Discovery and Privilege

Question 1

1. The foundation dictum in relation to Privilege in this jurisdiction can be founded in the case of Smurfit Paribas bank –v- AAB Expert Finance Ltd. [1990] 1 IR 469. This case stated that privilege would attach to documents:

(i) where the public interest lies in favour of revealing the contents of the document;
(ii) where the advantage which results from revealing facts outweighs the disadvantage which would result in not revealing the facts;
(iii) in the interests of the administration of justice; or
(iv) all of the above.

Answer 1

(iv) all of the above.

Question 2

2. Legal Advice Privilege entitles a client to:

(i) refuse to disclose any communications between himself/herself and a lawyer that were made for the purpose of giving legal advice;
(ii) refuse to disclose any communications between himself/herself and his/her lawyer, in the course of their professional relationship, that were made for the purpose of giving legal advice;
(iii) refuse to disclose any communications in relation to legal advice that his/her lawyer has given him/her in the context of litigation; or
(iv) refuse to disclose communications between himself/herself and his/her lawyer;

Answer 2

(ii) refuse to disclose any communications between himself/herself and his/her lawyer, in the course of their professional relationship, that were made for the purpose of giving legal advice

Question 3

3. Which one of the following does the Litigation Privilege not cover:
   (i) communications between a lawyer and a client where the client gives instructions to the lawyer as to how he wants his case to be handled;
   (ii) communications between a client and a third party (eg.) an expert witness as to how a particular problem, which is the subject matter of the dispute, occurred;
   (iii) communications between a lawyer and a third party in relation to a case that the expert witness has been hired for; or
   (iv) communications between a lawyer and a third party relating to a dispute that the third party is having with his neighbours.

Answer 3

(iv) communications between a lawyer and a third party relating to a dispute that the third party is having with his neighbours.

Question 4

4. A & B are in a dispute. C is hired as A’s lawyer. B’s legal team seek discovery of a number of documents, some of which you (as C’s trainee) feel are covered under the Legal Advice privilege. What are your reasons for finding so?

(i) the document sought to be disclosed contains confidential legal advice, which was made in the course of A’s relationship with C;
(ii) the document sought to be disclosed contains confidential legal advice;
(iii) the document sought to be disclosed contains legal advice from C to A in relation to contemplated litigation; or
(iv) the document sought to be disclosed contains advice from C to A that was made in the course of A’s relationship with C and which relates to contemplated litigation.

Answer 4

(i) the document sought to be disclosed contains confidential legal advice, which was made in the course of A’s relationship with C

Question 5

5. In order to sustain Legal Advice Privilege there has to be a communication (i.e.) information passing between a lawyer and a client either giving, receiving or formulating legal advice. Which of the following would not amount to communication?:
   (i) notes and memos of conversations with the client;
   (ii) the lawyer’s bill of costs;
   (iii) blood samples; or
   (iv) none of the above.

Answer 5

(iv) none of the above.

Question 6

6. As with question 5 above, but which of the following would amount to communication?
   (i) communications between a client and someone else which the lawyer has seen or has heard;
   (ii) communications between a lawyer and a third party in relation to a matter upon which the legal advice was sought;
   (iii) communications between a lawyer and a client’s agent (who is authorised by the client to accept legal advice on their behalf); or
   (iv) communications between a lawyer and a client regarding the client’s identity or address.

Answer 6

(iii) communications between a lawyer and a client’s agent (who is authorised by the client to accept legal advice on their behalf)

Question 7

7. One of the following statements is not true, which one is it?:
   (i) communications between A and the Attorney General is covered under the Legal Advice Privilege;
   (ii) communications between A and a foreign lawyer is covered under the Legal Advice Privilege;
   (iii) communications between A and a retired barrister is covered under the Legal Advice Privilege; or
   (iv) communications between A and a person who the client reasonably believes is a lawyers covered under the Legal Advice Privilege.

Answer 7

(iii) communications between A and a retired barrister is covered under the Legal Advice Privilege

Question 8

8. Which of the following cases distinguished between legal advice and legal assistance in deciding that only the former would attract privilege?
   (i) Miley –v- Flood [2001] ILRM 489;
   (ii) Smurfit Paribas Bank Ltd. –v- AAB Export Finance Ltd. [1990] ILRM 469;
   (iii) Bord na gCon –v- Murphy [1970] IR 301; or
   (iv) Gallagher –v- Stanley & National Maternity Hospital [1998] 2 IR 267.

Answer 8

(ii) Smurfit Paribas Bank Ltd. –v- AAB Export Finance Ltd. [1990] ILRM 469

Question 9

9. Which of the following cases throws confusion over the law by indicating that legal professional privilege would attach to “confidential communications passing between lawyer and client for the purpose of obtaining legal advice or assistance …” (emphasis added)
   (i) Miley –v- Flood [2001] ILRM 489;
   (ii) Smurfit Paribas Bank Ltd. –v- AAB Export Finance Ltd. [1990] ILRM 469;
   (iii) Bord na gCon –v- Murphy [1970] IR 301; or
   (iv) Gallagher –v- Stanley & National Maternity Hospital [1998] 2 IR 267.

Answer 9

(iv) Gallagher –v- Stanley & National Maternity Hospital [1998] 2 IR 267.

Question 10

10. What are the reasons behind Litigation Privilege?
    (i) protection of the privacy of counsel;
    (ii) protection of the administration of justice;
    (iii) protect the work product of a lawyer and the adversarial system;
    (iv) all of the above.

Answer 10

(iv) all of the above.

Question 11

11. What must be present in order for a document/communication to be protected by Litigation Privilege?
    (i) it was made between the client and the lawyer;
    (ii) it was made between the client and a third party (eg.) expert witness;
    (iii) it was made in preparation of litigation; or
    (iv) it contained legal advice.

Answer 11

(iii) it was made in preparation of litigation

Question 12

12. Where a document is formulated with mixed motives what is the locus classicus that was established in the case of Waugh –v- British Railways Board [1980] AC 521:
    (i) it will be protected by privilege where the dominant purpose is in contemplation of litigation;
    (ii) it will be protected by privilege as long as there is some indication that it was prepared in contemplation of litigation;
    (iii) it is only protected by privilege where the only purpose for the document is in contemplation of litigation;
    (iv) it will be protected by privilege in any case.

Answer 12

(i) it will be protected by privilege where the dominant purpose is in contemplation of litigation

Question 13

13. How are the motives for making such a document determined by the Court?
    (i) It is the motive of the person who made the document which is determinative;
    (ii) It is the motive of the person who instigated the making of the document which is determinative;
    (iii) It is not necessary for the motives behind the making of such documents to be looked at by the Court;
    (iv) The courts determine the motives on a subjective basis in that it is up to the courts to decide on the matter based on the facts of the case before them.

Answer 13

(ii) It is the motive of the person who instigated the making of the document which is determinative

Question 14

14. Where will Litigation Privilege apply?
    (i) documents that were in existence before the litigation commenced;
    (ii) documents that are communications with the other side;
    (iii) documents that were intended by A to be given to the other side (B) but then A changed his mind;
    (iv) documents that have been assembled by the Gardaí in relation to the commission of a crime.

Answer 14

(iii) documents that were intended by A to be given to the other side (B) but then A changed his mind

Question 15

15. There are five exceptions to Legal Professional Privilege. Which of the following is not one of the five exceptions:
    (i) testamentary disposition;
    (ii) disclosure of expert witness reports;
    (iii) cases involving the welfare of children;
    (iv) where the innocence of an accused is at stake.

Answer 15

(ii) disclosure of expert witness reports -

Exception only in PI cases.

Question 16

16. What is the procedure when one party alleges that a document or communication should be disclosed on the basis that it was made in furtherance of conduct which is criminal fraudulent or injurious to the interests of justice?
    (i) Party seeking disclosure should establish that the allegation is plausible or viable;
    (ii) Party seeking disclosure should present some prima facie evidence that the allegation has a foundation in fact;
    (iii) Party wanting the document to remain privileged should do both (i) and (ii) above; or
    (iv) (i) above but it is arguable that (ii) above is the correct test to apply.

Answer 16

(iv) (i) above but it is arguable that (ii) above is the correct test to apply.

Question 17

17. Will Legal Professional Privilege be lost in any of the following circumstances:
    (i) Where the solicitor gives legal advice to the client that unless he acts in a certain way he may be open to prosecution;
    (ii) Where the solicitor gives legal advice to the client that if he acts in a particular way, he may be open to a particular penalty;
    (iii) Where the solicitor gives legal advice to the client which is relevant to a commission of a crime or a fraud; or
    (iv) Where the solicitor gives legal advice to the client which is in furtherance of a crime or a fraud.

Answer 17

(iv) Where the solicitor gives legal advice to the client which is in furtherance of a crime or a fraud.

Question 18

18. In the case of testamentary dispositions, where the Court, in deciding whether or not certain communications are privileged, needs to balance competing interests, which interests will prevail:
    (i) Right of the court in a probate case to know all that the witness knows about a contested will;
    (ii) Right of a party to privilege over communications which passes between a solicitor and a witness in advance of contemplated litigation;
    (iii) Right of the deceased to have his last wishes carried out without question;
    (iv) None of the above.

Answer 18

(i) Right of the court in a probate case to know all that the witness knows about a contested will

Question 19

19. What is the position in relation to the piercing of Legal Professional Privilege where the innocence of an accused is at stake?:
    (i) The court will balance the competing interests of the public in the due and orderly administration of justice against those of the accused in ensuring all the evidence is before the Court;
    (ii) The doctrine of “once privileged always privileged” should prevail and therefore no balancing exercise should be carried out;
    (iii) There should be no screen keeping relevant information for the jury which might assist the accused; or
    (iv) None of the above since the matter is unclear in Ireland.

Answer 19

(iv) None of the above since the matter is unclear in Ireland.

Question 20

20. A & B are in dispute. A listed the expert report of X, Y & Z on the Schedule of Reports which was served on B. Subsequently A wishes to withdraw expert Y from the Schedule on the basis that he no longer intends to call Y at the hearing. What does this mean:
    (i) B should withdraw Y from the Schedule, and A is not permitted to rely on Y’s evidence in Court;
    (ii) B should withdraw Y from the Schedule but A may still rely on Y’s evidence in Court;
    (iii) B should withdraw Y from the Schedule. Neither A nor B are permitted to rely on Y’s evidence in Court; or
    (iv) B should withdraw Y from the Schedule. A is not permitted to rely on Y’s evidence in Court B may still rely on Y’s report in support of his case.

Answer 20

(iii) B should withdraw Y from the Schedule. Neither A nor B are permitted to rely on Y’s evidence in Court

Question 21

21. What is the duration of Legal Professional Privilege:
    (i) The maxim “once privileged always privileged” applies to all documents;
    (ii) The maxim at (i) above only applies to legal advice privilege. In relation to litigation privilege, the privilege applies only for as long as the proceedings remain in being;
    (iii) There should be a discretionary balance of the relevant interests involved (i.e.) between fairness and accuracy on the one hand and the interest served by the privilege on the other; or
    (iv) The majority are in favour of (i) above, however, all of the above are relevant since there has been no definitive decision on the matter.

Answer 21

(iv) The majority are in favour of (i) above, however, all of the above are relevant since there has been no definitive decision on the matter.

Question 22

22. Who holds the Legal Professional Privilege?
    (i) The client;
    (ii) The lawyer;
    (iii) A client and a third party who has a common interest with the client as regards the subject matter of the privileged document; or
    (iv) Both (i) and (iii) above.

Answer 22

(iii) A client and a third party who has a common interest with the client as regards the subject matter of the privileged document

Question 23

23. When will a client be deemed NOT to have waived the Privilege?
    (i) Revelation by the lawyer (not acting outside of his instructions) of the information contained in a document;
    (ii) Disclosure/part disclosure of the document to the public;
    (iii) Where the document is disclosed to a third party with a common interest;
    (iv) Where the contents of legal communications has been put in issue.

Answer 23

(iii) Where the document is disclosed to a third party with a common interest

Question 24

24. What is the status of legal professional privilege?
    (i) It is a discretionary remedy only awarded by the Courts in limited circumstances;
    (ii) It is merely a rule of evidence and does not necessarily have to be followed;
    (iii) It is a substantive right which has been characterised as fundamental to a fair trail under Article 6 & 8 of the ECHR; or
    (iv) None of the above

Answer 24

(iii) It is a substantive right which has been characterised as fundamental to a fair trail under Article 6 & 8 of the ECHR

Question 25

25. What is the meaning of the ‘Without Prejudice’ Privilege?
    (i) Communication in furtherance of a bona fide attempt to settle a dispute;
    (ii) Communication that is not meant to damage or further either Parties’ case;
    (iii) Communication made by one party in a genuine attempt to settle. If the negotiations were to fail, this communication would not be disclosed without the consent of both parties.
    (iv) (ii) and (iii) above.

Answer 25

(iii) Communication made by one party in a genuine attempt to settle. If the negotiations were to fail, this communication would not be disclosed without the consent of both parties.

Question 26

26. What is necessary for a Party who is trying to assert the “Without Prejudice” Privilege to show to the Court:
    (i) That a dispute existed between the Parties in which legal proceedings had commenced or were contemplated;
    (ii) The communication was made in a genuine attempt to further the settlement negotiations of the dispute;
    (iii) That the words “Without Prejudice” were included on the communication; or
    (iv) All of the above, although (iii) is not definitive.

Answer 26

(iv) All of the above, although (iii) is not definitive.

Question 27

27. What was the view taken by the Courts in the seminal case of Ryan –v- Connolly [2001] 2 ILRM 174 in relation to “Without Prejudice” privilege?
    (i) That it is confined in its ambit to admissions made in the context of settlement negotiations;
    (ii) That it extends to protect a party from being prejudiced in any way by anything that is said in the course of settlement negotiations;
    (iii) That the court should balance the interest in disclosure against the public interest in encouraging settlements in cases where disclosure is sought not for the purpose of holding an opponent to admissions made in the offer but to demonstrate why a particular course was taken.
    (iv) That it was a vital element to the negotiation process and therefore, the courts should be reluctant to pierce it except in the most exceptional of circumstances.

Answer 27

(iii) That the court should balance the interest in disclosure against the public interest in encouraging settlements in cases where disclosure is sought not for the purpose of holding an opponent to admissions made in the offer but to demonstrate why a particular course was taken.

Question 28

28. In what situations will “Without Prejudice” communications not be allowed into evidence?
    (i) Where they relate to some illegality, impropriety, threats or blackmail;
    (ii) Where they relate to previous litigation with the same subject matter as between the same or between different parties;
    (iii) Where they are needed to establish that negotiations led to an agreement and as to what was actually agreed between the parties as a result and whether that gives rise to an estopple;
    (iv) Where they are there to prove the fact of compromise.

Answer 28

(ii) Where they relate to previous litigation with the same subject matter as between the same or between different parties

Question 29

29. In the case of Murphy –v –Dublin Corporation [1972] IR 215, which was approved in the case of Ambiorix Ltd. –v- Minster for the Environment, the issue of Public Interest Privilege was thoroughly discussed. What was the decision in this case:
    (i) It was for the Minister to decide whether certain documents should be disclosed;
    (ii) The Court had to accept the decision of the Minister as to whether or not certain documents were privileged;
    (iii) It was for the Court to decide whether privilege existed or not and in reaching such a decision the Court should take into consideration where the public interest lay, and that the view of the Minister should not automatically be accepted in this regard;
    (iv) Documents may be withheld on the basis that they belong to a certain class of documents.

Answer 29

(iii) It was for the Court to decide whether privilege existed or not and in reaching such a decision the Court should take into consideration where the public interest lay, and that the view of the Minister should not automatically be accepted in this regard

Question 30

30. There are four main exceptions to non-disclosure. Which of the following is not one of the exceptions:
    (i) Government confidentiality;
    (ii) International relations;
    (iii) Proper functioning of the Public Service; or
    (iv) The prevention and detection of crime.

Answer 30

(i) Government confidentiality

Question 31

31. The idea behind the exception of proper functioning of the public service, is to foster candour in the public service. Which of the following are not included in the public service:
    (i) Garda Siochana Complaints Board;
    (ii) A tribunal of enquiry/Employment Appeals Tribunal;
    (iii) Local Authorities; or
    (iv) The Law Society.

Answer 31

(iv) The Law Society.

Question 32

33. The Constitution confers absolute privilege upon executive and parliamentary communications. Which Article of the Constitution created this privilege:
    (i) Article 15.1
    (ii) Article 15.7
    (iii) Article 15.12; or
    (iv) Article 15.13.

Answer 32

(iii) Article 15.12

Question 33

32. Which of the following is true in relation to the Court’s role in inspecting documents which are claimed to be covered by executive privilege:
    (i) The Court may inspect a document ascertain if the claim of privilege is well founded;
    (ii) The Court may inspect a document to ascertain if the claim of privilege is well founded and may further be disposed to editing that document;
    (iii) The Court is obligated to examine the documents; or
    (iv) The Court should never examine the documents.

Answer 33

(ii) The Court may inspect a document to ascertain if the claim of privilege is well founded and may further be disposed to editing that document

Question 34

34. What is the extent of the parliamentary privilege and residual executive privilege?
    (i) It applies to all publications and/or utterances made by TD’s or Senators;
    (ii) It applies to all publications and/or utterances made within the Dail, the Seanad, tribunals of enquiry or committees established by the Oireachtas;
    (iii) It applies to all publications and/or utterances first made within the Dail or the Seanad; or
    (iv) It applies to all publications and/or utterances made within the Dail or the Seanad but it won’t apply where the utterance is repeated outside of the Dail or the Seanad.

Answer 34

(iii) It applies to all publications and/or utterances first made within the Dail or the Seanad

Question 35

35. In the case of Attorney General –v- Hamilton (No. 2) the Supreme Court considered the issue of parliamentary privilege. What was the decision in this case?
    (i) A member of the Dail or the Seanad who repeats the allegation or information outside of the Dail, is no longer covered by the privilege;
    (ii) Any utterance first made in the Dail or the Seanad, no matter where it is published, remains privileged in the context of any legal proceedings. The source of the information will also remain confidential;
    (iii) A member of the Dail or the Seanad is covered by the privilege even where the repetition was not factually similar to the information first stated in either House of the Oireachtas; or
    (iv) A member of the Dail or the Seanad who repeats the allegation or information outside of the Dail, is no longer covered by the privilege. Furthermore, the source of the information will not remain confidential.

Answer 35

(ii) Any utterance first made in the Dail or the Seanad, no matter where it is published, remains privileged in the context of any legal proceedings. The source of the information will also remain confidential

Question 36

36. Is it possible for a Tribunal of Inquiry to investigate the content and details of Government discussions?
    (i) Since the Government is responsible to the Dail, it is possible for a Tribunal to investigation the details of Government discussions;
    (ii) As it is a necessary corollary of the principle of collective responsibility, there can be no investigation into details of Government discussions;
    (iii) The Government is responsible to the Dail in respect of both decisions taken and the process leading up to these decisions and therefore, a Tribunal may investigate such matters; or
    (iv) The confidentiality of discussions between the Government will be respected except where the High Court determines disclosure has to be made in relation to a particular matter.

Answer 36

(iv) The confidentiality of discussions between the Government will be respected except where the High Court determines disclosure has to be made in relation to a particular matter.

Question 37

37. What is taken into account by a Court when asked to disclose the identity of a source of information in the context of the Informer Privilege:
    (i) Consider whether justice would be best served by disclosure;
    (ii) Consider whether disclosure would benefit the job of the police to prevent and detect crime;
    (iii) Weigh up whether there is a public interest in disclosing the identity as against a public interest in protecting the identity of the informer; or
    (iv) Weigh up the informer’s right to have his identity protected in return for the valuable information against the public interest in the prevention and deterrence of crimes.

Answer 37

(iii) Weigh up whether there is a public interest in disclosing the identity as against a public interest in protecting the identity of the informer

Question 38

38. Informer Privilege is not absolute. What is the exception to this privilege?
    (i) Where disclosure would prove an accused’s innocence;
    (ii) There can be many instances as the Court has a wide discretion in determining what is and what is not covered under the privilege;
    (iii) Where the life of the informant is in danger;
    (iv) Where there was a public interest in revealing the identity of the information.

Answer 38

(i) Where disclosure would prove an accused’s innocence

Question 39

39. The issue of Informer Privilege was discussed in the case of Ward –v- Special Criminal Court. What was decided in this case:
    (i) An informer’s identity should always remain confidential, but an exception may be made in the most exceptional circumstances which would allow Defence Counsel to view the Statement of the informer. However, Defence Counsel were thereafter forbidden from revealing the content of the statement to the accused.
    (ii) As (i) above but the Court would also look at the document with Defence Counsel;
    (iii) An informer’s identity should be disclosed where there is any argument pertaining to the guilt/innocence of the accused; or
    (iv) The Court should look at the Informer’s statement to see if it might be useful in tending to prove the innocence of the accused.

Answer 39

(iv) The Court should look at the Informer’s statement to see if it might be useful in tending to prove the innocence of the accused.

Question 40

40. In what cases would a journalist be entitled to refuse of reveal their sources?:
    (i) Where the journalist’s life is in danger;
    (ii) Where the life of the informant is in danger;
    (iii) Where it might hinder the credibility of their work; or
    (iv) (ii) and (iii) above.

Answer 40

(ii) Where the life of the informant is in danger

Question 41

41. The matter of sacerdotal privilege was discussed in the case of Cook –v- Carroll. What were the principles that were established in that case:
    (i) The communication was one which was made in confidence;
    (ii) The relationship between a priest and his parishioners is a relationship which the public interest deems necessary to foster. As such confidence was an essential requirement to the healthy maintenance of the relationship;
    (iii) The Court should weigh up the likely harm that would be caused by mandatory disclosure against the benefit to be gained from such disclosure;
    (iv) All of the above.

Answer 41

(iv) All of the above.

Question 42

42. The fact that a relationship is based on confidence does not necessarily mean that the Courts will not order disclosure. Which of the following relationships will attract the privilege:
    (i) Doctor and patient relationship;
    (ii) Banker and customer relationship;
    (iii) Counsellor and patient relationship; or
    (iv) Accountant and client relationship.

Answer 42

(iii) Counsellor and patient relationship

Question 43

43. Procedurally, where should the documents alleged to the Privileged be listed?:
    (i) They don’t have to be listed at all as they are privileged;
    (ii) In the body of the Affidavit of Discovery;
    (iii) In Part I of the First Schedule of the Affidavit of Discovery; or
    (iv) In Part II of the First Schedule of the Affidavit of Discovery.

Answer 43

(iv) In Part II of the First Schedule of the Affidavit of Discovery.

Question 44

44. Is it necessary to and if so, how should one format one’s claim of privilege:
    (i) It is not necessary to format any claim of privilege which is being made;
    (ii) It is sufficient to make a generic claim of privilege over the class of documents which are to be covered;
    (iii) It is necessary to list the documents individually and to identify the privilege claimed over each of the documents; or
    (iv) One must list the documents individually and identify the privilege claimed over each of the documents as well as the reason why the document should remain privileged.

Answer 44

(iii) It is necessary to list the documents individually and to identify the privilege claimed over each of the documents

Question 45

45. If a party wishes to challenge a claim of privilege, what is the procedure:
    (i) Should bring an application based on a Notice of Motion and Grounding Affidavit to have the matter determined;
    (ii) Should make an ex parte application to have the matter determined;
    (iii) Should wait until the matter comes up for Hearing and make an application to have the matter determined at the very beginning of the Hearing; or
    (iv) None of the above.

Answer 45

(i) Should bring an application based on a Notice of Motion and Grounding Affidavit to have the matter determined

Question 46

46. There were two essential principles enunciated in the case of Duncan –v- Govenor of Portlaoise Prison. Which of the following were they:
    (i) A trial judge may inspect a document to ascertain if the claim of privilege is well founded;
    (ii) It is possible to cross-examine a deponent of an Affidavit of Discovery, but only if alternate remedies (eg.) order for further and better particulars etc., have proved ineffective;
    (iii) It is not the role of the Judge to edit documents for the purpose of finding the relevant material which is to be disclosed to the other side; or
    (iv) Both (ii) and (iii) above.

Answer 46

(iv) Both (ii) and (iii) above.

Question 47

47. When will discovery be granted?:
    (i) When one party requests it;
    (ii) When the court orders it;
    (iii) Where it is necessary for the fair disposal of the case; or
    (iv) Where it will further the case of the requesting party.

Answer 47

(iii) Where it is necessary for the fair disposal of the case

Question 48

48. What is the purpose behind discovery?:
    (i) To ensure that both Parties can obtain on all relevant material and to ensure that the court has all relevant material before it;
    (ii) To prevent an unfair advantage at the trial of the action;
    (iii) To define the issues that are in dispute as sharply as possible; or
    (iv) All of the above.

Answer 48

(iv) All of the above.

Question 49

49. What are the limits on the granting of discovery?:
    (i) It won’t be granted where it is sought to enable a party to plead a cause of action which he would otherwise not be in a position to plead without discovery;
    (ii) It won’t be granted where one side have not submitted to discovery;
    (iii) Both (i) and (ii) above; or
    (iv) None of the above.

Answer 49

(i) It won’t be granted where it is sought to enable a party to plead a cause of action which he would otherwise not be in a position to plead without discovery

Question 50

50. When is an application made for discovery?:
    (i) No later than 3 weeks after the action has been set down or, in relation to matters which have not been set down, 3 weeks after it has been listed for trial;
    (ii) No later than 2 months after the action has been set down or, in relation to matters which have not been set down, 2 months after it has been listed for trial;
    (iii) No later than 28 days after the action has been set down or, in relation to matters which have not been set down, 28 days after it has been listed for trial; or
    (iv) At any time during the proceedings.

Answer 50

(iii) No later than 28 days after the action has been set down or, in relation to matters which have not been set down, 28 days after it has been listed for trial

Question 51

51. Can discovery be granted before delivery of the Statement of Claim?:
    (i) Yes;
    (ii) No;
    (iii) Generally yes, but only in exceptional circumstances; or
    (iv) No where it is merely a fishing expedition.

Answer 51

(iii) Generally yes, but only in exceptional circumstances

Question 52

52. Under what Order of the Rules of the Superior Courts would a Party seek discovery before delivery of the Statement of Claim?:
    (i) Order 31, rule 12;
    (ii) Order 31, rule 12(5);
    (iii) Order 31, rule 15; or
    (iv) Order 31, rule 17.

Answer 52

(i) Order 31, rule 12

Question 53

53. What are the things taken into account by a Court in determining whether or not to grant discovery before delivery of the Statement of Claim?:
    (i) The complexity of the issues at hand;
    (ii) Whether a stateable case exists, which is capable of being pleaded;
    (iii) The need for a clear and concise Statement of Case which cannot be done unless discovery is granted; or
    (iv) All of the above.

Answer 53

(iv) All of the above.

Question 54

54. Order 31, rule 12(1) states the procedure which must be followed in relation to discovery. Which of the following correctly states the procedure?:
    (i) Notice of motion and grounding affidavit stating the categories of the documents sought; why the documents are necessary; and why the documents are required;
    (ii) Notice of motion and grounding affidavit stating the categories of the documents that are sought, and an averment to the effect that they are necessary for the fair disposal of the action;
    (iii) Notice of motion and grounding affidavit stating the categories of the documents that are sought, and an averment to the effect that they are necessary to save on costs; or
    (iv) A letter seeking voluntary discovery and if this is not complied with, then a Notice of motion and grounding affidavit stating the categories of the documents sought; why the documents are necessary; and why the documents are required.

Answer 54

(iv) A letter seeking voluntary discovery and if this is not complied with, then a Notice of motion and grounding affidavit stating the categories of the documents sought; why the documents are necessary; and why the documents are required.

Question 55

55. The decision of the Court in Compagnie Financiere du Pacifique –v- Peruvian Guana Co. stated that discovery should be granted where a document which is sought to be discovered related to the matters in question, which would not only be evidence on the issue but would also contain information that may directly or indirectly enable the Party requesting discovery either to advance his own case, or to damage the case of his adversary. How does the Master’s interpretation of this case differ from that of the High Court in deciding whether or not to grant discovery:
    (i) The Master refuses to grant discovery in any way, shape or form, unless the Party seeking discovery can show that he has no other way of proving his case without discovery;
    (ii) The Master refuses to take any of the issues raised in the above-mentioned case into account;
    (iii) The Master will not grant discovery if he feels there is some other way of proving a particular element of a case for which discovery is sought or if there is another way of damaging the other side’s case; or
    (iv) The Master determines the issue in line with the above-mentioned decision.

Answer 55

(iii) The Master will not grant discovery if he feels there is some other way of proving a particular element of a case for which discovery is sought or if there is another way of damaging the other side’s case

Question 56

56. A question(s) which the Court must ask itself before determining whether or not to grant discover was established in the case of Hannon –v- The Commissioners for Public Works & Others. This was as follows:
    (i) Is it probable that the document is relevant (in relation to the pleadings in the case) and not whether it may be relevant;
    (ii) Is it probable that the document is relevant (in relation to the pleadings in the case);
    (iii) To what extent would the granting of discovery be oppressive on the Parties; or
    (iv) Both (i) and (iii) above.

Answer 56

(iv) Both (i) and (iii) above.

Question 57

57. Order 31, rule 12 states that discovery should not be granted where the Court is of the opinion that it is not necessary for fairly disposing of the matter between the Parties. Which of the following correctly states the test of ‘necessity’ as confirmed by the Court in Ryanair –v- Aer Rianta:
    (i) The Court must have regard to the reasons furnished as to why the document is necessary;
    (ii) The court must have regard to the burden, the scale and the cost of the discovery which is sought;
    (iii) (i) and (ii) above as well as having regard to the issues of the case as stated in the pleadings; or
    (iv) (i) and (ii) above.

Answer 57

(iii) (i) and (ii) above as well as having regard to the issues of the case as stated in the pleadings

Question 58

58. What does not amount to a document in relation to discovery?:
    (i) Computer database;
    (ii) Microfiche;
    (iii) Photographs; or
    (iv) Newspapers.

Answer 58

(iv) Newspapers.

Question 59

59. What should not be included in a letter seeking voluntary discovery under Order 31, rule 12(4):
    (i) The categories of documents over which discovery is sought;
    (ii) The reasons why discovery is sought;
    (iii) The affidavit of discovery; or
    (iv) (ii) and (i) above.

Answer 59

(iii) The affidavit of discovery

Question 60

60. How is discovery made?
    (i) In a letter;
    (ii) In an affidavit;
    (iii) At the hearing; or
    (iv) Over the phone.

Answer 60

(ii) In an affidavit

Question 61

61. Under what circumstances would it not be appropriate for an application to be made to the Court seeking an order for discovery?
    (i) Where the other side has failed to make discovery;
    (ii) Where the other side has neglected to make discovery;
    (iii) Where the other side hasn’t made sufficient discovery; or
    (iv) Where the other side has refused to make discovery.

Answer 61

(iii) Where the other side hasn’t made sufficient discovery

Question 62

62. There are three remedies that are available where there has been an agreement to a request for voluntary discovery, but discovery has not been made within a reasonable time. Which of the following is not one of the remedies offered under Order 31, Rule 21 of the RSC:
    (i) Costs;
    (ii) Attachment;
    (iii) Action to be dismissed for want of prosecution; or
    (iv) Defence to be struck out.

Answer 62

(i) Costs

Question 63

63. What is the remedy available to a Party who has sought voluntary discovery but who has received no response to such a request:
    (i) Costs;
    (ii) Action to be dismissed for want of prosecution;
    (iii) Defence to be struck out;
    (iv) Seek an Order from the Master ordering discovery.

Answer 63

(iv) Seek an Order from the Master ordering discovery.

Question 64

64. What is the time limit for appealing a decision of the Master to order/refuse to order discovery to be made;
    (i) 8 days from the date of perfection of the Master’s Order;
    (ii) 6 days from the date of perfection of the Master’s Order;
    (iii) 10 days from the date of perfection of the Master’s Order; or
    (iv) 14 days from the date of perfection of the Master’s Order.

Answer 64

(iv) 14 days from the date of perfection of the Master’s Order.

Question 65

65. Under what circumstances will a claim be struck out for want of prosecution where the party has failed to comply with an order for discovery?:
    (i) Where the court is satisfied that the defendant is avoiding discovery;
    (ii) Where the omission to comply with the orders for discovery is not intentional;
    (iii) Where the court feels it necessary to punish the defaulter; or
    (iv) All of the above.

Answer 65

(i) Where the court is satisfied that the defendant is avoiding discovery

Question 66

66. On what grounds will further and better discovery not be ordered?
    (i) Where documents were omitted from the affidavit of discovery;
    (ii) Where documents were found to be irrelevant to the matters in the proceedings;
    (iii) Where documents came into existence after the swearing of the affidavit of discovery; or
    (iv) Where documents only came to the notice of the deponent after the affidavit of discovery was sworn.

Answer 66

(ii) Where documents were found to be irrelevant to the matters in the proceedings

There is not a continuing obligation to disclose in relation to (iii) above, however there is a continuing obligation to disclose in relation to (iv) above.

Question 67

67. Further and better discovery will only be ordered in extremely limited circumstances where the documents come into existence after the swearing of the affidavit of discovery. It has been stated that there is no continuing obligation for discovery however, it may be ordered in the interests of justice. What are the matters to be taken into account by the Court in this regard?
    (i) The documents sought; whether or not they are covered by privilege; that the documents sought could not be obtained from anywhere else; and that the documents are probably relevant;
    (ii) The documents sought; whether or not the documents are covered by any privilege; whether or not the documents come within the realms of one of the exceptions to the privilege; that the documents sought could not be obtained by any other means; that the documents are significantly important in the context of the dispute at hand; and that the documents are probably relevant;
    (iii) The same principles which would be looked at when a Party was seeking an order of discovery originally; and
    (iv) (ii) and (iii) above.

Answer 67

(ii) The documents sought; whether or not the documents are covered by any privilege; whether or not the documents come within the realms of one of the exceptions to the privilege; that the documents sought could not be obtained by any other means; that the documents are significantly important in the context of the dispute at hand; and that the documents are probably relevant

Question 68

68. Which is the correct provision which enables discovery to be made from non-parties:
    (i) Order 31, rule 20;
    (ii) Order 31, rule 18;
    (iii) Order 31, rule 27; or
    (iv) Order 31, rule 29.

Answer 68

(iv) Order 31, rule 29.

Question 69

69. There are limitations to this provision (68) which is as follows:
    (i) Discovery under this provision will only be granted where there is an intention to join the non-party as a party to the proceedings;
    (ii) Discovery under this provision will only be granted where there is no other realistic alternative available;
    (iii) Discovery under this provision will only be granted where the other side are amenable to the procedure; or
    (iv) Discovery under this provision will only be granted where the side seeking discovery can give an undertaking as to costs.

Answer 69

(ii) Discovery under this provision will only be granted where there is no other realistic alternative available

Question 70

70. Discovery may also be granted to establish the identity of an alleged wrongdoer. When will the Court allow this?:
    (i) At any stage;
    (ii) Where there is some proof that there party committed some wrongdoing;
    (iii) Only sparingly where there is clear evidence of some wrongdoing; or
    (iv) None of the above

Answer 70

(iii) Only sparingly where there is clear evidence of some wrongdoing

Question 71

71. What is a Norwich Pharmacol order?:
    (i) An order for discovery in relation to a party’s patent rights;
    (ii) An order for discovery in relation to the owner’s of a patent;
    (iii) Both (i) and (ii) above; or
    (iv) An Order for discovery from a person innocently caught up in the wrongdoing of another who may be compelled to expose the identity of the actual wrongdoer.

Answer 71

(iv) An Order for discovery from a person innocently caught up in the wrongdoing of another who may be compelled to expose the identity of the actual wrongdoer.

Question 72

72. What are the issues that the Court will take into account in an application for discovery in Judicial Review proceedings:
    (i) Where the facts/information sought relating to the dispute are necessary and relevant to that Party’s case;
    (ii) Where discovery is necessary for the fair disposal of the Judicial Review action;
    (iii) Whether it is being used to obtain discovery of documents with a view to instituting proceedings; or
    (iv) (i) and (ii) above.

Answer 72

(ii) Where discovery is necessary for the fair disposal of the Judicial Review action

Question 73

What Order of the Superior Court deals with Discovery in Civil Litigation?

Answer 73

Order 31 Rule 12

Question 74

What are the 5 exceptions to legal professional privilege?

Answer 74

1. Communications in furtherance of conduct, which is criminal, fraudulent or injurious to the interests of justice;
2. Testamentary dispositions;
3. Proceedings involving the welfare of children;
4. Where the innocence of a criminal Defendant is at stake;
5. Disclosure of expert witness reports in personal injury cases.

Question 75

What is inspection and what is the difference between an order for inspection and an order for discovery?

Answer 75

Inspection is going to look at the documents that were disclosed in the course of discovery. The discovery itself is only a list of the documents.