Background
Agnieszka Nowak, a former employee of Intesa San Paolo Vita S.P.A, was dismissed on 26 August 2015. She pursued unfair dismissal claims before the Employment Appeals Tribunal and subsequently the Circuit Court, while separately commencing two sets of High Court plenary proceedings (in 2016 and 2017) seeking damages of €250,000 for breach of employment contract, a declaration that her purported termination was invalid, reinstatement, and relief for an alleged breach of her right to privacy arising from unauthorised access to her work email. The two plenary actions were consolidated by order of Simons J. in June 2024.
Following consolidation, the plaintiff — representing herself — issued a voluntary discovery request to the defendant in July 2024. The defendant’s solicitors sought additional time on two occasions, citing the long vacation. Without receiving a substantive response, the plaintiff issued a discovery motion on 6 September 2024. The motion came before the Deputy Master on 5 December 2024; the defendant made oral submissions but filed no replying affidavit and refused to offer any discovery. The Deputy Master refused the motion and awarded costs against the plaintiff. She appealed that order to the High Court.
The four categories of documents sought related to: (i) the appointment of Mr. Dave Sheehan as disciplinary investigator; (ii) the reporting of his findings to the Board of Directors; (iii) any transfer of authority from the Board to Mr. Sheehan to terminate the plaintiff’s employment; and (iv) salary and employment records of four named colleagues, said to be relevant to an equal pay complaint.
The Court’s Holding
O’Donnell J. allowed the appeal in part. Applying the well-established principles from Tobin v. Minister for Defence [2020] 1 I.R. 211 and Ryan v. Dengrove DAC [2022] IECA 155, the court held that the first three categories — concerning the authority under which the plaintiff’s dismissal was effected — were both relevant and necessary. The parties were in direct dispute as to whether Mr. Sheehan had authority to conduct the disciplinary process and to sign the termination letter, and whether the decision was subsequently ratified by the CEO. Discovery was ordered of documents evidencing the process leading to termination, the authority or instructions given to any person involved, and any CEO ratification.
The court declined to order the broader discovery sought under the fourth category. The plaintiff’s pleaded case focused on whether her own remuneration had been reviewed under her contract between 2009 and 2015; there were no detailed particulars supporting a wider claim of unlawful discriminatory pay practices by reference to named comparators. The court found the comparator request to be in the nature of a fishing exercise and was also concerned about the privacy rights of the named non-party employees whose confidential pay and personnel records were sought. The court limited discovery under this category to documents evidencing any review of the plaintiff’s own remuneration between 2009 and 2015.
On costs, the court found the plaintiff partially successful and, notwithstanding that the motion had issued in the face of a not unreasonable request for time, the defendant’s blanket refusal to make any discovery — maintained without a replying affidavit even through the hearing — justified a costs order in the plaintiff’s favour. The court awarded the plaintiff 75% of costs as a litigant in person, both before the Deputy Master and on appeal, stayed pending the outcome of the overall proceedings. The court declined to fix a deadline for delivery of the affidavit of discovery pending a short hearing on 30 June 2026, at which the defendant may argue that discovery should be deferred in light of a possible application to strike out the plenary proceedings.
Key Takeaways
- Relevance for discovery purposes is assessed by reference to the pleadings and must be established as a matter of probability, not mere possibility; vague or unparticularised pleas will not sustain a wide-ranging discovery order.
- Confidentiality of non-party documents does not automatically defeat a discovery claim, but it requires the court to scrutinise carefully whether the documents are truly necessary given the risk of disproportionate intrusion into the rights of third parties.
- A blanket refusal to make any discovery, maintained without a replying affidavit up to the hearing, is a significant factor weighing against the refusing party on costs even where the applicant’s success is only partial.
- Where a defendant signals an intention to bring an application that might render discovery unnecessary, the court may defer fixing the timeline for making discovery — without endorsing or prejudging the merits of such an application — in order to avoid unnecessary costs to both sides.
Why It Matters
This judgment offers a concise illustration of the proportionality and necessity requirements that now shape discovery litigation in Ireland following Tobin and Dengrove. Courts will not allow discovery to serve as a mechanism for gathering evidence in support of poorly particularised allegations, particularly where third-party privacy interests are at stake. Practitioners advising on employment disputes should ensure that any equality or pay-comparator claims are adequately pleaded before seeking comparator documentation on discovery.
The costs ruling is also noteworthy. Even a self-represented litigant who issues a motion before the parties have fully exhausted correspondence may secure a substantial costs award where the opposing party stonewalls entirely and fails to file any replying affidavit. The decision reinforces the principle that a blanket refusal to engage with a discovery request — without advancing any alternative formulation — carries real litigation risk.