"The Discovery process compels pre-trial disclosure in civil proceedings of relevant documents in the possession or control of another party, or occasionally a non-party". [Civil Procedure in the Superior Courts, Delaney and McGrath, Roundhall Sweet and Maxwell, 2001].
The most significant purpose of discovery was set out recently by Justice Geoghegan in the Supreme Court where he indicated that the discovery process was not to enable the settlement of a case but to provide a party with the necessary ammunition to fight a case. Marie Taylor .v. Clonmel Healthcare Limited [2004 1 IR 169].
When can an Application for Discovery be made?
An application for discovery can be made when the pleadings have been exchanged in a case. i.e. after the Statement of Claim and Defence have been served. Order 31, rule 12(4)(4) provides that an application for discovery to the courts shall not be made later than 28 days after the case has been listed for trial.
If discovery cannot be made voluntarily, an application for discovery can be made to the Master of the High Court, which is the court of first instance in all applications in the High Court. Decisions of the Master can be appealed to the High Court and then to the Supreme Court.
The Rules of Discovery
The rules of discovery are set out in Order 31, Rule 12 of the Rules of the Superior Courts. Amendments have been made to Order 31, Rule 12 which were implemented by Statutory Instrument 233 of 1999: Rules of the Superior Courts ( No. 2 ) ( Discovery ), 1999, which came into effect on the 3rd August 1999 ("the New Rules"). The amendments to the rules were motivated by the desire to discourage very general requests for discovery or ' fishing expeditions', which had resulted in time wastage and unnecessary costs for parties engaged in litigation.
Under the New Rules, an application for discovery must comply with the following requirements:-
A written application seeking voluntary discovery is required which must specify the precise category of documents sought and which must furnish the reasons why each category of documents is required to be discovered. Ref: 4, Order 31, Rule 12 (4) (1) (a).
The Notice of Motion must specify the precise categories of documents in respect of which discovery is sought. Ref: 5, Order 31, Rule 12 Section 1 (1)
The Grounding Affidavit must verify that the documents sought are necessary for disposing fairly of the cause or matter or for saving costs and must furnish reasons why...