Background

Despite unremitting calls for an overhaul of Ireland's discovery rules, and more than four years on from the Report of the Review Group of the Administration of Justice of 30 October 2020 (the "Kelly Report"), which offered the Oireachtas an "off the shelf" Draft Scheme of Rules for Production of Documents for insertion in the Rules of the Superior Courts, no legislative changes have been made to implement the Kelly Report. Accordingly the Irish courts still find themselves bound by discovery rules which are outdated and ill-suited to litigation in 2025.

Mr Justice Twomey in the recent judgment in Recorded Artists Actors Performers Ltd -v- Phonographic Performance (Ireland) Limited and others [2025] IEHC 119 did not shy from criticising the discovery obligations in Ireland:

"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, when one considers [the Kelly Report], this is, in effect, what is happening today in Irish courts."

In Recorded Artists Actors Performers Ltd -v- Phonographic Performance (Ireland) Limited and others the plaintiff ("RAAP") sought an order from the Court requiring the defendant ("PPI") to discover and disclose to RAAP letters and emails which were sent by PPI to RAAP or received by PPI from RAAP, even though RAAP has (or should have) these documents already in its own possession. The parties acknowledged such documents were relevant to the dispute, but disagreed over whether it is 'necessary' for them to be disclosed/discovered where RAAP already has those documents in its possession. RAAP also made no assertion that it had lost documents it received or that it failed to keep copies of documents it sent to PPI.

Discovery test

The law of discovery today is still governed by the 19^th century 'relevancy' test. For documents to be discoverable, they must be 'relevant and necessary for the fair disposal of the case'. The presumption - which is rebuttable - is that a document that is relevant is also necessary. Where a party resists discovery of relevant documents on the basis that such documents are not necessary, the burden falls on the resisting party to prove such documents are not necessary.

In this case, RAAP contended that a strict interpretation of 'relevant' and 'necessary' applied. It argued the starting point was a document is presumed necessary if it is relevant. PPI did not deny the relevance of the documents RAAP sought. Therefore it asserted that PPI must demonstrate such documents were confidential (which they were not as they were inter-partes correspondence), or that it would be onerous on PPI to disclose such documentation (which PPI had not asserted). RAAP therefore maintained that PPI must discover/disclose documents, even where they are already in its possession.

Judgment

Mr Justice Twomey disagreed and held that PPI did not have to discover documents that should be in RAAP's possession. The Court found that the term 'necessary' should be interpreted using its plain meaning as 'needing a document'. If RAAP has had a document - and there is no obvious reason why it would now not have a document which was sent to it – then such document is not necessary to be discovered. 

This is a very pragmatic and welcome decision, however it does not negate the necessity for a long overdue reform of the rules dealing with discovery, which remains the most costly aspect of litigating in Ireland today.

Read the full Recorded Artists Actors Performers Ltd -v- Phonographic Performance (Ireland) Limited judgment here.