High Court: Judge opines on ‘19th century’ discovery regime and on concept of ‘necessity’
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The High Court has opined on the failure to implement reforms suggested in the 2020 Kelly report as it refused to order discovery of documents which were likely already in the possession of the applicant party, finding that discovery thereof would not be “necessary”.
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About this case:
- Citation:[2025] IEHC 119
- Judgment:
- Court:High Court
- Judge:Mr Justice Michael Twomey
Delivering judgment for the High Court, Mr Justice Michael Twomey explained that “the term ‘necessary’ should be interpreted using its plain meaning as needing a document. If I have a document (or if there is no obvious reason why I would not have a document, that was sent to, or by, me) then that document is not ‘necessary’ to be discovered.”
Background
The parties’ dispute concerned the alleged abuse by the first defendant, PPI, of a dominant position as a collector of licence fees in respect of public performances.
The plaintiff, RAAP, sought inter alia three categories of discovery (Categories 2–4) against PPI pertaining to documents which RAAP should already have had in its possession, such as copies of letters and emails previously sent by PPI to RAAP and sent by RAAP to PPI.
RAAP did not suggest that it had lost the documentation sought or failed to keep copies thereof, relying on Tobin v Minister for Defence [2019] IESC 57 and IBB Internet Services Ltd v Motorola Ltd [2015] IECA 282 in support of its contention that PPI was obliged to discover the documents as they were relevant (and therefore presumed necessary), irrespective of whether RAAP already had possession of the documents sought or not.
PPI resisted discovery of the documents, relying on the judgment of Mr Justice David Holland in Chubb European Group SE (formerly Ace European) v Perrigo Company Plc [2022] IEHC 444 wherein he stated that this principle did not require the discovery of documents “which the party requesting discovery knows the requested party has for the very reason that the party requesting discovery itself gave them to the requested party”.
The High Court considered whether it was necessary for PPI to discover the documents in question.
The High Court
At the outset of his judgment, Mr Justice Twomey remarked that it “would be unheard of for medical professionals today to be using 19th century medical techniques and equipment, such as leeches, while CAT scanners and other modern equipment lay unopened on the shelves”.
However, in light of the failure of the Oireachtas to implement the reforms suggested by the Report of the Review Group of the Administration of Justice of 30 October 2020 — the Kelly report — and the continued use of discovery rules emanating from Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co. (1882) 11 QBD 55, he said “this is, in effect, what is happening today in Irish courts”.
Mr Justice Twomey expressed that while it was arguable on a literal interpretation of Tobin that it is necessary for a litigant to make discovery of every document sent to the opposing litigant relating to the dispute if not confidential or where its disclosure would not be onerous, “in this court’s view, this would defy logic. It would ignore the true meaning of the word ‘necessary’ and more importantly would extend, even further, the already considerable burden of the monster that is discovery…”
The court reasoned: “While Clarke C.J. in Tobin does indeed state that the default position should be that a document whose relevance has been established should be considered to be one whose production is necessary, in this Court’s view, this does not mean that the word ‘necessary’ then loses all significance…”
The judge continued that “the pre-condition that the production of documents be ‘necessary’ remains a stand-alone condition to be satisfied, albeit that it is presumed to be satisfied, if it is relevant”, pointing out that this is “only a presumption” which could be rebutted by showing inter alia that the documents do not need to be discovered as they are already in the possession of the party seeking discovery.
In the circumstances, Mr Justice Twomey refused to order discovery of Categories 2–4 where he did not agree with RAAP that the discovery of relevant documents which were almost certainly in its possession was warranted simply because PPI did not establish that the documents were confidential or that discovery thereof would be onerous.
As to PPI’s request for discovery, the court refused to order discovery of Category 9 seeking all documents relating to alleged impediments to RAAP providing information from its database to PPI, where there was no claim in the pleadings that there were any such impediments and as such, the category was not relevant to the dispute between the parties.
The court ordered discovery of Category 8 sought by RAAP of “all documents reflecting any consideration being given by or on behalf of PPI to possible approaches to the calculation/allocation of licence revenues” in circumstances where PPI’s belief, or otherwise, that it was complying with the Copyright and Related Rights Act 2000 was relevant to whether it might, or might not, have been abusing a dominant position notwithstanding its contention that it had no scope to determine its own conduct in performing its statutory obligations and was not an undertaking for the allocation and calculation of equitable remuneration for performers.
Conclusion
Accordingly, the High Court refused to order Categories 2–4 of RAAP’s discovery request and Category 9 of PPI’s discovery request, and agreed to order Category 8 of RAAP’s discovery request.
Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd & Ors [2025] IEHC 119