impediments, claimed by RAAP, to the provision to PPI of information required by it to make payments of equitable renumeration to RAAP in respect of performers it represents. This includes documents that evidence the purpose and function of any proprietary database, including its date of compilation, and also includes documents relating to any claimed commercial or personal sensitivity of any information required by PPI. It also includes any agreements or undertakings in respect of such commercial or personal sensitivity of any information required by PPI." (Emphasis added)

45.              The background to this category is that RAAP in its Statement of Claim alleges that PPI required, as a precondition of it making payments to RAAP, that RAAP provide PPI (and also Phonographic Performance Limited, a direct competitor of RAAP's) with information from RAAP's proprietary database on the performers it represents. By making the disclosure of RAAP's proprietary information a pre-condition to payment, RAAP claims that PPI is abusing its dominant position as the first collector of the revenue for performances. It claims that PPI is doing so in order to fill the gap in its own business and force RAAP to hand over its valuable business asset, i.e. information on performers nationally and internationally, that it has built up over several decades. In its Defence, PPI denies that the database and its contents are proprietary.

46.              In response to this category, RAAP offered to provide PPI with documents which demonstrate that the database is proprietary, but not any documents evidencing 'impediments' to the provision by RAAP to PPI of the information sought. This is because RAAP claims that the request, for documents evidencing alleged impediments to RAAP's provision of the information from its database, is not relevant to the dispute between the parties regarding the alleged abuse by PPI of a dominant position.

47.              This Court agrees with RAAP that Category 9 is not relevant to any issue in dispute between the parties. This is because there is no claim in the pleadings by RAAP (or indeed by PPI) that there are any impediments to RAAP providing information from its database to PPI.

48.              Based on the pleadings, RAAP is saying that PPI abused its dominant position by seeking to force RAAP to provide its business asset (i.e. the information in the database) to PPI. However, based on the pleadings the reason RAAP did not provide the information from its database was because it was proprietary information. In particular, nowhere in the pleadings does RAAP claim that there are impediments to it providing the information from the database. It is clear that the reason that it did not provide the information is simply because it claims that it is proprietary information. Indeed, in response to RAAP's allegations in the Statement of Claim that PPI was abusing its dominant position by seeking the information from the database, PPI simply denies, at paragraph 50e(iv) of its Defence, that it has demanded 'proprietary information' from RAAP. There is no suggestion by PPI there or elsewhere in the Defence that there are some impediments to RAAP giving the information.

49.              Accordingly, the discovery of documents, relating to alleged impediments to the provision of the information from the database, is not relevant to the dispute. Therefore, this category is refused on the grounds that it is not relevant.

Category 8 sought by RAAP from PPI

50.              The final category of document sought in this discovery application is sought by RAAP from PPI and it is:

"All documents reflecting any consideration being given by or on behalf of PPI to possible approaches to the calculation/allocation of licence revenues."

The background to this category is that, as already noted, RAAP claims that PPI abused its dominant position as a collector of licence fees in respect of public performances.

51.              In its defence, PPI has pleaded that it is not an undertaking for the allocation and calculation of equitable remuneration for performers and in particular that it does not determine its own conduct in performing its statutory obligation under section 208 of the Copyright and Related Rights Act, 2000 ("2000 Act").

52.              On this basis, PPI is claiming that this category is not relevant. This is because it is claiming that it has no scope for manoeuvre in its calculation/allocation of the licence fees. In particular, it claims that any internal 'consideration' given by PPI to possible approaches to the calculation/allocation of licence revenues (which is the focus of this category) is irrelevant. It claims that the key issue is what it actually did (not what its internal considerations were) and whether that was in compliance with the 2000 Act or not. It claims that this is a question of law, to which this category of discovery is irrelevant, because PPI is either in compliance with the Act or not and so what is discussed internally is irrelevant.

53.              If the only issue in dispute was whether PPI complied with the 2000 Act, this Court would agree with PPI that this category is irrelevant. However, RAAP is claiming that PPI abused its dominant position. For this reason, PPI's belief, or not, that it was complying with the 2000 Act is relevant to whether it might, or might not, have been abusing a dominant position. This is because the rules of discovery, as currently formulated, require that every document is discoverable if it may directly or indirectly advance or damage either side's case. This is clear from the 1882 case of Peruvian Guano (at page 63), which as previously noted, continues to govern discovery today:

"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 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 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."

For this reason, this Court would order this category of discovery on the grounds that applying these 19^th century rules, as this Court must, it is clearly relevant to the dispute between the parties and there is no basis for this Court to conclude that they are not necessary.

 

CONCLUSION

54.              For the reasons set out above, PPI does not have to discover documents (Categories 2 - 4) that should be in RAAP's possession. This is because, in this Court's view, it is not necessary to discover documents in that situation. However, PPI does have to discover documents in Category 8 as under the current rules of discovery, these may be relevant to the issues in dispute and there is no basis for saying that they are not necessary to be disclosed.  

55.              As regards RAAP, it does not have to discover documents in Category 9, even when one applies the 19^th century test for discovering documents, since these documents are clearly not relevant to the issues in dispute when one considers the pleadings.

56.               This case will be provisionally put in for mention at 10.45 a.m. two weeks from its delivery to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at paragraph 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly 'nit-picking'.