Supreme Court allows appeal on discovery scope, requiring State to prove alternative measures at reduced cost.

THE SUPREME COURT

Record No: 2018/150

Clarke C.J.

McKechnie J.

Dunne J.

Charleton J.

O’Malley J.

Between/

Gavin Tobin

Plaintiff/Appellant

And

The Minister for Defence, Ireland and the Attorney General

Defendants/Respondents

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 15th July, 2019

1.1 This appeal concerns the scope of the order which should be made concerning discovery on oath of documents relevant to the

issues which arise in these proceedings. It might well be thought that it would be unlikely that issues concerning discovery would

ordinarily meet the criteria set out in the Thirty-third Amendment to the Constitution for an appeal to this Court. In general terms, the

principles to be applied in deciding whether or not to order discovery are relatively well settled. It follows that most questions

concerning the scope of discovery involve the application of well established principles to the circumstances of an individual case.

1.2 However, there have been a number of judgments of the courts in recent times which have had to grapple with what, at least in

certain types of cases, can be the problems associated with potentially very onerous discovery obligations. As will become clear, part

of the reasoning of the Court of Appeal in this case derived from such considerations. There are, therefore, issues as to how the

courts should respond to the difficulties posed by what might sometimes be considered to be the disproportionate burden imposed on

the parties to litigation by discovery obligations.

1.3 Such issues potentially arise on this appeal and it was for that reason that in a determination of this Court (Tobin v. The Minister

for Defence [2018] IESCDET 202) leave to appeal was granted. In doing so, the Court noted that:-

“…it appears to this Court that there is a question of general public importance involved in the issues which potentially

arise on the application for discovery in this case. There may be a case for arguing that the full breadth of discovery

which has been traditionally ordered may be disproportionate in modern conditions. But even if limitations can and should

appropriately be applied, an issue of general public importance arises as to the precise manner in which a court can or

should seek to limit the scope of discovery, if that be permissible and appropriate in the circumstances of the case in

question.”

1.4 On that basis, the Court determined that:-

“… an issue of general public importance has been identified which concerns the proper overall approach to discovery in modern

conditions and in circumstances where the burden of complying with discovery is likely, on the facts of the case in question, to be

significant. Obviously, a consideration of that broad issue would be a necessary component part of determining whether the Court of

Appeal was correct to narrow the scope of discovery ordered by the High Court in this case. The Court will, therefore, grant leave to

appeal on the basis indicated in the application for leave. It will be for the case management judge to deal with any questions

concerning the refinement of the grounds which may be permitted to be pursued to ensure that they come within the scope of the

issue of general public importance identified.”

1.5 While those broad issues potentially inform the proper resolution of this appeal, they nonetheless arise in the context of the

particular circumstances of this case and it is necessary, therefore, to start by saying a little about both these proceedings and the

way in which the discovery application which now comes before this Court was dealt with in the High Court and the Court of Appeal. I

start by setting out a brief account of the proceedings.

2. The Proceedings

2.1 The plaintiff/appellant (“Mr. Tobin”) was employed by the first named defendant/respondent (“the Minister”) as an apprentice

aircraft mechanic in the Air Corps in 1989. He commenced service at the apprentice school at Casement Aerodrome, Baldonnel, Co.

Dublin, in January 1990 and, following his training, he remained stationed at the Aerodrome until his service ceased in September

1999. Mr. Tobin’s case is that in the course of his employment he was exposed to dangerous chemicals and solvents and that on one

occasion he was subjected to a practice known as “tubbing”, which involved being doused with chemicals by other Air Corps

personnel. As a result, he alleges that he has suffered personal injury.

2.2 In January 2014, Mr. Tobin issued personal injuries proceedings against the Minister and the other defendants/respondents (“the

State”) in which he attributed the personal injuries he has allegedly suffered to the negligence, nuisance, breach of duty, breach of

statutory duty and breach of contract of the State by reason of what is said to be its failure to provide Mr. Tobin with, amongst

other things, a safe system of work, a safe place of work, safe and proper equipment, appropriate training and safe and competent

fellow employees. From an affidavit sworn on behalf of the State by Captain Nic Caba of the Air Corps, it is apparent that a number of

other individuals formerly employed as aircraft mechanics at the Casement Aerodrome have initiated personal injuries proceedings

against the State on the same basis.

2.3 Following the commencement of these proceedings, the State requested particulars of the claim, replies to which were furnished

by Mr. Tobin in March 2014. In those replies, amongst other things, detail was provided as to Mr. Tobin’s employment at Casement

Aerodrome. Mr. Tobin specified that his first exposure to solvents and dangerous chemicals was in the Engine Repair Flight workshop

(“the ERF”) in July 1991 and stated that his last exposure to chemicals “as part of his day to day employment” was in February 1994,

when he was transferred to Air Support Company Signals to work in IT. A list of those chemicals to which he was allegedly exposed,

being those of which Mr. Tobin stated that he was aware, was also provided.

2.4 In the defence delivered by the State in June 2015, every allegation or assertion made by Mr. Tobin in his personal injury

summons was denied, save for the fact that it was accepted that he had been employed as an aircraft mechanic at Casement

Aerodrome. In effect, Mr. Tobin was put on full proof in relation to his alleged exposure to dangerous chemicals or solvents on an

ongoing basis and to the fact that he suffered the alleged or any damage as a result of same. The defence also includes a plea of

contributory negligence.

2.5 It is next necessary to turn to the discovery application made in this case.

3. The Discovery Application

3.1 In August 2015, Mr. Tobin sought voluntary discovery from the State by letter, setting out 15 categories of documents

requested, to which the State did not respond. While not directly relevant to this appeal, it would also appear that the State did not

respond to a request for particulars of a plea of contributory negligence. This was followed by a motion seeking discovery brought

under O. 31, r. 12 of the Rules of the Superior Courts which was issued in October 2015. The State consented to making discovery in

respect of certain categories of documentation. In relation to the categories of documentation which remained in dispute, the State

made some general objections to making discovery but also made specific objections in respect of certain categories.

3.2 In an affidavit sworn on behalf of the State by Captain Nic Caba, the logistical and financial burden which an order for full

discovery would impose on the State was set out. It was estimated that it would take ten members of staff and approximately two

hundred and twenty man-hours to locate, review and categorise the documents sought. This estimation was contested by Mr. Tobin

in his replying affidavit.

3.3 Further, it was deposed that discovery in respect of certain categories of documentation should be limited to the records of the

ERF, rather than those of the entirety of Casement Aerodrome. This was based on the contention that Mr. Tobin’s claim is limited to

an allegation that he was exposed to dangerous chemicals during the course of his work at the ERF. In an affidavit sworn by Mr.

Tobin in reply, it was deposed that there were 12 separate locations within the Casement Aerodrome where he and his fellow Air

Corps personnel were regularly exposed to dangerous chemicals.

3.4 In addition, in respect of Category 2, which sought discovery of all documentation, notes, records, reports, etc., listing or

identifying any chemicals utilised by Mr. Tobin in the course of his duties, their quantities and the dates of their purchase, the State

proposed that Mr. Tobin issue a set of interrogatories requesting that the State identify whether the chemicals listed in the replies to

particulars were, in fact, in use in the ERF during the specified time period. In response, Mr. Tobin deposed that the list referred to

was incomplete and that he does not and cannot be expected to know all of the chemicals which were in use within the workplace.

On that basis, it was said that the use of interrogatories would not allow for an appropriate or fair disposition of the case.

3.5 It is next necessary to consider the way in which the issues which remain alive on this appeal were dealt with both in the High

Court and the Court of Appeal.

4. The High Court

4.1 In a judgment of the High Court (McDermott J.) delivered on 7 October 2016 (Tobin v. The Minister for Defence [2016] IEHC 547),

a significant portion of the discovery sought by Mr. Tobin was granted, with amendments made to certain categories. Primarily

addressing the claim for discovery of the documentation sought in Categories 1 and 2, the trial judge held that an order for discovery

of those categories was necessary for and relevant to the fair disposal of Mr. Tobin’s claim, notwithstanding the significant degree of

work which would be required to comply with it.

4.2 McDermott J., having considered the pleadings, also rejected the State’s argument that Mr. Tobin’s claim was limited to one based

on injuries sustained when exposed to chemicals while physically in the ERF (as opposed to while being assigned to the ERF). It was

held that the claim was not so circumscribed by Mr. Tobin at any stage and that he was not asked to define a precise geographical

location within which the alleged exposure occurred.

4.3 Further, it was held that the State’s proposal that interrogatories be served in respect of Category 2 was an insufficient response

to the discovery sought. McDermott J. accepted Mr. Tobin’s contention that he requires a full list of the chemicals which were in use

during the relevant period and the full list of the safety data information concerning the same, holding that he was satisfied that Mr.

Tobin would suffer “serious disadvantage” if discovery was refused. In this regard, the trial judge described as “noteworthy” the fact

that the State makes no admission that the State exposed Mr. Tobin to dangerous chemicals or solvents.

4.4 McDermott J. further rejected the State’s contention that the breadth of the discovery sought was too wide. In considering

whether the order for discovery was proportionate and not oppressive to the State, it was held that the nature of the claim, based

on a continuum of events over a number of years, necessarily required that this burden of discovery be imposed.

5. The Court of Appeal

5.1 The decision and order of the High Court were subsequently appealed by the State to the Court of Appeal (Peart, Irvine and

Hogan JJ.), which handed down a written judgment (Hogan J.) on 9 July 2018 (Tobin v. The Minister for Defence [2018] IECA 230). It

is apparent that the decision of the Court of Appeal was made in contemplation of what Hogan J. describes as the “crisis” now facing

the courts regarding the breadth of discovery orders and the burdens which modern technological advancements have wrought on the

contemporary discovery process. At para. 15, it was held that:-

“[T]he burdens imposed by the process contribute significantly to legal costs and to delays within the legal system to

the point where a process designed to assist the fair administration of justice now at times threatens to overwhelm it

by imposing disproportionately onerous demands upon litigants.”

5.2 Against this backdrop, the Court of Appeal noted that the courts cannot treat State defendants any differently from other

defendants, regardless of the resources at their disposal, as the taxpayers’ interests in ensuring an efficient system of litigation

cannot be overlooked. Further, in light of such concerns regarding the burdensome nature of current discovery practice, Hogan J. held

that it behoves courts to seek out and to contemplate alternative solutions to discovery orders. The principle that discovery should

be refused where the information sought to be acquired was otherwise available, by means of interrogatories or of a notice to admit

facts, was said to be “fundamental”. In cases where the discovery sought is likely to be extensive, therefore, the Court of Appeal

held that no such order should be made unless all other avenues are exhausted and have been shown to be inadequate.

5.3 On this basis, Hogan J. allowed the appeal in respect of a number of categories of documentation on the grounds that the

application for discovery was premature and that Mr. Tobin should, in the first instance, seek the information sought by means of

interrogatories. In respect of Category 2, the Court of Appeal held that the High Court discovery order would be “very onerous and in

all likelihood out of all proportion to the likely benefits which might otherwise accrue to the plaintiff”. In light of the fact that Mr.

Tobin furnished a list of the chemicals to which he believes to have been exposed, it was ordered that it would be more appropriate

that he serves interrogatories on the Minister to ascertain whether these particular chemicals were, in fact, in use during the course

of his employment at the ERF and, if so, in what quantities. Should the information obtained by way of interrogatories be insufficient,

it was held that Mr. Tobin would be at liberty to renew his discovery application before the High Court. Similar orders were made in

respect of Categories 5, 6, 10, 11 and 14.

5.4 Further, Hogan J. held that it is well established that the ambit of discovery is defined by reference to the pleadings and

particulars, citing Hannon v. Commissioners of Public Works [2001] IEHC 59 in support. On the basis of the pleaded case, it was held

that Mr. Tobin’s claim was necessarily either expressly or impliedly confined to exposure at the ERF. As the Court could not have

regard to the locations set out in Mr. Tobin’s replying affidavit, it was appropriate to limit the discovery sought to documents

concerning the ERF and the High Court order for discovery in respect of Category 1 and Category 12 was varied accordingly.

5.5 That there have been judicial expressions of concern about the problems which overbroad discovery can pose for access to

justice cannot be doubted. In that context, it is appropriate next to turn to the case law in that regard.

6. The Case Law

6.1 It is clear from the terms of O. 31, r. 12 of the Rules of the Superior Courts, as amended, and the case law on discovery in this

jurisdiction, that a court hearing an application for discovery will only order a party to make discovery if it is satisfied that the

documents sought are both relevant and necessary for the fair disposal of the case or to save costs. In addition, in an effort to limit

the burdens, costs and delays incurred by orders for discovery in modern practice, two further considerations have sometimes been

proposed; one being that of proportionality and the other being the suggestion that alternative, more efficient methods of disclosure

should first be pursued.

6.2 The established definition of the test of relevance is to be found in the principles outlined in the judgment of Brett LJ in

Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano (1882) 11 Q.B.D. 55 (“Peruvian Guano”). With regard to

necessity, in Ryanair plc. v. Aer Rianta c.p.t. [2003] IESC 62, [2003] 4 I.R. 264 (“Ryanair”), Fennelly J. held that, in order to establish

that discovery of particular categories of documents is “necessary for disposing fairly of the cause or matter”, the applicant does not

have to prove that they are in any sense “absolutely necessary”. He went on, at p. 277, to hold that the court should:-

“...consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and

cost of the discovery sought. The court should be willing to confine categories of documents sought to what is genuinely

necessary for the fairness of the litigation. It may have regard, of course, to alternative means of proof which are open

to the applicant."

6.3 Arising from this analysis, the principle of proportionality has been developed in the jurisprudence of this Court as a relevant factor

in assessing whether discovery should be ordered. In Framus Ltd. v. CRH plc [2004] IESC 25, [2004] 2 I.R. 20, Murray J. stated,

considering the foregoing analysis in Ryanair, at para. 36:-

“As Fennelly J. pointed out, the crucial question is whether discovery is necessary for ‘disposing fairly of the cause or

matter’. I think it follows that there must be some proportionality between the extent or volume of the documents to be

discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case

of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a

trial.”

6.4 The principle of proportionality has subsequently become an important criterion employed by the courts in order to avoid the

imposition of excessive burdens on parties to litigation as a result of wide ranging orders for discovery. In Dome Telecom Ltd. v.

Eircom Ltd. [2007] IESC 59, [2008] 2 I.R. 726, Fennelly J. examined whether “the unusual scale and extent of the burden” arising

from an order for discovery was likely to “produce genuinely useful evidential material”, and held that the court was required to have

“a clear view of the litigious benefit to the plaintiff” in light of the heavy burden and cost of the discovery sought. In Astrazeneca AB

and Ors. v. Pinewood Laboratories Ltd. & Ors. [2011] IEHC 159, Kelly J. held that an assessment of proportionality in the context of

orders for discovery “involves a consideration of the extent or volume of the documents to be discovered and the degree to which

the documents are likely to advance the case of an applicant or damage the case of his opponent”.

6.5 Recalling Fennelly J.’s statement in Ryanair that the courts may, in their analysis of the necessity of an order for discovery, have

regard to “alternative means of proof” available to the plaintiff, the courts have also sought to curtail the breadth of discovery orders

by sometimes introducing a requirement that alternative methods of ascertaining the information required, such as by means of the

delivery of interrogatories, are pursued prior to the making of an order for discovery.

6.6 In Anglo Irish Bank Corporation Ltd. v. Browne [2011] IEHC 140, Kelly J. stated, in the context of cases on the Commercial List in

particular, that:-

“Discovery ought not to be ordered where the information sought to be gleaned by it is capable of being obtained by an

alternative less expensive and less time consuming method. In this regard, I have in mind the use of interrogatories.

...

When seeking to obtain information from their opponents, the first port of call ought not to be requests for discovery if

it is probable that the information which is being sought is capable of being elicited by an adroit use of interrogatories.”

6.7 The advantage of serving interrogatories, in obviating the need for costly and more time-consuming discovery, has been restated

by the Court of Appeal in McCabe v. Irish Life Assurance Plc [2015] IECA 239, [2015] 1 I.R. 346 and by Barniville J. in the High Court

in Dunnes Stores & Anor v. McCann [2018] IEHC 123. In the latter case, it was held at para. 36 that:-

“If it can be shown that there are alternative means of establishing the issues in respect of which the discovery is

sought other than by discovery, then the party seeking discovery may have a difficulty in discharging the onus of

showing that the discovery sought is necessary in that sense.”

6.8 Building on that case law, it is appropriate to attempt to define the broad principles which should be applied by a court which is

asked to rule on a discovery application in circumstances where the party which is being required to make discovery asserts that the

burden which discovery in the terms sought would impose would be excessive or disproportionate.

7. The General Principles

7.1 There is no doubt that discovery can pose problems in at least certain types of cases. However, the starting point has to be to

recognise the importance of discovery in our legal system.

7.2 Cases in a common law jurisdiction are decided on evidence which is presented by the parties themselves and which can be

tested for its veracity or reliability by cross examination or challenged by the presentation of competing evidence. For such a system

to work well, it is necessary that parties have a reasonable opportunity to be in a position to present to the court any evidence

which may bear on questions of fact which have the potentiality to influence the proper result of the case. Obviously, in many

circumstances, a party may have access to much of the evidence which they would wish to present from within their own knowledge

or resources. But there may be circumstances where a party does not have ready access to all material evidence without recourse to

the various procedural measures which the Rules of Court permit. Discovery is clearly one such measure.

7.3 In addition, discovery can play an important role in ensuring that the case presented by an opponent is not inconsistent with the

documentation which that opponent possesses but which is withheld from the court. Thus, from as far back as Peruvian Guano,

discovery has been seen as playing a role in either strengthening the discovery seeking party’s case or potentially damaging the

opponent’s case. I might add that, in my experience, discovery can also play a role in keeping parties honest, for it cannot be ruled

out that some parties might succumb to the temptation to present a less than full picture of events to the court, were it not for the

fact that they know that any attempt to do so may be significantly impaired if there is a documentary record which shows their

account either to be inaccurate or materially incomplete. I consider that latter point to be of particular importance, for it provides a

potential counterweight to the oft quoted argument that the vast majority of documents which are discovered do not find their way

into the evidence presented to the court.

7.4 It is undoubtedly true that much discovered documentation does not find its way into the evidence. But it would be to underplay

the potential importance of discovery to confine its contribution to ascertaining the true facts to the documents which ultimately find

their way into the evidence. Discovery can also influence the evidence presented in other ways, such as by ensuring that it may be

unnecessary to go into much documentary material, precisely because the party which has discovered the documents in question will

almost inevitably have to present a case in oral evidence which is consistent with the documentary record. It would be a significant

hostage to fortune for a party to present oral evidence which seemed inconsistent with documents which that party had itself

produced on discovery, unless some compelling reason for the divergence could be given. It might turn out to be wholly unnecessary

to refer to the documents in question in evidence but that would not mean that those documents may not have had a significant

effect on the overall run of the case.

7.5 I emphasise all of these points precisely because it is important not to lose sight of the valuable contribution which discovery can

make. It improves the chances of the court being able to get at the truth in cases where facts are contested. In that way, it makes

a significant contribution to the administration of justice.

7.6 But it is possible that discovery can also hinder access to justice if it becomes disproportionately burdensome. All are now aware

that the cost of litigation can potentially impact on access to justice. In different contexts, this Court has commented on such

matters in cases such as Persona Digital Telephony Limited & Anor v. Minister for Public Enterprise & Ors. [2017] IESC 27 and SPV

Osus Ltd v. HSBC Institutional Trust Services (Ireland) Limited & Ors. [2018] IESC 44.

7.7 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.

7.8 Indeed, it is important for courts to keep in mind that, particularly in cases where the financial resources available to the parties

may differ significantly, the existence of overbroad discovery can operate to the advantage of the well resourced and to the

inappropriate disadvantage of the small man or the small or medium sized enterprise. That analysis is, perhaps, an example of an even

broader consideration which courts need to take into account in the application of procedural rules. Almost all procedures have a

purpose, and that purpose is almost always one which is justified by the need to ensure that the ultimate trial of proceedings is

conducted in a way most conducive to the necessary facts being truthfully determined and to the parties having a fair and

reasonable opportunity to challenge or contest the factual position as put forward by their opponent. The overall purpose of all

procedures should also include the need that parties are able to access justice in a timely and cost effective way.

7.9 But, as Fennelly J. noted in Ryanair, there can be a danger in the over-pursuit of what he described as “perfect justice”. Where

the price which has to be paid in seeking “perfect justice” is that the costs of litigation generally soar to the extent that they impose

a materially increased barrier to access to justice, then the overall interests of justice are not served. Most procedures which make

sense can also be used tactically by one or other party (or, indeed, both) to gain a litigious advantage rather than to achieve the

specific end to which the procedure is properly directed. Any regime for the interpretation and application of procedural measures

needs to keep that fact in mind and needs to operate under principles which at least minimise the risk of procedures being used solely

or mainly for tactical reasons rather than for the purposes of ensuring the fairness and completeness of the ultimate trial.

7.10 While this case is concerned with problems arising from what is said to be over-burdensome discovery, similar issues can also

arise where there are other considerations, such as confidentiality, which might be said to play a role. Where an application for an

order for discovery is made in respect of confidential documentation, the court should only order discovery in circumstances where it

becomes clear that the interests of justice in bringing about a fair result of the proceedings require such an order to be made.

7.11 In Independent Newspapers (Ireland) Ltd v. Murphy [2006] IEHC 276, [2006] 3 I.R. 566, I held that it would be disproportionate

to order an immediate discovery of confidential documents in circumstances where it was unclear whether they would be relevant to

the issues which will arise at the trial. Instead, an order was made requiring that the relevant documents were recorded and

preserved in order to ensure that they would be available, if required, for production at trial, if it was established that they were

necessary to the proper resolution of the case. This practice was similarly adopted in my ex tempore judgment handed down in Yap v.

Children’s University Hospital (Unreported, High Court, Clarke J., 1st June 2006) and in Hartside Ltd v. Heineken Ireland Ltd. [2010]

IEHC 3, and the same principles were subsequently followed by McGovern J. in Flogas Ireland Ltd. v. Tru Gas Ltd. & Ors. [2012] IEHC

259.

7.12 Those measures exist, of course, against the backdrop of the fact that confidentiality (as opposed to privilege) does not provide

a legitimate basis for refusing to require disclosure of documents should they prove necessary to the proper administration of justice.

But they do provide a warrant for the Court adopting appropriate measures to respect the importance of confidentiality by ensuring

that it is only displaced when the production of confidential documentation proves truly necessary to the just resolution of

proceedings.

7.13 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 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”.

7.14 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.

7.15 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.

7.16 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.

7.17 However, for the purposes of this case, it is really the question of the proportionality of the order sought and the possibility that

the same ends could be achieved by significantly cheaper means that come into play. It will shortly be necessary to turn to those

matters in the context of the circumstances of this case.

7.18 Before so doing, I would also emphasise, in the context of necessity, that it can properly be said that access to justice has been

impaired even where it cannot be demonstrated that a relevant party could not afford the burden of making full discovery. A party

which will be required to expend a great deal of money on making full discovery may be inhibited in its ability to properly conduct

litigation even if could not be heard to say that it did not have the money to do so. Likewise, it is important to emphasise that access

to justice does not only apply to plaintiffs who might be inhibited in their ability to bring cases but applies equally to defendants who

may be inhibited in their ability to properly defend proceedings because of what might be seen to be the excessive burden of the

costs of litigation.

7.19 That being said, it seems to me that the first question that needs to be asked is as to whether a party which has been

requested to make discovery has established that there would be a real problem in being required to make discovery in what might

loosely termed “ordinary” or “full” terms, that being the disclosure of all documents which meet the test of relevance. It seems to me

to equally follow that, when requested to make voluntary discovery, it is incumbent on a party who may wish to argue that the

discovery sought is excessively burdensome, to set forward in its response, and in some reasonable detail, just why that is said to be

so.

7.20 The first step in the process should be, therefore, that a requested party should, in its response, indicate why it does not

consider that what might otherwise be regarded as “full” discovery should be ordered, set out any facts relevant to an assessment of

that question and go on, if it is thought appropriate, to suggest any alternative means by which, short of full discovery, the legitimate

requirements of the proper administration of justice, in all the circumstances of the case in question, could be met.

7.21 While the initial burden of establishing both relevance and necessity must lie on the requesting party, it can, for the reasons

which I have sought to analyse, be taken that the establishment of relevance will prima facie also establish necessity. Where it is

sought to suggest that the discovery of documents whose relevance has been established is not necessary, the burden will lie on the

requested party to put forward reasons as to why the test of necessity has not been met. Those reasons should initially be

addressed in the response of the requested party to the letter seeking discovery. In the event of a court being required to adjudicate

on such matters, then, to the extent that the reasons for suggesting that discovery of any particular category of document is not

“necessary” is dependent on facts, it is for the requested party to place evidence before the courts to establish the relevant facts.

To the extent that the opposition to discovery may be based on legal argument, then it is for the requested party to put forward its

reasons as to why production is not necessary.

7.22 Thus the overall approach, both in letters of request and responses thereto and in applications before the Court, should be that

it is for the requesting party to establish the relevance of the documents whose discovery is sought but it is for the requested party

to establish, whether by facts or argument, that discovery is not necessary even though the documents sought have been shown to

be relevant.

7.23 It is also necessary to say something about the general question of timing. It does not seem to me that it is appropriate to say

that a requesting party must establish that they have exhausted all other procedures available to establish relevant facts before

discovery can be sought. In many straightforward cases, there would be no conceivable basis for declining discovery of all relevant

documents, for the imposition of an obligation to make such discovery may not be burdensome at all and questions of proportionality

or alternative methods of obtaining relevant information and evidence may not truly arise. It is for that reason that it is for the

requested party to explain initially why it is said that the application would be particularly burdensome and to put forward evidence

and argument to support that contention. It is also for that party, at least initially, to suggest any alternative means of obtaining the

relevant information which are said to be less burdensome but potentially equally effective.

7.24 The time at which a requesting party needs to deal with those issues of necessity is after a case has been made to the effect

that it is not necessary, for any of the reasons explored in this judgment, that all potentially relevant documents be discovered.

7.25 I should also make one final point of general application. Relevance is, as has been pointed out, determined by reference to the

pleadings. Importantly, therefore, the scope of the issues which arise for the trial and which, thus, inform the extent of the

documentation which may be considered relevant, is determined by the way in which the parties choose to plead their case. A

plaintiff can hardly be heard to complain that they are required to make overbroad discovery if the reason for the scope of the

discovery sought is because of a “kitchen sink” approach to pleading the case. Likewise, defendants have to accept that, if they

deny all elements of the plaintiff’s case or place the plaintiff on proof about even relatively uncontroversial elements of the plaintiff’s

claim, then, inevitably, the scope of the issues which will arise for trial will be expanded and the potential for documents being

relevant to issues which remain alive will be greatly increased.

7.26 On that basis, it does seem to me to be appropriate for a court to take into account the manner in which the case is pleaded,

not only for the purposes of determining relevance, but also to assess the extent to which a party who objects to making discovery,

on the grounds that it is excessively burdensome, has contributed to that situation by the manner in which they have pleaded their

case.

7.27 As the application of the above principles is one for judges dealing with the preparation of cases and since issues as to

relevance, necessity and proportionality involve an adjudication based on a detailed understanding of the case, in general decisions as

to discovery should involve a significant measure of appreciation by any appellate court reviewing a decision at first instance. Where

litigation is under case management by a judge with an intimate knowledge of the issues involved, those considerations heighten. In

any event, where an order made on a consideration of affidavit evidence and pleadings is appealed, the burden of demonstrating as a

probability that the decision made is wrong rests on the appellant from the original High Court order; see Ryanair Ltd. v Biligfleuge.de

GmbH [2015] IESC 11 at paras. 5-8.

7.28 I have taken the opportunity to make these general observations because the reason that this case was considered to meet the

constitutional threshold for leave to appeal was due to the need to address the proper general approach to discovery in cases where

there may be a suggestion that the disclosure sought is excessively burdensome. However, the proper resolution of this appeal

requires the application of those broad principles (or at least those which are relevant in the circumstances of this case) to the

particular discovery issues which arise. I therefore turn to the application of those principles to the facts of this case.

8. Application to This Case

8.1 Before addressing the detailed questions which arise in the context of this case, it is appropriate to make some observations

about these proceedings. First, it should be recalled that the defence filed on behalf of the State places the onus on Mr. Tobin to

establish all matters relevant to his claim other than the bare fact that he was employed by the Minister and worked at Casement

Airdrome. No concessions of fact are made. There can be little doubt but that the potential scope of discovery which might properly

be ordered in this case could, on any view, have been reduced if a more nuanced approach had been taken by the State in filing its

defence. Any party is, of course, entitled to put its opponent on proof of their case. But relying on that entitlement may well extend

the scope of documentation which can potentially be relevant to the issues in the case. As noted earlier, the fact that the State has

not made any concessions in its pleadings and has thus potentially expanded the range of issues which may need to be explored at

the trial is a factor which can properly be taken into account in the overall assessment of necessity.

8.2 It follows that Mr. Tobin will be required, amongst other things, to establish the following matters if his case is to succeed.

Ultimately, as in all cases involving injury, three matters arise. First, was there negligence? Second, is there a causal connection

between that negligence and an injury caused? Third, what injuries can be said to have been caused by any negligence established?

In the context of this case, it follows that Mr. Tobin will have to establish that he did suffer injury because of exposure to chemicals,

that exposing him to the chemicals in question was, in all the circumstances of the case, negligent and the extent of any injuries and

other loss which can be attributed to that negligence.

8.3 Doubtless some of the evidence which would be needed if Mr. Tobin is to establish these matters will be expert evidence which,

amongst other things, may have to address the likelihood of any condition from which Mr. Tobin can be shown to be suffering being

caused by exposure to a particular chemical or chemicals, together with evidence which may support the view that exposing Mr.

Tobin to such chemicals was negligent having regard to the state of knowledge at the relevant time. However, in order for that

expert evidence to be of any probative value, it will need to be based on facts concerning the exposure of Mr. Tobin to chemicals for,

otherwise, any expert evidence will be purely hypothetical. The facts to which any expert opinion would have to relate must, of

course, be established on the balance of probabilities. It follows, in turn, that it will be necessary for Mr. Tobin to establish that, as a

matter of probability, he was exposed to chemicals in a manner which an expert is prepared to depose is likely to have caused his

condition.

8.4 It follows, in turn, that it is likely that a key question at the trial of this action will concern the chemicals to which Mr. Tobin was

exposed and, potentially, the circumstances in which that occurred, including the extent of any relevant exposure. At this stage of

the proceedings, it is impossible to identify the precise issues on which the case may turn. However, there can be little doubt but

that it is potentially the case that the range of chemicals to which Mr. Tobin was exposed will be an issue at the trial. Thus,

information concerning those chemicals has at least the potential to form an important part of this case. In those circumstances, it

does not seem to me that it has been established that evidence concerning the chemicals which may have been used, in

circumstances where that may establish on the balance of probabilities that Mr. Tobin was exposed to them, are tangential.

8.5 In those circumstances, it is appropriate to look at the precise issues of discovery which arise on this appeal against the

background of the discovery ordered by the High Court (which Mr. Tobin now seeks largely to restore) and the restrictions placed on

same by the Court of Appeal, but also having regard to the scope of the appeal identified in the determination which granted leave to

appeal. I will consider the categories of discovery which remain in dispute in turn.

8.6 Category 1 was described as “The Safety Data Register maintained by the defendants in respect of Casement Aerodrome for the

period between 1st January 1990 and 1st September 1999 to include each safety data sheet relating to each and every chemical

being utilised at the said premises during the said period.”

8.7 In the High Court, discovery of this category of documentation was ordered in full. In the Court of Appeal, Hogan J. recognised

that Captain Nic Caba averred, on behalf of the Minister, that the phrase “Safety Data Register” was not known to the State, and

accepted the State’s proposed amendment to the category to provide discovery of the “Material Safety Data Sheets regarding the

chemicals utilised...”. I did not understand that variation as being in controversy on this appeal.

8.8 Further, as recalled above, it was held in the Court of Appeal that the discovery should be properly confined to “the chemicals

utilised at the ERF...”, as Hogan J. considered that the only alleged instances of exposure to chemicals or solvents referred to in the

pleadings and particulars of Mr. Tobin were those which took place in the ERF and the ERF alone, and that the Court could not

properly have regard to and order discovery in respect of the other locations frequented by Air Corps personnel, as averred to by Mr.

Tobin in his affidavit.

8.9 It was submitted by Mr. Tobin that affidavit evidence can affect the relevance of categories of documents sought to be

discovered, provided that the affidavit evidence relates back to the pleadings, in accordance with the principles set out by

McCracken J. in Hannon v. Commissioners of Public Works [2001] IEHC 59. Counsel for the State, in response, stated that the

relevant dictum is not authority for the proposition that a litigant may, for the purposes of an application for discovery, introduce an

issue of fact which is not to be found in pleadings. In that context, it is appropriate to set out the relevant passage from the

judgment of McCracken J.:-

“Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by

reason of submissions as to alleged facts put forwards in Affidavits in relation to the application for further and better

discovery unless such submissions relate back to the pleadings or to already discovered documents.”

8.10 In my view, it is not apparent from the Indorsement of Claim, nor the replies to particulars provided by Mr. Tobin, that his claim

is necessarily geographically confined to chemical exposure which actually took place in the ERF. Mr. Tobin’s initial claim was stated to

relate to exposure “[d]uring the course of his employment as an aircraft mechanic at Casement Aerodrome”. In their notice requiring

further particulars of Mr. Tobin’s claim, the State sought to ascertain the precise dates on which he alleges he was first and last

exposed to such chemicals and solvents. Mr. Tobin, in reply, specifically referred to having been first exposed to solvents and

dangerous chemicals in the ERF in July 1991 and then stated that his last exposure to chemicals “as part of his day to day

employment” took place in February 1994, with no specific location provided as to where this took place. Further, in the replies to the

particulars sought, Mr. Tobin detailed his exposure to asbestos in “the attic of an apprentice hospital” in September 1989 and to other

specified chemicals while stationed in the Air Support Company Signals after 1994.

8.11 I am satisfied, therefore, that a proper reading of the pleadings does not confine Mr. Tobin’s claim to exposure to chemicals while

he was physically in the ERF but rather confines his claim to the period during which he was assigned to the ERF. For that reason, I

am of the view that the Court of Appeal was in error to seek to confine the discovery sought to documents relevant to the exposure

of Mr. Tobin to chemicals while physically in the ERF. However, Mr. Tobin was only assigned to the ERF between the January 1, 1990

and the end of February, 1994. The High Court order in respect of this category was made in respect of documents from the period of

the January 1, 1990 to the September 1, 1999. As my reasoning in respect of extending this category beyond the ERF itself stems

from my assessment of the pleadings as extending to the period during which Mr. Tobin was assigned to the ERF (and not confined to

incidents which occurred in the ERF), I am satisfied that it would have been appropriate for the High Court judge to limit discovery in

this category to the period between January 1, 1990 and February 28, 1994.

8.12 I should say that I fully agree with and endorse the principle identified in the judgment of McCracken J. in Hannon cited earlier.

If, on a fair reading of the pleadings, Mr. Tobin had confined his claim to exposure to chemicals while physically in the ERF, the

content of his affidavit could not have been used to expand the factual issues which form the context within which discovery is to be

ordered. However, for the reasons which I have stated, the pleadings do not confine Mr. Tobin’s claim in that way and it follows that

the affidavit evidence can be considered to identify with greater precision the parameters of the claim by reference to which

discovery should be ordered.

8.13 The next category which remains in dispute is Category 2 which reads as follows: “All documentation, notes, records, reports,

etc., listing or identifying any chemicals which were utilised by the plaintiff in the course of his duties during the said period together

with any documentation identifying the quantities and dates of purchase of such materials.”

8.14 This category of documentation sought by Mr. Tobin was stated to be relevant and necessary to allow Mr. Tobin’s experts to

consider in detail the specific chemicals and solvents involved, their individual characteristics and the manner in which they were

stored, utilised and ultimately disposed of. Captain Nic Caba, on behalf of the State, averred that while it would not be possible to

make discovery of documents which refer to chemicals actually utilised by the plaintiff in the course of his duties, records are

available which would make it possible to discover documents concerning chemicals “which were purchased” for use in the ERF

workshop at the times in question. However, full discovery in this category was estimated to impose a heavy burden on the

defendants, which was detailed by Captain Nic Caba, and it was suggested that interrogatories be served upon the State in relation

to the documentation sought, in order to obviate the same.

8.15 In the High Court, this category of documentation was ordered in full. The State’s appeal was allowed by the Court of Appeal in

respect of this category, as it was held that full discovery would be “obviously be very onerous and in all likelihood out of all

proportion to the likely benefits which might otherwise accrue to the plaintiff”. Hogan J. held that it would be more appropriate that,

where Mr. Tobin is aware of the chemicals and solvents used by him, he should be permitted to serve interrogatories on the Minister

requesting that he state whether such chemicals were in fact used during the course of the plaintiff's employment at the ERF and, if

so, to estimate the amount of the quantities that were so utilised in the ERF during the relevant period of the plaintiff's employment

there.

8.16 On appeal, counsel for Mr. Tobin submitted that, because Mr. Tobin is unaware of all the chemicals to which he was exposed, it

would be unfair to fix him with knowledge of the same and that, in such a context, interrogatories cannot be effectively raised on his

behalf. Further, concern was raised regarding the feasibility of drafting an interrogatory that seeks an estimate of a quantity of a

chemical. It is submitted by counsel on behalf of the State that it would not be required that interrogatories would be framed in the

negative or that they follow any particular form.

8.17 While not expressly made as an argument specific to this category, it is also of some relevance to note that an argument was

put forward on behalf of Mr. Tobin to the effect that the Court should take into account the fact that it is the State which is the

requested party in assessing the extent to which it may be permitted to order discovery which fell short of what might otherwise be

considered to be full discovery. The basis of this argument was that there were greater obligations on the State to act in litigation in

a fully transparent manner and also that the resources available to a requested party, such as the State or large corporation, could

and should be taken into account.

8.18 Thus, two broad and important questions arise in respect of this category, being the overall issue as to whether other procedural

measures should be adopted instead of or at least prior to discovery and the position of the State as requested party. I will return to

those questions in due course.

8.19 The next two categories in dispute are Categories 5 and 6, which I propose to take together and which read as follows:-

“Category 5: All documents, notes, reports, records, etc., pertaining to general safety training and special safety

training in chemicals which was provided to the plaintiff in the course of his employment by or on behalf of the

defendants.

Category 6: All documents, notes, records, reports, etc., pertaining to the provision of information with regard to the

dangerous properties of the chemicals utilised by the plaintiff in the course of his employment.”

8.20 McDermott J. in the High Court stated that the amalgamation of these categories of documentation was agreed between the

parties and that, by consent, discovery was ordered in respect of “all documents, notes, reports and records pertaining to special

safety training and information in chemicals (including dangerous chemicals) provided to the plaintiff in the course of his employment

by or on behalf of the defendants.”

8.21 In the Court of Appeal, it appears that the Minister contested the requirement to make discovery of the joint composite

category, as it was submitted to have “disproportionately increased the administrative burden associated with the discovery”. Hogan

J. was in agreement with the Minister on this issue but also held that, while he considered that Mr. Tobin was entitled to ascertain

the extent of the training with which he had been provided in relation to toxic chemicals, the training documents were not “intrinsic”

to this exercise. He continued, at para. 37:-

“[A]ll that the plaintiff needs to know for the purposes of the claim he is now advancing is whether he received training

and, if so, what was the nature of that training and, specifically, whether it extended to toxic chemicals of the kind

alleged.”

8.22 On this basis, discovery was not ordered in respect of this category and Mr. Tobin was in effect required to seek leave to serve

interrogatories on the State. These categories of documentation sought were stated to be relevant and necessary having regard to

the nature of Mr. Tobin’s claim and the plea of contributory negligence made by the State. On this appeal, counsel for Mr. Tobin

submitted that the decision of the Court of Appeal should be reversed as the State had partially consented to the provision of such

training documents and had not argued that there was any burden in respect of their discovery. In response, the State submitted

that, as Mr. Tobin refused the State’s offer to make discovery of all documentation specifically pertaining to the “special safety

training in chemicals” provided to Mr. Tobin, there was therefore no consent to discovery being made in that form and that the Court

of Appeal was at large to consider this category of documentation on its merits.

8.23 Leaving aside for the moment the minor issue which arises as to the extent of any consent to discovery given, it is clear that

the key issue in respect of this category also raises the broad general issue concerning whether other procedures should first be

explored before discovery is ordered. As noted earlier, I will return to that issue.

8.24 The next two categories of discovery which are disputed are Categories 10 and 11 which, again, can be taken together and are

in the following terms:-

“Category 10: Any accident, incident or injury records pertaining to chemical exposure for the relevant period to include

reports of any such accidents or injuries to the Health & Safety Authority.

Category 11: All records, reports, incident reports, etc., pertaining to spillages of chemicals to include any

documentation relating to the procedure to be adopted on spillages and the treatment thereof.”

8.25 These categories of documentation sought were stated by Mr. Tobin to be relevant and necessary having regard to the nature

of his claim and to the defence plea that at all times the Minister took reasonable care for the safety of Mr. Tobin and that he was

provided with a safe system of work, proper equipment and proper training.

8.26 In respect of these categories of discovery sought, McDermott J. stated that it emerged during the course of the High Court

hearing that this aspect of the claim was in relation to alleged incidents of “tubbing” made by Mr Tobin. Thus, the categories of

discovery sought were amended by the High Court in light of this particularisation. In Category 10, discovery was ordered in respect

of “[a]ny accident, incident or injury records pertaining to chemical exposure for the relevant period in relation to the alleged ‘tubbing’

incidents... to include reports of any such accidents or injuries to the Health & Safety Authority”. In Category 11, discovery was

ordered in respect of “[a]ll records, reports, incident reports, etc., pertaining to spillages of chemicals arising out of the alleged

‘tubbing’ incidents whereby the plaintiff was allowed to be doused with chemicals by other Air Corps personnel to include any

documentation relating to the procedure to be adopted on spillages and the treatment thereof”.

8.27 In the Court of Appeal, Hogan J. held that while Mr. Tobin is entitled in principle to details of any previous “tubbing” incidents,

the existence of which would tend to corroborate his account and undermine the State’s defence, he considered that interrogatories

were more appropriately sought in respect of this category of documents.

8.28 It follows that the issues which arise under this heading are, again, those relating to whether other procedures should be

invoked prior to discovery.

8.29 The next category for consideration is Category 12, which reads as follows:-

“Category 12: All environmental impact reports, Environmental Protection Agency Emission Licences, EPA inspection

results, reports or correspondence relating to Casement Aerodrome for the relevant period.”

8.30 This category of documentation sought was again stated by Mr. Tobin to be relevant and necessary having regard to the nature

of his claim and to the defence plea that at all times the Minister took reasonable care for the safety of Mr. Tobin.

8.31 McDermott J. ordered full discovery in respect of this category, and dismissed the State’s submission that discovery of such

documents should be limited to the ERF, as considered above. Thus, discovery was ordered for all locations within the Aerodrome

where Mr. Tobin averred that he regularly frequented, with the exception of the carpentry shop.

8.32 In light of Hogan J.’s conclusions in respect of the scope of the pleadings, as addressed above, the Court of Appeal amended the

order made by the High Court, confining discovery of the relevant documentation sought in this category to that “...relating to

chemical safety at the ERF workshop” generated in the relevant period.

8.33 I have already set out the reasons why I consider that the Court of Appeal was in error in confining discovery to materials

relevant to activity which physically took place within the ERF as opposed to discovery being confined by reference to the period

during which Mr. Tobin was assigned to the ERF. It follows that the same comment applies in respect of this category but the time

limitation point made earlier also applies

8.34 The final disputed category is Category 13, which reads as follows:-

“Category 13: All records relating to the disposal of chemicals maintained at Casement Aerodrome to include

documentation relating to disposal methods, method statements, segregation and labelling of waste chemicals and the

monitoring of personnel involved in such activities.”

8.35 In the High Court, McDermott J. held that Mr. Tobin does not claim that he was involved in waste disposal in a general way and,

considering the description of his duties provided in the particulars of the claim, held that discovery should be confined to any

documents or records relating to Mr. Tobin’s description of and engagement in the tasks outlined in the Indorsement of Claim, that is,

“[a]ll records and documents relating to the plaintiff's undertaking in tasks related to the emptying, cleaning and restocking of

chemicals, vats or baths”.

8.36 The Court of Appeal, while appearing to refer to this category of documentation as Category 14 rather than Category 13,

considered that while Mr. Tobin is entitled in principle to ascertain this information regarding the tasks which he had been assigned

during the course of his employment, an order for such “potentially wide-ranging discovery” was not necessary. Again, it was held by

Hogan J. that Mr. Tobin should seek leave to serve interrogatories for the purpose of ascertaining the information sought.

8.37 It follows that the broad issue of general importance which arises on this appeal governs this paragraph as well.

8.38 In summary, therefore, it is clear from that analysis that the disputes in relation to Categories 1 and 12 related to the question

of whether Mr. Tobin’s claim, and therefore discovery, was confined to activity which occurred physically within the ERF. I have

already indicated that I consider that the Court of Appeal was in error in its conclusions in that regard. It follows that, in respect of

those two categories, the appeal should be allowed on that basis and the order made by the High Court in respect of those two

categories should be restored.

8.39 The remaining disputed categories (being Categories 2, 5, 6, 10, 11 and 13) all really turn on the central issue on this appeal,

being as to whether the discovery of all relevant documents is not necessary by virtue of the fact that an alternative procedure (in

this case, interrogatories) would provide a more cost effective means of enabling the just resolution of these proceedings. In order to

assess that question, in the particular circumstances of this case, it seems to me to be appropriate to attempt to identify the sort of

questions which could be asked by means of interrogatories, the information which it might reasonably be expected could be obtained

by the use of that procedure and, importantly, the extent to which the use of that procedure might be expected to reduce the

burden of compliance on the State.

8.40 As noted earlier, it seems to me that the onus rests on a party who wishes to resist the discovery of relevant documents to put

forward, by evidence and argument, the basis on which it is said that the ordering of the discovery sought would be disproportionate

for reasons such as those advanced in this case being that there is a more cost effective way of allowing for this case to progress in

a fair manner. The real assessment must be, therefore, as to whether the State has discharged the burden which was on it to

establish that, in all the circumstances of this case, ordering the State to make discovery of the disputed categories with which I am

now dealing would be disproportionate having regard to the burden which that would place on the State and also having regard to the

availability of interrogatories which, it is said, would adequately meet any reasonable needs of Mr. Tobin. Into that overall assessment

must also go the question of whether there are special rules relating to the State as the requested party and also the issue noted

earlier in this judgment, being the question of the extent to which a requested party may have contributed to the breadth of

discovery required by virtue of the manner in which it has pleaded its case. In the light of that analysis, it is necessary to turn to the

proportionality argument.

9. The Proportionality Argument

9.1 It is true that a requirement to make discovery of all relevant documentation would place a burden on the State. It would be

necessary to search through a wide range of documentation to identify those documents which record both the chemicals to which

Mr. Tobin may have been exposed and the training which he may have had in respect of such chemicals. In addition, it would be

necessary to attempt to identify documents relevant both to regulatory matters of an environmental variety and incidents relating to

chemicals. It is not possible to ascertain the likely amount of work that would be required to comply with discovery on that scale with

precision, although the estimate given in evidence on behalf of the State does not seem unreasonable. However, it is worth recording

that, even on that scale, the discovery which would require to be made in this case would fall a long way short of the scale of

discovery which is often ordered in commercial litigation where large teams of young lawyers are engaged for many months on the

task.

9.2 I agree with the submission which was made by counsel for Mr. Tobin to the effect that it is necessary to assess whether the

case in question is really one of those in respect of which it can be said that ordering full discovery would present a significant

problem or burden on the requested party. In my view, it is possible to say that making full discovery in this case would place a

material burden on the State, but it should equally be emphasised that the burden in question is far from the upper end of the scale

and is well removed from the type of case which has led to many judicial pronouncements about the very real problems which

discovery can create for access to justice. It would, in my judgment, be appropriate to characterise the burden in this case as being

moderate rather than severe or extreme. That does not mean that it should be ignored but at the same time it would not be

appropriate to place the same weight on the burden which making full discovery in these proceedings would place on the State, as

might be the case where full discovery would lead to the very severe burdens which have been placed on parties in other cases.

9.3 The next question concerns the extent to which it might be possible, by other procedural means such as interrogatories, to

achieve substantially the same ends that might be achieved by discovery. Ultimately, the issues to which these disputed categories

of discovery relate will have to be resolved on evidence at trial. There will have to be some evidence as to the chemicals to which Mr.

Tobin was exposed and there will have to be some evidence as to the existence or otherwise of any incidents involving such

chemicals and the training which Mr. Tobin was likely to have received. It seems to me that if those questions were to be raised in

any meaningful way by means of interrogatories it would be necessary for the State to engage in significant research through its own

documentation so as to enable it to answer the questions raised properly.

9.4 In that context, it should be emphasised that the State has chosen to put Mr. Tobin on proof of his entire claim. But if the State

is to give meaningful information by means of interrogatories then it will have to know the answers. If it already has the information

which would allow it to give answers, then it is hard to see why appropriate admissions could not have been made already. But if the

State does not have the answers at this stage, then it seems almost inevitable that a significant amount of research will have to be

carried out to enable proper answers to be given. Against that background, I am not convinced that the State has established that

there will be a very great saving achieved in the circumstances of this case by using the procedural device of interrogatories as

opposed to discovery. That is not to say that there might not be other cases where the use of interrogatories or other procedural

measures might not be likely to achieve much the same ends at much less cost. But, as I have indicated earlier, the onus rests on the

requested party to demonstrate the saving likely to be achieved so that a proper proportionality exercise can be carried out. In

essence, that exercise requires the Court to assess what more would be likely to be gained by full discovery over that which might be

achieved by the use of other measures such as interrogatories and balance that against what might be saved in terms of resources

by adopting other means. I am not convinced that the State has demonstrated that other measures would be capable of providing

the necessary information but with much less use of resources. This is not one of those cases where someone knows all of the

answers and can readily give them on oath in response to interrogatories. In such a case, the documentary record will only go to the

credibility of the answers given and may or may not, depending on the circumstances, turn out to be particularly important in that

context.

9.5 In the circumstances of this case, Mr. Tobin is entitled to use procedural measures to ascertain the full range of chemicals to

which he may have been exposed and, insofar as it is possible, the circumstances in which that exposure took place, together with

information concerning the training which he received. It has not been demonstrated that such information could be given in an

authoritative way without carrying out at least a significant amount of the research which would be needed to make discovery.

Furthermore, these issues are central to Mr. Tobin’s case and the discovery sought relates, therefore, to questions which are far from

tangential or of only minor consequence.

9.6 In all those circumstances, I am not satisfied that the State have discharged the onus which rests on it to demonstrate that

alternative procedural measures could give all or most of the information to which Mr. Tobin is reasonably entitled but at the

deployment of greatly reduced resources. On that basis, and in the circumstances of this case, I am not satisfied that the

proportionality argument can succeed. I would, however, emphasise that the conclusion which I have reached is very much based on

the circumstances of this case and I would like to make clear that there may well be many other cases where analysis of the type

which I have just conducted might lead to a different conclusion.

9.7 On that basis, I consider that the High Court judge was correct and the Court of Appeal was in error in respect of the refusal of

discovery of the categories with which I am dealing in this part of this judgment. On that basis, I would allow the appeal and restore

the order of the High Court.

9.8 While it is not necessary, therefore, to deal with the argument which centres on the position of the State as requested party, I

should say that I do not consider that the State is, in proceedings such as this, in a different position to any other requested party.

It has sometimes been suggested that, in public law proceedings, there is an obligation on the State or its agencies to place before

the Court full information on decisions or measures which are challenged. But this is an ordinary civil action brought by an employee

against his employer where the employer just happens to be the State. The taxpayer, who must fund any discovery obligations placed

upon the State, is just as entitled to be protected against a disproportionate burden as any other party. Had I concluded that the

proportionality argument should have succeeded, I would not have altered that position simply because the requested party was the

State.

10. Conclusions

10.1 For the reasons analysed in this judgment I am satisfied that, while the initial onus of establishing that the disclosure of any

particular category of documents is “necessary” for the fair and just resolution of the proceedings at a proportionate cost lies with

the requesting party, where that onus is prima facie discharged it is for the requested party to establish that there are other means

of achieving the same ends, being a fair and just resolution of the proceedings, which are likely to be capable of being delivered at a

significantly reduced deployment of resources.

10.2 Applying that principle to the circumstances of this case, I have concluded that, save in one respect, the Court of Appeal was in

error and the High Court correct in relation to the issues which were the subject of this appeal. For the reasons set out in some detail

earlier in this judgment, I am satisfied that it would have been correct for the High Court to have confined the discovery obligation of

the State in respect of certain categories to being the period of time during which Mr. Tobin was employed in the ERF.

10.3 Subject to that minor amendment to the order of the High Court, I would allow the appeal and restore the order of that Court in

respect of those categories of discovery which were the subject of the appeal to this Court.