The discovery process can cause tensions between a legal practitioner and a client as recorded in the recent decision of Selman Turk (ref:  Isbilen v Turk & Ors [2024] EWCA Civ 568 (22 May 2024) ) when Mr Shepherd KC (then counsel for Mr Turk) advised him to instruct a different solicitor (to Bivonas solicitors) due to criticisms of Turks’ alleged discovery deficiencies but it was in fact Mr Shepherd himself who “was sacked” and Bivonas retained.

“Immediately following that hearing Mr Shepherd sent an email to Mr Turk on which Mr Counsell KC places particular reliance. In it Mr Shepherd advised Mr Turk to instruct different solicitors because the correspondence sent by Bivonas failed to comply with the disclosure requirements of the Miles order. He added:

“I had real concerns from emails exchanged that Mr Bechelet had not taken instructions from you regarding the requirements of para 16 and 18. It was also clear from our discussions over the short adjournment that you were not aware of the full extent of the disclosure requirements under these provisions.”

The upshot was that Mr Shepherd was sacked, and Mr Turk chose to continue to instruct Bivonas . “

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When receiving an affidavit of discovery from the “opponent” parties should not take for granted the wording of the agreed categories of discovery will be accurately reflected in the “schedule of agreed discovery” – which can take the form of a table and in respect of which the compliance and disclosure obligations pertain to – but should carefully read/analyse the categories on the table and cross check them against the agreed discovery categories (to ensure no category have been omitted (which imposes obligations to account for their omission in the Second Schedule of the affidavit which may not have been done) or that the wording of a category has not been unilaterally amended without any agreement to amend obtained from the other side).

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Users of the Irish Courts struggle to stay familiar with all the rules of the Courts (The current 2023 Edition of Blackhall’s Superior Court Rules Updated to 1 January 2023 runs to 634 pages).

“The Rules of the Superior Courts must in any event concern only matters of “pleading, practice and procedure”: see s. 14(2) of the Courts (Supplemental Provisions) Act 1961. Any attempt to change the substantive law by rules of court will be held to be ultra vires: see, e.g., decisions of this Court such as MOS v. Residential Institutions Redress Board[2018] IESC 61, [2019] 1 ILRM 149 and Director of Public Prosecutions v. McGrath[2021] IESC 66, [2021] 3 IR 785. ” Supreme Court of Ireland Judge Hogan in MD v The Board of Secondary School (Approved) [2024] IESC 11 (10 April 2024)

Legal Practitioners should beware of Order 31 Rule 12 / Order 31 Rule 21 RSC distinction.

So called “Voluntary Requests” for Discovery pursuance to Order 31 Rule 12 Rules of the Superior Courts 1986 as amended can contain the following paragraph:

” AND FURTHER TAKE NOTICE that this request of voluntary discovery has been made pursuant to Order 31 Rule 12 of the Rules of the Superior Courts (as amended by the Rules of the Superior Courts (Discovery), 2009 Sl 93 of 2009. Where XX is prepared to make discovery of the documents referred to , the YY requests such discovery should be made under oath and in like manner and form as if the same had been directed by Order of the High Court. Failure to make such AGREED voluntary discovery may result in an application pursuant to Order 31 RULE 21 of the Rules of the Superior Courts (as amended).”

Where a party AGREES to make such voluntary discovery and the other party is subsequently aggrieved with the documents/records discovered (eg there may in fact not be any documents/records) the aggrieved party may then apply to the Court to enforce the terms of this “agreed” voluntary discovery (which it will be submitted to the Court “is akin to a court order “) pursuant to O31 r21 RSC which where the Court is satisfied 1. there was voluntary discovery agreement (letter typically 2-5 pages) and 2. there is a breach of its terms may make a Court Order for Discovery and possibly a Costs Order also.

The risk here is that the aggrieved party may through negligence, over caution or whatever other reason bring their application to enforce the terms of this “agreed” voluntary discovery under Order 31 Rule 12 and not the correct rule being Order 31 Rule 21 RSC.

This leads to the risk that the timeframe of the “agreed voluntary discovery” (where not spotted) will be further extended to the date the Court hears the application/makes the Order and not the date of the agreement to make voluntary discovery (refer to “swamping” strategy in Litigation Tactics page where a party straddles two horses etc.).

It also leads to the risk of higher legal costs for both the client (who will be relying on their legal advisers and the existence of a fiduciary relationship of trust between a solicitor and client) and also the “paying party” where they are subjected to a Costs Order with the Bill of Costs drawn on the basis of O31r12 despite the motion being moved before the Court on the basis of O31r21.

Under Order 52 rule 17 RSC the costs for “one counsel only” shall be allowed on a party party basis unless the Court shall otherwise order for “Applications for discovery of documents under Order 31, rule 12 RSC”

Another fee generation tool in the area of “discovery” is where a party seeks discovery which is not supplied in their stipulated timeframe then proceeds to issue a motion for this discovery with the expectation of being “awarded” costs for this motion whether it proceeds or is struck out on consent (the other party being willing to make the discovery but perhaps needed more time.)

To add insult to injury (so to speak) it is then open to a party as a second fee generation tool in the area of “discovery” to seek “updated” discovery after their first discovery motion which often yields nothing (as symptoms do abate in a court system with endemic delays) then proceeds to issue a second motion for this “updated” discovery with the expectation again of being “awarded” costs for this second motion whether it proceeds or is struck out on consent (the other party swearing there is nothing further to discover).