Northern Ireland Court of Appeal suggests new approach to dealing with disclosure in legacy cases

Out-Law Analysis | 01 Feb 2018 | 9:48 am | 3 min. read

ANALYSIS: The Court of Appeal in Northern Ireland has appeared to support a more proportionate approach to document disclosure, particularly in legacy 'Troubles' cases.

The Gillen Report (426-page / 2.8MB PDF) of September 2017 set out concerns about the volume of material generated by the current test for disclosure, particularly in larger clinical negligence and commercial actions. Instead, it recommended moving towards a system of standard disclosure and reasonable search like that operational in England and Wales, subject to safeguards in appropriate cases.

Appeal court judges have signalled their support for this approach in a recent appeal case involving the seeking of documents connected to the Ballast Report into police management of paramilitary informants in the early 1990s; John Flynn v The Chief Constable of the Police Service. The official transcript of the judgment is yet to be published, however the Judicial Communications Office has provided a summary (6-page / 88KB PDF).

Although applicable only to legacy cases which involve applications for disclosure of material quantities of sensitive information as in the present case, there appears to be at least some indication in both the judgment and the Gillen Report that such an approach could be introduced for large commercial actions in the not-too-distant future.

The current disclosure rules

Document disclosure in Northern Ireland is currently governed by Order 24 of the Rules of the Court of Judicature (Northern Ireland) 1980 and is automatic after close of pleadings, with an ongoing duty to make disclosure as and when documents come to light. The current test for relevance in Northern Ireland is known as the Peruvian Guano (PG) test, after the relevant case. It requires disclosure of all documents which may fairly lead to a train of enquiry which may have the consequences of either enabling a party to advance his own case, or to damage that of his adversary - unless, of course, privilege applies.

Serious concerns have been raised regarding the vast numbers of documents provided in discovery in large commercial and clinical negligence as a result of this approach.

In September 2015, Northern Ireland's Lord Chief Justice, Sir Declan Morgan, announced the launch of a review of civil and family justice, led by Lord Justice Gillen, at the time a High Court judge in Northern Ireland. Among other things, the Gillen Report recommended that the disclosure rules be amended to introduce a system similar to that in England and Wales with a focus on standard disclosure and reasonable search, but with provision for specific discovery using the PG test in certain circumstances.

This approach would, in the words of Lord Justice Gillen, bring "the additional benefit of consistency, which is particularly important in commercial litigation".

The final Gillen Report was published in September 2017. Many of its recommendations require adoption by way of parliamentary process - something which is, of course, hampered in light of the currently non-active Assembly in Northern Ireland. However, it looks as though the courts are leading the charge on this, to the extent that it is within their powers.

A new approach in legacy cases

The Lord Chief Justice, giving the leading judgment in the present case, reiterated the concerns around the PG test for disclosure. He then went on to support what was said in the Gillen Report: that greater regard might be had to issues of proportionality for individual cases, rather than the 'same size fits all' approach required by the PG test.

The Court of Appeal commented on the laborious time spent on disclosure in legacy cases, in relation to both the volume of documents and the redaction of documents. It noted the conflict between the PG test in these circumstances and the overriding objective of the court: to deal with cases justly and expeditiously. As such, the court made particular directions to the parties involved in the present appeal, and suggested that a new approach be applied in such legacy cases involving applications for disclosure of material quantities of sensitive information:

  • documents relevant to the issues and facts should be provided in un-redacted form to legal representatives;
  • those documents should then be considered by the legal representatives in order to determine the most effective way in which to make disclosure, with disclosure initially being made on the basis of standard disclosure; and
  • although this disclosure will not, of course, eliminate the need for appropriate redaction of documents, such redaction will need to also be assessed for its proportionality. This may involve providing a summary of the relevant information, or making formal admissions in relation to the effective content of the documents.

Although this new approach appears to only apply to the present case and in similar circumstances, the same issues of volume of information and the potential need for redaction of a large amount of commercially-sensitive information can occur in large commercial actions. Given the explicit references in the Gillen Report to commercial actions which were explicitly endorsed here by the Court of Appeal, we could see this approach being approved by the court in such actions in the future.

Meghan Kirk is a commercial litigation expert at Pinsent Masons, the law firm behind Out-Law.com.