Discovery in Modular Trials: Court Files Must Be Accessed via Practice Direction HC86, Not Inter Partes, and Blanket Bankruptcy File Requests Are Impermissible

Case: Dunne & Ors v Lehane & Ors (Approved) [2025] IEHC 532, High Court of Ireland, 10 October 2025

Judge: Kennedy J

Introduction

This High Court decision addresses a discovery motion brought within long-running bankruptcy-related litigation arising from the adjudication of Sean Dunne. The plaintiffs—Mr. Dunne and his minor sons (suing by their father)—challenge the validity of the appointments of two former Official Assignees (OAs) and the lawfulness of actions taken under those appointments. A prior case management order by Nolan J directed a modular trial, with the first module confined to determining the validity of the OA appointments.

Against that backdrop, Mr. Dunne moved to compel the Examiner of the High Court and the Insolvency Service of Ireland (ISI) to provide his “full bankruptcy file” from 2013 to present “in a single, consolidated digital format within seven days.” The motion was framed as necessary to identify impugned acts of the OA(s) should their appointments prove invalid, invoking principles of fairness, audi alteram partem, and equality of arms. The respondents resisted on multiple grounds, including:

  • Court and Examiner files are held by the proper officer under Order 76 and are not in the possession, power, or procurement of the respondents.
  • Non-party discovery prerequisites were not met.
  • The discovery sought was irrelevant to the first module, disproportionate, and procedurally defective (no compliant voluntary discovery request).
  • The Examiner’s Office had already offered copy access to the file subject to the usual fees under Practice Direction HC86.

The judgment rigorously applies the discovery regime in the Rules of the Superior Courts (RSC), the case law on relevance, necessity, proportionality, the prohibition on “fishing expeditions,” and the special regime for court file access in Practice Direction HC86.

Summary of the Judgment

Kennedy J dismissed the discovery motion in full. The Court held that:

  • Inter partes discovery cannot compel the respondents to discover the Examiner’s Office or Court files where there is no evidence those files are or were in the respondents’ possession, power, or procurement.
  • Non-party discovery (Order 31, r.29) was unavailable because the applicant failed to satisfy foundational prerequisites, including exhausting other avenues of access (notably Practice Direction HC86 and Order 76 routes), establishing relevance and necessity, and making a proper pre-application request.
  • Even as against the respondents’ own files, the application failed because there was no valid voluntary discovery request, the categories were impermissibly broad and vague, the material was not relevant to the first module (validity of appointments), and the request was disproportionate and amounted to a fishing expedition.
  • The Examiner’s existing offer to provide copy access to the court file subject to the usual conditions and fees under PD HC86 was a complete answer to that part of the application.

Costs were reserved for a later hearing; written submissions were invited within the set page limit and timeline.

Analysis

Precedents and Authorities Cited and Their Influence

Order 31, Rule 12 RSC (Inter Partes Discovery)

The Court emphasised strict compliance with O.31 r.12 for inter partes discovery: a valid application requires a prior voluntary discovery request specifying categories, reasons, and, for ESI, whether searchable form is sought. The judge cited Sheehy & McAuley v Government of Ireland (Kelly J) and Swords v Western Proteins (Morris P) to stress the post-1999 “pinpointing” regime—blanket discovery is “a thing of the past.”

Relevance (Peruvian Guano; Ryanair v Aer Rianta)

The classic Peruvian Guano test, adopted by the Supreme Court in Ryanair v Aer Rianta, remains the touchstone: documents are relevant if they would be evidence on any issue or might lead to a train of inquiry to advance the applicant’s case or damage the opponent’s.

Necessity and Proportionality (Tobin v Minister for Defence; Dome Telecom; AstraZeneca)

The Court reiterated that even where relevance is shown, discovery is ordered only if necessary for the fair disposal of the case or to save costs, and if proportionate. Clarke CJ in Tobin consolidated proportionality as a controlling criterion; Dome Telecom and AstraZeneca underscore the need to weigh the expected evidential utility against the burdens and costs of discovery.

Fishing Expeditions (Aquatechnologie; Lombard v Kevin Devlin Transport)

Murray J’s warning in Aquatechnologie that discovery cannot be speculative was invoked. Donnelly J’s observations in Lombard reinforce that discovery aids the progress of existing litigation; it is not a device to find or construct a case after issuing proceedings.

Order 31, Rule 29 RSC (Non-Party Discovery); Chambers v Times; Fusco v O’Dea

The Court confirmed the stringent, discretionary nature of non-party discovery. Per Chambers v Times, courts should be slow to burden non-parties where a realistic alternative exists, and such orders are reserved for when the documents are not otherwise readily available. Fusco v O’Dea affirms the discretionary character of third-party discovery. The Court also referenced its own recent summary in O’Sullivan v AIB [2025] IEHC 487: before pursuing non-party discovery, a party must exhaust other routes (including inter partes discovery and proffered access).

Order 76 RSC and Practice Direction HC86 (Access to Court Files)

Order 76 r.64 applies the O.31 discovery regime to bankruptcy proceedings, “as far as practicable.” PD HC86, issued following Michael and Thomas Butler Ltd v Bosod Ltd [2018] IEHC 702 (Kelly P), safeguards the integrity of Superior Court files by prohibiting physical file access (even to parties), while permitting copies on payment of fees. The Court held that applicants must use PD HC86 and related mechanisms before seeking discovery orders for court-held files.

Costs and Bankrupt Litigants (Bank of Ireland v O’Donnell)

O’Donnell J’s remarks highlight judicial caution where litigants may not be subject to ordinary costs discipline. This informed the proportionality analysis and the Court’s reluctance to impose wide and costly discovery burdens where cost recovery may be doubtful.

Legal Reasoning

  1. Inter partes discovery cannot reach court-held files. Discovery under O.31 r.12 is confined to documents in a party’s possession, power, or procurement (PPP). The Examiner’s Office and Courts Service hold the bankruptcy court file as the “proper officer” under O.76. There was no evidence those files were or had been within the respondents’ PPP. Consequently, the application was “misconceived” insofar as it attempted to compel the respondents to discover Examiner/Court files.
  2. Non-party discovery prerequisites were not met, and PD HC86 had to be used first. For r.29 applications, the Court stated that the applicant must:
    • Make a proper pre-application request and exhaust other routes (including PD HC86/O.76 access and inter partes discovery).
    • Establish relevance and necessity tied to live issues on the pleadings.
    • Undertake to pay the costs of production irrespective of outcome.
    Even if these were met, the order would be discretionary and assessed for proportionality. Here, none were satisfied; PD HC86 access was offered and not pursued.
  3. No valid voluntary discovery request; categories were vague and overbroad. The applicant’s correspondence did not comply with O.31 r.12(6): it failed to specify precise categories, reasons, or ESI details and imposed arbitrary deadlines. The request for a “full bankruptcy file” over 12 years was the epitome of the blanket discovery now proscribed.
  4. Irrelevance and non-necessity in light of a modular trial. Following Nolan J’s modular order, the first module is confined to appointment validity. The plaintiff himself had previously said he “only” needed the respondents’ contractual/appointment documentation. Documents about the OA’s subsequent acts, however voluminous, do not bear on whether the appointments were valid. The Court thus found the sought discovery irrelevant to Module 1 and unnecessary at this stage.
  5. Proportionality and fishing concerns. The request would impose a heavy and costly burden, with doubtful incremental value for the validity issue. The Court considered it a fishing expedition, particularly given its breadth and the applicant’s inference that he needed the entire file to search for arguments. Proportionality weighed decisively against ordering such discovery.
  6. Existing avenues suffice; gaps would assist the applicant. The validity issue can be determined using already-available materials (FOI productions, exhibits, and any voluntary discovery tied to the appointments). Nolan J’s observation—that respondents will not “win” if they cannot produce documents evidencing valid appointment—undercuts any necessity for expansive discovery by the applicant. Indeed, any lacuna would tend to help Mr. Dunne on the validity question.
  7. Conduct and tone in correspondence. While not determinative, the Court noted that unreasonable tone and arbitrary demands may weigh in the exercise of discretion. Here, given the foundational failures, the Court did not have to rely on that factor to refuse the orders.

Impact and Significance

  • Primacy of PD HC86 for court file access. Parties cannot use inter partes discovery to compel production of court-held files. They must use PD HC86 (and pay the standard fees) before contemplating non-party discovery. This is particularly salient in bankruptcy matters governed by O.76.
  • Modular trial discipline narrows discovery. Where a case is managed modularly, discovery must be tightly aligned with the issues in the active module. Attempts to secure broad historical files untethered to the module’s issue are likely to fail as irrelevant, unnecessary, and disproportionate.
  • Reinforcement of the “no blanket discovery” rule. The decision fortifies the post-1999 regime requiring specific categories with reasons. Requests for “entire files” or multiple years of material will face heightened scrutiny and often be refused.
  • Non-party discovery is last resort. Courts will expect litigants to exhaust proffered access routes (including administrative access under PD HC86, FOI, and inter partes discovery) before invoking r.29. Undertakings to pay non-party costs and precise relevance showings will be critical.
  • Practical leverage for respondents on appointment-validity issues. In appointment-validity disputes, the evidential burden practically falls on officeholders to produce appointment instruments. Plaintiffs need not obtain sweeping discovery to test validity; the absence of such documents can itself be determinative.
  • Costs prudence and insolvency litigants. The Court’s reference to Bank of Ireland v O’Donnell signals a cautious approach to imposing heavy discovery burdens where cost recovery is uncertain, influencing future case management and proportionality assessments.

Complex Concepts Simplified

  • Possession, Power, or Procurement (PPP): Discovery can only be ordered for documents a party has, controls, or can practically obtain. Court and Examiner files are not within a respondent’s PPP merely because the respondent is a party to the litigation.
  • Voluntary Discovery Request (O.31 r.12(6)): Before going to court, the moving party must write a detailed letter: specify precise categories, explain why each is needed, and address ESI format. Skipping this step can doom an application.
  • Non-Party Discovery (O.31 r.29): A discretionary order against someone who isn’t a party. It’s exceptional; only when other routes are exhausted and the material is truly necessary and relevant. The applicant should be ready to cover the non-party’s costs of production.
  • Practice Direction HC86: You cannot “look at” the physical court file. Instead, you can get copies (if entitled) by paying the prescribed fee. Parties must pursue this route for court-held documents before seeking discovery orders.
  • Modular Trial: The court breaks a case into stages (modules). Discovery must be confined to the live module’s issues. Documents only relevant to later modules should wait.
  • Fishing Expedition: A discovery request made in the hope of finding something to support a case, without a specific, reasoned basis. Courts disallow these.
  • Proportionality: Even relevant documents may not be ordered if the burden and cost outweigh the likely benefit to resolving the case fairly and efficiently.

Practical Guidance and Checklists

For parties seeking discovery in modular proceedings

  • Identify the exact issue in the current module and limit categories to that issue.
  • Draft a compliant voluntary discovery letter:
    • List precise categories (avoid “entire file” requests).
    • Explain the relevance and necessity of each category.
    • Address ESI format and whether searchable production is sought.
    • Allow a reasonable time to respond.
  • Exhaust administrative routes (e.g., PD HC86 for court files; FOI where appropriate) before seeking court orders.
  • Be prepared to justify proportionality: volume, cost, burden, and concrete evidential value.
  • Avoid combative correspondence and arbitrary deadlines; tone can influence discretionary outcomes and costs.

For respondents facing wide-ranging discovery requests

  • Challenge PPP: demonstrate that court-held files are not in your possession, power, or procurement.
  • Insist on compliance with O.31 r.12 and oppose blanket or vague categories.
  • Invoke modular limitations where discovery strays beyond the live module.
  • Offer targeted, proportionate disclosure of genuinely relevant documents (e.g., appointment instruments) to streamline issues.
  • Direct applicants to PD HC86 for court file copies and require fees as prescribed.

Conclusion

Dunne & Ors v Lehane & Ors [2025] IEHC 532 is a forceful reaffirmation of discovery discipline in the High Court, with three standout messages:

  1. Court files are not discoverable inter partes. Parties must use Practice Direction HC86 to obtain copies and cannot bypass that regime via discovery against opponents.
  2. Discovery must track the modular architecture of the case. Requests must be tightly bound to the active module’s issues; broad “entire file” demands—especially spanning many years—are likely to be rejected as irrelevant, unnecessary, and disproportionate.
  3. Procedural preconditions matter. A compliant voluntary discovery request, precise categories, clear reasons, and exhaustion of alternative access routes are prerequisites, not optional extras. Fishing expeditions will be refused.

The judgment will shape discovery practice in insolvency-related litigation and beyond. It underscores the primacy of PD HC86 for court file access, the discipline demanded by modular trials, and the judiciary’s continued insistence on proportional, targeted, and procedurally compliant discovery. Litigants—including those in person—must calibrate discovery strategies accordingly or face dismissal and potential cost consequences.

Key Rules, Practice Direction, and Cases Cited

  • Order 31, Rule 12 RSC (inter partes discovery)
  • Order 31, Rule 29 RSC (non-party discovery)
  • Order 76 r.64 RSC (bankruptcy proceedings discovery)
  • Practice Direction HC86 (access to Superior Court files)
  • Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
  • Ryanair v Aer Rianta [2003] 4 IR 264
  • Sheehy and McAuley v Government of Ireland (HC, 30 July 2002)
  • Swords v Western Proteins Ltd [2001] 1 ILRM 481
  • Tobin v Minister for Defence [2019] IESC 57; [2020] 1 IR 211
  • Dome Telecom Ltd v Eircom Ltd [2007] IESC 59; [2008] 2 IR 726
  • AstraZeneca AB v Pinewood Laboratories Ltd [2011] IEHC 159
  • Aquatechnologie Ltd v National Standards Authority of Ireland [2000] IESC 64
  • Lombard Ireland Ltd v Kevin Devlin Transport [2014] IEHC 653
  • Chambers v Times Newspapers Ltd [1999] 2 IR 424
  • Fusco v O’Dea [1994] 2 IR 93
  • Michael and Thomas Butler Ltd v Bosod Ltd [2018] IEHC 702
  • O’Sullivan & Anor v AIB & Ors [2025] IEHC 487
  • Bank of Ireland v O’Donnell [2016] IECA 227; [2016] 2 ILRM 441