Discovery in Summary Appeal Proceedings: Limitation of Pre-Hearing Documentary Applications

Introduction

The High Court of Ireland’s decision in Tanager DAC & Anor v Doyle & Anor ([2025] IEHC 275) addresses a procedural question of critical importance to litigants appealing summary possession orders: whether appellants may seek discovery of documents in advance of the statutory rehearing of their appeal. The plaintiffs, Tanager DAC (formerly Tanager Limited) and Pepper Finance Corporation (Ireland) DAC, successfully obtained a Circuit Court possession order against Kieran and Elizabeth Doyle. The Doyles, proceeding in person, sought to compel the plaintiffs to disclose an extensive catalogue of documentary material before the hearing of their appeal. Ms Justice Eileen Roberts was tasked with determining whether such discovery is permissible under Section 37 of the Courts of Justice Act 1936 and Order 61 of the Rules of the Superior Courts.

Summary of the Judgment

After a detailed review of the statutory framework and the relevant precedents, the High Court refused the Doyles’ application for discovery. The Court held that:

The statutory regime requires that appeals from summary proceedings be dealt with by way of a rehearing based on evidence already before the lower court, unless special leave is obtained to adduce fresh evidence.
No leave to introduce new evidence or documents had been sought or granted.
In the absence of pleadings (typical of summary proceedings), there is no basis on which to assess relevance or necessity of discovery requests.
The request was premature; if the appeal survives the rehearing stage, the matter can be remitted to plenary hearing, pleadings exchanged, and discovery may then be ordered in respect of issues properly raised.

Analysis

Precedents Cited

Northern Bank Corporation Ltd v Charlton [1979] IR 149: Henchy J held that “rehearing” under Section 37(2) of the 1936 Act means determining the appeal on the evidence already before the Circuit Court and that fresh evidence is admissible only in exceptional cases.
ACC Loan Management Ltd v Oliver Kelly [2017] IEHC 304: Eagar J confirmed that discovery arises only when a defence has been raised and a court decides that summary judgment is not appropriate.
Keating v RTÉ [2013] IESC 22: The Supreme Court ruled that discovery is designed to aid in the progress of litigation, not to fish for potential causes of action or defences that a party is not already in a position to plead.
Lombard Ireland Ltd v Kevin Devlin Transport [2014] IEHC 653: An example where the High Court granted discovery in summary proceedings, but on distinguishable facts and in the context of a plenary adjournment.

Legal Reasoning

The Court’s reasoning unfolds in three stages:

Statutory Rehearing Regime: Section 37(2) of the Courts of Justice Act 1936 and Order 61 Rule 8 of the Rules of the Superior Courts mandate that appeals from summary proceedings be reheard de novo on the evidence adduced before the lower court. Fresh evidence is permitted only with leave.
Nature of Summary Proceedings: Summary possession proceedings proceed on affidavit without pleadings. Discovery is inherently tied to the exchange of pleadings in plenary proceedings, where relevancy and necessity can be assessed against defined issues. Absent pleadings, broad discovery requests cannot be measured against any pleaded case.
Timing and Prematurity: The Doyles’ motion sought discovery “prior to issue of a statement of claim” and “upon remittal to plenary.” The Court held that discovery is premature until after (a) the rehearing demonstrates an arguable defence, (b) remittal to plenary is ordered, and (c) pleadings are exchanged. Only then can the scope of discovery be properly tailored.

Impact

This judgment reinforces and clarifies the procedural boundaries for discovery in appeals from summary judgments, particularly in the context of mortgage possession:

Litigants in person and practitioners must recognize that discovery applications in summary appeals will be rejected unless leave to adduce fresh evidence is granted.
Counsel should prepare to meet summary appeals on the record before the lower court, focusing on demonstrating an “arguable defence” to secure a remittal to plenary hearing.
The decision discourages tactical delays and “fishing expedition” discovery applications designed to delay summary disposals.
Future cases will likely cite this decision to resist premature discovery in any summary judgment context, not just mortgage possession matters.

Complex Concepts Simplified

Summary Proceedings: A streamlined court process decided on written evidence (affidavits) without oral testimony or detailed pleadings.
Rehearing: A fresh consideration of the case by the appellate court on the same evidence, as if the original decision had not been made.
Pleading: Formal written statements of each party’s case (claims and defences) required in plenary proceedings.
Discovery: The court-ordered disclosure of documents in a party’s control that are relevant and necessary to the issues defined in the pleadings.
Arguable Defence: A defence with sufficient legal and factual basis to raise a real question for determination, thereby justifying a fuller (plenary) hearing.

Conclusion

Tanager DAC & Anor v Doyle & Anor establishes that appellants against summary possession orders cannot sidestep the statutory rehearing regime by obtaining extensive pre-hearing discovery. The judgment underscores the procedural logic: discovery must await a remittal to plenary after demonstrating an arguable defence on the existing record. This principle will guide practitioners and litigants in managing discovery applications and in structuring appeals against summary judgments across Irish courts.