The Supreme Court holds that regard may be had to behaviour of parties in voluntary discovery process when determining discovery application.
In Tweedswood Ltd (in receivership) v Power & Ulster Bank [2019] IESC 93, the Supreme Court held that (i) it is open to a trial judge to have regard to the manner in which parties engaged with one another in the course of the voluntary discovery process when determining what course of action to adopt on a contested discovery application, and (ii) a trial judge may consider ordering a portion of discovery sought, and leaving over the possibility of subsequent additional discovery orders if that course of action increases the chance of the process being more cost effective.
Background
A dispute arose between the parties as to whether a sum claimed by Ulster Bank was legitimately due and owing. In the course of the proceedings, Mr Power, a lay litigant, sought voluntary discovery of 50 categories of documentation in two letters to the Bank.
Ulster Bank issued a detailed response to the requests, consenting to a number of categories, suggesting amendments to others, and questioning the relevance of the remainder.
Mr Power's motion for discovery came before the High Court, which adjourned it for two weeks to allow the parties to come to an agreement. He subsequently, having indicated an intention to simplify his request, submitted a new letter seeking voluntary discovery of 69 categories of documents.
Judgment
In the High Court, Charleton J had agreed with counsel for Ulster Bank that the appropriate course of action would be for Mr Power to review the discovery offered, and seek to bring a motion at a later date if the need arose following said review.
Mr Power appealed on the basis that he had not been afforded fair procedures, as, in adopting the aforementioned approach, as suggested by Ulster Bank, Charleton J had not considered and issued a determination in respect of each individual category.
Clarke CJ, giving judgment for the court, held that in light of his previous decision in Tobin v Minister for Defence [2019] IESC 57, there is an obligation on parties at the voluntary discovery stage to engage appropriately and constructively in an attempt to agree reasonable discovery. Thus, if there had been a particularly egregious failure on the part of one side or the other to do so, the court could rely on that finding to order or deny the order sought entirely.
The Supreme Court held that, given that Ulster Bank had engaged in the voluntary discovery process in a fulsome and detailed way, the trial judge was entitled to take the approach suggested, and rule on the motion in the context of the original request and response rather than the subsequent, expanded request.
Clarke CJ noted that in some circumstances an initial order with the possibility of further applications might increase overall costs, and in others such an arrangement might reduce costs. In determining whether a two-part approach is appropriate, a trial judge should be afforded a significant margin of appreciation by appellate courts.
