A fresh look at dealing with discovery

August 8, 2018

The case of Flynn v Chief Constable [2018] NICA 3 is a decision taken by the Northern Ireland Court of Appeal regarding the discovery of documents in relation to the Ballast Report. This is a report which was published by the Police Ombudsman of Northern Ireland in relation to an investigation into the police handling and management of identified informants from the early 1990s. The Court of Appeal proposed a new approach to ensure that disclosure of documents is dealt with expeditiously and fairly. Although this is a legacy case, there is an indication that this approach will be used within commercial actions as the Lord Chief Justice indicated the concern regarding the volume of materials generated in commercial actions and made reference to commercial litigation throughout.

Background

In Northern Ireland, the rules governing discovery are set out in Order 24 of the Rules of the Court of Judicature (Northern Ireland) 1980. The parties to an action must make discovery by exchanging lists of documents within 14 days after the pleadings in the action are deemed to be closed. A party must disclose to the other party those documents that are, or have been, in his or her possession, custody or power relating to any matters in question.

The test for the relevance of disclosing documents in Northern Ireland is stated in the Peruvian Guano case. A document which falls under the definition of relevancy in this case is one which enables a party to advance his own case or damage the case of his adversary, or, a document which may lead to a train of enquiry with either of those two consequences. If the document is relevant for the purposes of this test then it must be disclosed. However, the Lord Chief Justice in this case highlighted that disclosing every single document was a wasteful and expensive task.

Judgment

In this judgment, the Court of Appeal refer to the Gillen Report issued by Sir John Gillen in 2017 which was established to undertake a fundamental review of the civil and family justice systems in this jurisdiction. It describes how parties ought to disclose to each other by list the relevant documents, but also how the documents should be produced and inspected. The Court of Appeal raise the following points from the report:

  • that greater regard be given to proportionality on individual cases rather than a same-size-fits all approach;
  • to follow the principles of standard disclosure and reasonable search that apply in England and Wales with the safeguard of an application for specific discovery on Peruvian Guano lines, if appropriate. Standard disclosure being a party to disclose only the documents on which he relies and those which adversely affect his own case, adversely affect another party’s case or supports another party’s case;
  • as the court must give effect to the overriding objective, in some cases ever increasing searches for any document that might be relevant to the issues can place a disproportionate burden in terms of time and cost.

The Lord Chief Justice then made the following points in his judgment of the case:

  • that in any case where the existing approach to discovery or disclosure could lead to burdensome obligations or would prevent a case being dealt with effectively, the court should intervene with a view to finding a proportionate response, saving expenditure and ensuring that the parties are on an equal standing;
  • how the court intervenes should be in line with the particular circumstances of the case and some intervention may require more case management. However, the court should be cautious that any increase of case management is suitable;
  • although these principles have been developed in the context of commercial cases their application is pertinent in a case in which the application of Peruvian Guano and of Order 24 is likely to prevent the case being dealt with effectively. He states that cases which “involve applications for disclosure of material quantities of sensitive information are likely to require a tailored approach”;
  • proportionality will affect the degree of the search for documents;
  • there should be an examination of the un-redacted documents before the process of redaction commences to establish what documents need to be disclosed;
  • disclosure should initially be carried out on the basis of standard disclosure;
  • providing a gist of the relevant information or making formal admissions in relation to the effective content of the documents can be used to avoid time consuming redaction. Gisting can be applied to give a sense of the information that has been redacted from documents or to summarise material that is not significant to the case or which is duplicated. Where gisting is used to summarise information, the gist would be considered for redaction instead of the individual documents;
  • all judges will have to use their own discretion as to the extent of the search and redaction and the opportunity to deal with issues through gisting or formal admissions;
  • there is a requirement for parties to accommodate each other to progress the litigation in a time-effective manner and parties should be open to the idea of mediation as a means of resolution.

This judgment and the references that the Lord Chief Justice has made to commercial actions highlights that this approach likely sets a precedent as to how discovery in commercial proceedings with large amounts of documentation will be handled moving forward.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Dispute Resolution Team at Cleaver Fulton Rankin for further advice or information.

Lydia Heffron, Trainee Solicitor, Fergal Maguire, Director, Dispute Resolution Team, Cleaver Fulton Rankin, Solicitors.