In a recent judgment delivered on 27th February 2025 in the case of Recorded Artists Actors Performers Ltd v. Phonographic Performance (Ireland) Ltd, Mr. Justice Twomey provided a compelling commentary on the inefficiencies and financial burden caused by Ireland’s outdated discovery rules. The case sheds light on a pressing issue that has been repeatedly identified in the Irish courts – the need for immediate reform in discovery practices.
Our office last month provided our analysis on the Discovery procedure in Ireland with reference to the ongoing Conor McGregor Saga. This week, Justice Twomey’s observations echo the sentiments of Judge Hogan in the Court of Appeal decision in Tobin v. Minister for Defence, where he stated:
“…this appeal serves to illustrate the crisis – and there really is no other word for it – now facing the courts regarding the extent of the burdens, costs, and delays imposed on litigants and the wider legal system by the discovery system as it presently operates.”
This stark assessment captures the essence of the crisis facing the Irish legal system, with discovery rules that are not only outdated but are increasingly proving to be an obstruction to justice, placing heavy financial and procedural burdens on all parties involved.
The 19th-Century Legacy of Discovery Rules
Justice Twomey’s commentary draws attention to the continuing use of discovery rules based on the 1882 case Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co, which are, he says, ill-equipped to deal with the modern challenges posed by the explosion of electronic data. He echoed the findings of the Kelly Report of 2020 namely that these rules are “completely unsuited” to an era of digital information. Despite this clear mismatch, the Irish courts are still applying these antiquated rules, leaving litigants to navigate a discovery process described as a “monster.”
The Kelly Report recommended a straightforward solution: the introduction of a new draft order to replace the existing discovery rules. Yet, despite the passage of four years since the report’s publication, these reforms remain unimplemented.
“All of this means that this Court, which is supposed to administer justice, has no choice but to apply 19th century discovery rules that ‘obstruct’ justice.”
Financial Burden and the “Monster” of Discovery
Twomey brought the financial impact of the discovery process into sharp focus. The defendant in this case was required to search an astonishing 1.78 million documents for the purpose of discovery, which was eventually narrowed down to 81,378 potentially relevant documents. With six reviewers working at a rate of 400 documents per day, the process would take more than seven weeks. Twomey estimates that if it were just one lawyer tasked with reviewing the documents, it would take nearly an entire year of full-time work.
“This means that a person who is unlucky enough to be involved in litigation in the High Court could end up having to pay for one lawyer to work full time doing nothing else for a year for the purposes of just one aspect of the litigation, i.e. discovery.”
Justice Twomey highlighted that the cost of having one lawyer review these documents could reach €250,000, based on an estimated hourly rate of €150. If both the plaintiff and defendant had similar discovery costs, the total could climb to €500,000 for discovery alone. These figures highlight the enormous financial burden that the discovery process places on litigants, particularly in complex cases such as commercial disputes or insurance claims, where large volumes of documents are common.
The Tobin case further quantified the financial burden, showing that discovery alone can account for up to 50% of the total costs of litigation in some cases.
The Crisis of Discovery in the Legal System
The legal profession represented on the Review Group in the Kelly report unanimously recommended ‘the abolition of discovery as it is now known.’
The costs associated with discovery often represent a substantial portion of total litigation expenses, and in complex cases, these costs can spiral out of control, deterring parties from seeking legal redress altogether.
The failure to modernise the discovery process is a missed opportunity to create a more efficient and equitable justice system. The current rules contribute to delays and cost overruns that undermine confidence in the legal system.
The Call for Discovery Reform
The Kelly Report made it clear that the Irish legal system requires an urgent overhaul of discovery rules. The proposed reforms were designed to be both practical and cost-effective, but they remain stalled, leaving the courts to continue applying a system that has been criticised for decades.
Twomey highlights that whilst the courts have no role in changing these 19th century rules (as this is the job of the Oireachtas), it is however the role of the courts to try to improve the system for litigants wherever possible.
The Supreme Court in Tobin argued that the advantages of discovery still largely outweigh its disadvantages but the Kelly Report Review Group took a radically different view. They concluded that discovery, as it currently operates, represents a real and pressing threat to the administration of justice. The Review Group argued that it is no longer just an inefficient process but one that has grown into a “monster,” necessitating far-reaching reform to prevent further obstruction of justice.
As Justice Twomey observed, the failure to act on the Kelly Report’s recommendations is frustrating, particularly given the mounting financial and procedural costs caused by the current system. The Review Group’s call for discovery reform is not merely a suggestion for incremental change but a call for a radical overhaul of how discovery is conducted in Irish courts, recognising the significant barriers it now presents to justice.
For over 20 years, Irish courts have recognised the need for change. From Sheehy v. Government of Ireland (2002) to Thema International Fund v. HSBC (2011), various judgments have highlighted how the discovery process has become more of a hindrance than a help in delivering justice.
‘Rather than assisting the administration of justice [the discovery process] had over the years become a potential source of injustice itself’
Conclusions on Irish Discovery Reform
Justice Twomey’s commentary once again highlights the urgent need for discovery reform in Irish courts. The decision draws attention to the financial burdens imposed by the outdated rules, which were designed in a different era and no longer serve the needs of modern litigation.
The current discovery system in Ireland is not only inefficient but also detrimental to the financial well-being of those involved in litigation. The failure to implement the reforms suggested in the Kelly Report represents a missed opportunity to streamline the discovery process, reduce legal costs, and improve access to justice.
It remains for the Oireachtas to act, ensuring that the discovery process evolves in line with modern legal and technological realities. Without this change, the “monster” of discovery will continue to obstruct justice and drive up costs for all parties involved.
