Discovery applications in the Masters Court

Bríd Moriarty BL 7 March 2007

___________________________________________________________

IInnttrroodduuccttiioonn o Amended rule o Changes o Test “relevance” and “necessity” o Case-law o The Master’s decisions o Practice in the Master’s Court

OOrriiggiinnaall RRuullee o Order 31 rule 12

o lSeemed onus was on party resisting discovery t IImmppeettuuss ffoorr cchhaannggee

o Brooks Thomas ltd. v. Impac Ltd. 1 I.L.R.M. 1

AAmmeennddeedd rruullee o SI 233 of 1999 o 3 August 1999 o New Order 31, rule 12 o

PPrroocceedduurraall cchhaannggeess

o 1.Each applicant for discovery must write seeking the opposing party's agreement to make voluntary discovery within a reasonable time

o 2.Voluntary letter must specify categories of discovery sought and reasons o 3.Notice of motion must also specify precise categories o 4.Motion must be grounded on affidavit verifying necessity

TTaayylloorr vv.. CClloonnmmeell HHeeaalltthhccaarree LLttdd.. [[22000044]] 11 II..RR.. 116699hegan J. at

“…I do not accept that the Master is confined in his ‘jurisdiction’ to making orders based on strict compliance with the rules….I think …that the Master has full power to waive any technical breach in the rules if the object of the rule, has in reality been achieved.”

OObbjjeecctt aanndd ppuurrppoossee ooff nneeww rruullee o Swords v. Western Protein Limited [2001] 1 I.R. 324 per Morris P. at 328 o I believe that Rules of the Superior Courts (No. 2) (Discovery), 1999, imposed

a clearly defined obligation upon a party seeking discovery to pinpoint the documents or category of documents required and required that party to give the reasons why they were required. Blanket discovery became a thing of the past.

BBuurrddeenn ooff PPrrooooff

o Ryanair p.l.c. v. Aer Rianta c.p.t. [2003] 4 I.R. 264 o Per Fennelly J. at p. 275 o The amendment to the rule has shifted the primary burden of proof. o The applicant must prove that the discovery sought “is necessary for

disposing fairly of the cause or matter.” This is not merely a formalistic requirement.

o The affidavit “must furnish the reasons why each category of documents is required.”

o Apart from alteration of prima facie burden of proof, the amended rule made no fundamental change in the law regarding discovery of documents.

o o Taylor v. Clonmel [2004] 1 I.R. 169 per Geoghegan J. at 182 o o l“Fennelly J. [in Ryanair] went on to observe that it was impossible to resist

the conclusion that the amendment to the rule had shifted that burden. However, in most cases this alteration in the rule may not make much practical difference. If a party is entitled to a document on grounds of relevance to assist him in his case, on the ordinary discovery principles it will usually be ‘necessary’.”

o Delaney and McGrath page 274 “…the change has clearly made it more difficult for the applicant for discovery to establish an entitlement to it.”

OOrrddeerr 3311 rr..1122((11)) (1) Any party may apply to the Court by way of notice of motion for an order

directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein.

““RReelleevvaannccee”” (2) The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian

Guano Company 11 QBD 55 (3) Per Brett LJ at 63 (4) lIt seems to me that every document relates to the matters in question in

the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may- not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly," because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own

case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.

o Murphy v. Donohoe Ltd. [1991] 1 I.R.123 at 129 o “relevance must be tested by the pleadings and the particulars.”

HHaannnnoonn vv.. CCoommmmiissssiioonneerrss ffoorr PPuubblliicc WWoorrkkss ((UUnnrreeppoorrtteedd,, HHiigghh CCoouurrtt,, MMccCCrraacckkeenn JJ..,, 44tthh AApprriill,, 22000011))

(5) "(1) The court must decide as a matter of probability as to whether any particular document is relevant to the issues to be tried. It is not for the court to order discovery simply because there is a possibility that documents may be relevant.

(6) l(2) Relevance must be determined in relation to the pleadings in this specific case. Relevance is not to be determined by reason of submissions as to alleged facts put forward in affidavits in relation to the application for further and better discovery unless such submissions relate back to the pleadings or to already discovered documents. It should be noted that O. 31, r. 12 of the Rules of the Superior Courts 1986 specifically relates to discovery of documents "relating to any matter in question therein".

(7) l(3) It follows from the first two principles that a party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other party's documentation is not permitted under the Rules.

(8) l(4) The court is entitled to take into account the extent to which discovery of documents might become oppressive, and should be astute to ensure that the procedure of discovery is not used as a tactic in the war between the parties."

(9) (10) Ryanair p.l.c. v. Aer Rianta c.p.t. [2003] 4 I.R. 264 per Fennelly J. (11) Peruvian Guano remains the universally accepted test of what is the primary

requirement for discovery, namely the relevance of the documents sought. (12) Long accepted as laying down appropriate test of relevancy (13) (14) Framus Ltd. v. CRH plc [2004] 2 I.R. 20 (15) (16) Murray J. at p.34 (17) Referred to Peruvian Guano (18) Aquatechnologie Ltd. v. National Authority Standards of Ireland (Unreported

Supreme Court, 10 July 2000) “there is nothing in that statement which is intended to qualify the principle, that documents sought on discovery must be relevant either directly or indirectly, to the matter in issue between the parties in the proceedings. Furthermore an applicant for discovery must show it is reasonable for the court to suppose that the documents contain information which may enable the applicant to advance his own case or damage that of his adversary. An applicant is not entitled to discovery based on mere speculation or …a fishing expedition.

(19) Cites Hannon

NNeecceessssiittyy o O.31, r. 12 (2) and (3) o (2) On the hearing of such application the Court may either refuse or adjourn

the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, …

o (3) An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

CCooooppeerr FFllyynnnn vv.. RRTTEE [[22000000]] II..RR.. 334444 o Kelly J. considered “necessity” in the context of application for inspection of

documents. o O.31, r.18 (2) “An order shall not be made under this rule if and so far as the

Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.”

o In determining whether inspection was necessary o Kelly J. at 354 cited o Taylor v. Anderton [1995] 1 W.L.R. 447 at p. 462 Bingham M.R said:- o "... The crucial consideration is, in my judgment, the meaning of the

expression 'disposing fairly of the cause or matter'. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment is the test."

o Science Research Council v. Nassè [1980] A.C. 1028 at p. 1071 Lord Salmon in his speech said:

o “…. What does 'necessary' in this context mean? It, of course, includes the case were the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order; but it is not confined to such cases. Suppose, for example a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection. I, of course, recognise that the tribunal, like the courts, has a discretion in the exercise of its power to order discovery.

RRyyaannaaiirr pp..ll..cc.. vv.. AAeerr RRiiaannttaa cc..pp..tt.. [[22000033]] 44 II..RR.. 226644

o Sub-rules 2 and 3, which deal inter alia with the necessity for discovery are taken unaltered from the old rule.( at 273)

o …the applicant does not have to prove that they [particular categories of documents] are, in any sense absolutely necessary. (P.276)

o “Litigious advantage” approach o …may not be wise to substitute a new term of art “litigious advantage” for

the words of the rule. o Discussion gives guidance o Change reflects concern about costly and protracted litigation o broad discretion conferred upon it by O. 31, r.12 (2) and (3), o Court must have regard to the issues in the action as they appear from the

pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required.

o It should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of discovery sought.

o The court should be willing to confine the categories of documents sought to what is genuinely necessary for the fairness of litigation.

o It may have regard of course to any alternative means of proof which are open to the applicant.

o The behaviour of the other party is relevant.

AApppplliiccaattiioonn ooff tthhee tteesstt iinn RRyyaannaaiirr o Per McCracken J. at 281 o Pl sought discovery of documents regarding the introduction of a levy at Cork

Airport. o “This would not seem relevant or necessary as it occurred some five years

after the action complained of by the plaintiff and indeed after the issue of proceedings.”

o Discovery was also refused in respect of another category of documents where the letter seeking voluntary discovery raised new issues of fact for the first time.

o “…they amounted to new causes of action which have not been pleaded, nor indeed denied, and therefore issue has not been joined in the pleadings….it is clear that if the statement of claim is ultimately amended...then the plaintiff would be entitled to seek discovery.” (At 282-3)

o Discovery also refused in respect of three “vague and wide-ranging” sub-categories

AApppplliiccaattiioonn ooff tthhee tteesstt iinn FFrraammuuss o Supreme Court upheld limited discovery ordered by High Court o Did not allow discovery where “price trends in the market may be subject of

expert evidence and the range of documents sought…is too broad in scope o High Court had exercised discretion of balancing sufficient discovery with

avoiding oppressive discovery

FFrraammuuss LLttdd.. vv.. CCRRHH ppllcc [[22000044]] 22 II..RR.. 2200

o Per Murray J. o Fennelly J. in Aer Rianta clearly set out the considerations which a court

should take into account in determining whether the documents sought in an

application for discovery are necessary for the fair disposal of a cause or matter.

PP..JJ.. CCaarrrroollll && CCoo.. LLttdd.. vv.. MMiinniisstteerr ffoorr HHeeaalltthh aanndd CChhiillddrreenn o Supreme Court, Unreported, 1 June 2006 o Per Geoghegan J. o Necessity o Availability of expert evidence

RReelleevvaannccee aanndd nneecceessssiittyy

o Ryanair o l“in the great majority of cases, discovery disputes have revolved around the

issue of relevancy. There are fewer cases concerning necessity. There are good reasons for this. If there are relevant documents in the possession of one party, it will normally be unfair if they are not available to the opposing party….The overriding interest in the proper conduct of the administration of justice will be the guiding consideration in the administration of justice.”

o

TTaayylloorr vv.. CClloonnmmeell [[22000044]] 11 II..RR.. 116699 o The strengthening of the amending rule, in my view, is so that the legal

advisers of the moving party will apply their minds not only to whether the documents are relevant but whether they are necessary. In most instances if they are relevant they will be necessary but there will be cases where that will not be so. It would defeat the whole purpose of discovery if detailed reasons had to be given in the grounding affidavit as to necessity. [In this case the reasons were set out in the letters which were exhibited.] The purpose of the amendment was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be. For many years before that, an unlimited general order for discovery was common practice….

FFrraammuuss aatt 3388 o It seems to me that in certain circumstances a too wide ranging order for

discovery may be an obstacle to the fair disposal of proceedings rather than the converse. As Fennelly J. pointed out, the crucial question is whether discovery is necessary for "disposing fairly of the cause or matter". I think it follows that there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial. That is not to gainsay in any sense that the primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.

FFrraammuuss o At 43

o In certain circumstances, the court may grant discovery on a more limited basis than that sought where it considers it appropriate to do so. On the other hand, it is not for the court to re-draft an applicant's motion where it in effect amounts to a form of blanket discovery, which I consider this particular request to be.

VVLLMM vv.. XXeerrooxx ((IIrreellaanndd)) LLttdd..,, UUnnrreeppoorrtteedd,, HHiigghh CCoouurrtt,, CCllaarrkkee JJ.. 2255 FFeebbrruuaarryy 22000055

o Allegedly defective machines o Plea in defence concerning negligence or contributory negligence on the part

of the plaintiff in the use of the machines o Q I must ask is “whether there are real grounds for believing that discovery

of the category concerned might advance the plaintiff’s case or damage the defendant’s case.”

o The establishment by the plaintiff of a failure to perform will not necessarily bring home his case…seems…that the existence of similar complaints … “might” damage the case of the defendant by making it less likely that any failure to perform on the part of the machines was due to a lack of proper care on the plaintiff’s part…

o Discovery sought was excessive, confined the category o Burden on defendants o Balanced against possibility that similar complaints could have a significant

and material bearing on the outcome of proceedings. o Any wider discovery would be oppressive o Master’s Decisions o Practice

Discovery in the Master’s Court:

Summary of the written decisions of the Master

Andrew Fitzpatrick BL 7 March 2007

Introduction

Order 63, r. 1(6) RSC empowers the Master of the High Court to hear all applications

for discovery, both inter partes and non-party, and subject to some exceptions1 the

vast majority of discovery applications are moved in the Master’s Court. Given

therefore that almost all practitioners will at some stage be required to move or

respond to an application for discovery in the Master’s Court, it would be useful for

them to have some body of law or written decisions to which they could turn in order

to find out exactly how their particular application might be treated or what

particular principles or tests they will have to consider in preparing for the

application.

Until relatively recently no such body of written decisions existed and while

practitioners could of course have regard to the leading High Court and Supreme

Court decisions on the general rules of discovery,2 these judgments would be of little

assistance in providing guidance as to whether a specific document, such as a safety

statement or records relating to the cleaning schedule of a particular premises,

would ordinarily be considered to be discoverable. The situation has changed in the

past six years and since 2001, a large number of written decisions have been handed

down by the Master of the High Court3, which provide practitioners with guidance as

1 Applications for discovery in judicial review proceedings are usually heard by a judge sitting in the Non-Jury/ Judicial Review List while discovery applications in Commercial Court proceedings are required to be brought in the Commercial Court List. 2 A non-exhaustive list of which would include Sterling- Winthrop Group Limited v Farbenfabriken Bayer AG [1967] IR 97, Brooks Thomas Limited v Impac [1999] 1 ILRM 171, Cooper-Flynn v RTE [2004] 2 IR 72, Ryanair plc v Aer Rianta cpt [2003] 4 IR 264 , Taylor v Clonmel Healthcare Limited [2004] 1 IR 169, Framus Limited v CRH plc [2004] 2 IR 20, and P.J. Carroll & Co Ltd v Minister for Health [2006] IESC 36; unreported, Supreme Court, June 1, 2006. 3 Edmund Honohan S.C.

to what specific categories of documents will ordinarily be considered to be

discoverable. This paper will examine the more important of these decisions and

attempt to set out some general rules which can be applied to most applications for

discovery that are brought in the Master’s Court. The final section will deal with

specific categories of documents that are frequently sought in applications for

discovery and will discuss the criteria that are usually applied when deciding whether

they ought to be discovered.

Pierse v Aghadoe Developments Limited

The starting point in any consideration of the decisions of the Master in relation to

discovery is Pierse v Agahadoe Developments Limited and Ballygowan Limited.4 This

was the first written decision which set out the substantive principles applicable to

discovery applications in the Master’s Court and mentioned two criteria which would

form the basis of all subsequent written decisions in this court.

The plaintiff in the case claimed damages for personal injuries which had been

caused when a glass bottle containing a carbonated drink fell and shattered on a

tiled floor, thereby sending a glass splinter into his eye. An application for discovery

was brought seeking discovery of all documents relating to “research, quality control

and other accidents involving such glass bottles for a pre-accident period of five

years” and the principal reason that had been given for seeking these documents

was that they would assist the plaintiff in proving a specific allegation that he had

raised in his statement of claim, that the defendants knew or ought to have known

that such bottles could explode when dropped on a hard surface.

The allegation to which the documents related was as to the state of the defendants’

knowledge of the risk of the likelihood of this form of accident occurring and in

considering the application, the Master divided allegations raised in statements of

claim into two categories:

“This claim is in the nature of a secondary basis of liability, pleaded to allow reliance

on same if the plaintiff’s principal claim (that the bottle was hazardous) is met with

defence evidence that this defendant did not know that such was the case. But does 4 Unreported, Master Honohan, 29th January, 2002.

this defendant escape liability if it proves ignorance of the hazard? I hardly think so.

Apart altogether from a clear credibility gap, with which I cannot concern myself, the

plaintiff can prove and succeed on his claim that this bottle was dangerous and this

defendant ought to have known this fact (especially under Defective Products

Legislation), by expert evidence he can himself obtain from any litigation engineer.

By no stretch of the imagination is it “necessary” for the plaintiff to have access to

the defendant’s files in the manner sought. He can make his case without them.”5

In asking whether the plaintiff should be entitled to discovery of the documents

sought, the Master asked firstly whether the issue to which the documents were said

to relate was a principal or a secondary issue. He went on to set out at the

difference between the two:

“If the fact itself is merely subsidiary, and incapable itself of constituting the principal

fact on which liability might be decided, whether or not the plaintiff can prove the

fact ceases to be a basis for ordering discovery, because the fact is not material.”6

The first principal set out in the decision therefore focuses on the nature of the issue

to which the documents in question are said to relate. The Master held that

documents would only be discoverable if the issue in relation to which they were

sought was a primary allegation or issue, one which, if proven by the plaintiff, would

be enough to enable him to succeed on the issue of liability. If the issue or allegation

was secondary and one which, even if fully proven, would not be enough to enable

the plaintiff to win the case on liability, then discovery of documents which related to

this secondary issue would not be ordered.

The second principal related to the alternative evidence or means of proof that was

available to the plaintiff other than the documents of which discovery was now being

sought. The Master alluded to this principal in the quote set out above in his

reference to obtaining evidence from an expert engineer and not from discovery. He

gave further clarity to the rule further on in the decision:

5 ibid., at p.2. 6 ibid.

“It is now essential if the plaintiff seeks discovery that the Court be satisfied that the

plaintiff cannot prove his case without documentary evidence of this fact.”7

The point being made here was that even if the plaintiff could demonstrate that the

documents sought related to a primary issue or allegation, he would not be able to

obtain discovery of the documents unless he could demonstrate that it was only

through these documents, and not through any other means, that he could

successfully prove this allegation. The example of such alternative means of proof

given by the Master was that of an expert engineer. The plaintiff had sought

discovery in order to demonstrate that the defendants ought to have known that the

glass bottle might explode but the Master held that this issue could quite easily be

proven by briefing an expert engineer who would examine the bottle and give an

opinion on whether its design or composition was such that its manufacturers ought

to have known that it might shatter.

The two principles of “primary allegation” and “alternative means of proof” recur

again and again in subsequent decisions of the Master and indeed almost all of his

written decisions rely in some way on one or both rules. The Master gave further

indication of exactly what was meant by these principles in his decision in Hogan v

McAteer and Mid Western Health Board8 where he linked them to the “relevance”

and “necessity” requirements provided for in Order 31, rule 12 RSC:

“Of course a party is free to advance any or all reasons which occur to it, but clearly

the only reasons which may sway the Court (or persuade the other party to agree to

voluntary discovery) will be those which:

(a.) specify the disputed fact in respect of which the documents in each

particular category may be probative, directly or indirectly, (in short,

the ‘relevance’), and

(b.) explain how the party requesting discovery cannot prove the disputed

fact without accessing the requested documents: (the ‘necessity’)”.9

7 ibid., at p.2. 8 Unreported, Master Honohan, 28th June, 2002. 9 ibid., at p. 2. See also comments at pp. 3-4 in Farnon v Dunnes Stores Dundalk Limited, (unreported, Master Honohan, 23rd June, 2005).

It is these principles that must be born in mind when drafting a letter seeking

voluntary discovery and the notice of motion and grounding affidavit for any

subsequent application for discovery in the Master’s Court. The letter seeking

discovery should set out in detail the reasons for which discovery of each category is

sought and should seek to address the two requirements identified above. The

wording of these reasons should be reproduced in full in any subsequent grounding

affidavit and while the Master may be prepared to overlook their omission,10 Ord. 31,

r. 12(4) RSC requires their inclusion.

When hearing an application for discovery, the Master will review the grounding

affidavit and exhibits to ascertain whether they disclose sufficient grounds to justify

an order for discovery. Where he forms the view that the reasons set out in the

affidavit do not provide enough detail on the basis of the request, he may still be

prepared to grant discovery where the documents sought are “patently

discoverable”. In Russell v Danann Clean Air Systems Limited,11 the Master held:

“We are, in effect, seeking to assess whether the category is “patently discoverable”

(per Taylor v Clonmel Healthcare Limited q.v.). In such instances, the Supreme Court

advises us to waive non compliance with the Rules of Court in the interests of

justice, the respondent being unable to plead prejudice because the discovery

ordered will be the unavoidable and irreducible minimum which the respondent must

be taken to have expected (the respondent may win his costs by agreeing to

voluntarily discovery categories or sub categories which are patently discoverable).”12

Later in the same decision, the Master held:

“Often, I will go the extra mile. I will read through the papers to see if I can spot any

reference which may suggest the existence of an evidential deficit. The sort of fact

which ought to have been deposed to in the grounding affidavit … Particulars are a

10 per Russell v Danann Clean Air Systems Limited, (Unreported, Master Honohan, 19th January, 2007), at p. 5. 11 (Unreported, Master Honohan, 19th January, 2007). 12 ibid., at p. 8.

good place to look. Or affidavits grounding applications to transfer from the Circuit

Court. Or advices on proofs inadvertently left with the papers handed into court.”13

It is clear therefore that a document will only be considered to be relevant to a

“matter in issue” when that issue is one the determination of which will also

determine the issue of liability in the case, while discovery of that document will only

be considered “necessary” when the party seeking discovery cannot prove that fact

or allegation without access to that document. The following two sections explore in

more detail what issues or allegations will be considered to be material in any given

situation and in what circumstances discovery of that document will be considered to

be necessary.

Material issues: essential and surplus allegations of fact

Documents which relate to the “state of a defendant’s knowledge” are frequently

sought in applications for discovery, most usually in personal injury cases but

frequently in other forms of litigation. In most situations, the documents in question

are sought to attempt to demonstrate that the defendant must actually have known

that a situation was dangerous or was on constructive notice of the facts giving rise

to the danger.

In Pierse v Agahadoe Developments Limited,14 the Master held that in personal injury

cases, whether the defendant did or did not know that a particular situation might

have been dangerous would almost always be a secondary and not a primary issue

because if the plaintiff could establish that the situation in question was dangerous,

then the defendant would not be able to avoid being fixed with liability through

pleading that he did not know it was dangerous. He expanded this view to cover

non-personal injury cases in Quigley v Dun Laoighare Rathdown County Council15

where the plaintiffs sought compensation for damage caused to their property by

structural works carried out by the defendants’ engineering works. Discovery was

13 ibid., at p. 9. See also Hardiman v Eastern Regional Health Authority, (Unreported, Master Honohan, 17th October, 2003). 14 Unreported, Master Honohan, 29th January, 2002. 15 Unreported, Master Honohan, 3rd May, 2002.

sought of certain documents to assist in demonstrating that the defendants knew or

ought to have known that their works might pose a risk to neighbouring properties.

After restating his view that “discovery should only usually be ordered of documents

which may even indirectly assist a party to prove a material fact…those which are

essential ingredients of the cause of action”,16 the Master went on to express his

doubts as to whether the state of a defendant’s knowledge could ever be an

essential ingredient of a cause of action:

“It is a rare enough case which is based on a cause of action an essential ingredient

of which is the defendant’s state of knowledge. Contrariwise a defendant cannot

usually expect to avoid liability by proving ignorance: this is a proposition which is

fully answered by the plaintiff’s plea that a defendant ‘ought to know’. Traditionally

this plea is to be found in a rolled up plea that the defendant ‘knew or ought to have

known’, but in logic the two pleas play different roles in the action, and ought to be

separated…

In most cases, the plaintiff can succeed by proving that he was injured by a motorist

driving dangerously, by the harassment of a fellow employee, by a hazard on the

building site, without having to prove that the motorist knew he was driving

dangerously, or that the employer knew of the fellow employee’s track record, or

that the builder knew that the scaffolding was unsafe. In these cases (almost res

ipsa loquitur cases), if the plaintiff fails to succeed in his primary claim, he cannot, as

a matter of logic, succeed in his secondary or alternative claim, namely that the

injury was caused by breach of a different duty of care, the grounded on a material

fact regarding the defendant’s state of knowledge.”17

This was not an absolute prohibition but the Master only envisaged limited situations

where the rule against ordering discovery of documents which related to the state of

the defendant’s knowledge would not be applied:

“There are of course exceptions such as the case of defendants whose breach of

duty of care is in permitting a recurrence of a circumstance which was known to

16 ibid., at p. 1. 17 ibid., at pp. 1 and 2.

them to have caused an injury when it first occurred. There, the duty of case springs

from the defendant’s state of knowledge – it is the primary case pleaded by the

Plaintiff.”18

It is perhaps this decision more than any other which has had the most far reaching

effects on discovery in personal injury cases because most claims for personal injury

involve some form of allegation that the defendant “knew or ought to have known”

that a particular situation was dangerous. As a result, most such proceedings lead to

an application for discovery of documents which relate to that allegation. Since

Quigley v Dun Laoghaire Rathdown County Council however, there has been little

prospect for any plaintiff to obtain discovery of such documents.19

Most of the Master’s written decisions deal with applications for discovery in personal

injury cases and many of these deal with the question of which allegations will be

considered to be primary or material and which will be considered to be secondary.

Almost all personal injury cases, most frequently in industrial accident claims, involve

some form of allegation that the defendant was guilty of a breach of statutory duty

in that he failed to observe the requirements of duties imposed on him by statute.

Whether such an allegation will be considered to be a material issue or not was

considered at some length by the Master in his decision in Rafferty v Lamp Post

Construction Company Limited,20 where the plaintiff brought an application for

discovery of all documents relating to the preparation and publication of the

Defendant’s safety statement, all documents ancillary to the Defendant’s risk

assessments, all records of safety training, all records of accidents of a similar nature

for a period of five years prior to the accident, and all documents “required to be

maintained by the Defendant under the Safety in Industry Acts.”

18 ibid., at p. 2. 19 See also Grant v Roche Products (Ireland) Limited, (Unreported, Master Honohan, 25th June, 2003), where the Master refused discovery of certain documents which apparently related to whether the defendants knew that certain of their products were unsafe. The Master held at p. 7, “ … in the Common Law it is not an essential proof for the plaintiff to demonstrate that the defendants knew the product was unsafe. It is an alleged fact (and denied), but it is not material.” Similarly, in Foley v Wateford VEC (Unreported, Master Honohan, 17th June, 2005), at p. 9, discovery was refused because the plaintiff’s “own evidence of [his] state of knowledge (at the material times) [was] the only basis on which he can prosecute the case.” 20 Unreported, Master Honohan, 29th April, 2003.

Noting that the reason given for requesting discovery of these documents was “to

consider and assess the Defendant’s compliance with the provisions of the Safety,

Health and Welfare at Work (General Application) Regulations 1993”,21 the Master

remarked that:

“The Safety in Industry Acts have the merit of precision and clarity in their

exhaustive particularisation of the standard of care. It is therefore all the more

irritating to find statutory provisions listed apparently at random in a catch all

attempt to procure fishing expedition discovery.

The simple unadorned plea of breach of a particular section of the Act (or

Regulations made thereunder) is not specific enough to ground an application for

discovery. One must plead the allegation of fact constituting the breach of such

provisions.”22

The plaintiff had pleaded that the defendant had breached its statutory duty by

“being in breach of sections 6, 8, 10, 11, 12, 13, 17, 21 and 28 of the (1993)

Regulations”23 but the Master was of the view that without detailed recitation of the

specific facts upon which each such allegation of breach was based, the plaintiff

could not be entitled to discovery of documents relating to such allegations because

of the countless obligations imposed on employers by each individual section:

“In one case (Reg 17) the obligation is to ensure that the place of work satisfies the

specifics listed in the 2nd, 3rd and 4th schedule. In all, those schedules contain 93

separate requirements. In short, citation of the provisions of Statute is not being

employed to benefit from the precision of the statutory material. It is being used to

complicate a perfectly straightforward case.”24

Further on in the decision, the Master went further and questioned whether an

allegation that the defendant had breached a statutory obligation could ever be a

material allegation:

21 ibid., at p. 1. 22 ibid., at p. 2. 23 ibid., at p. 3 24 ibid.

“In any event, these allegations, even where they appear to enjoy some prima facie

connection with the pleaded circumstances of the accident, will never attain the

status of materiality. If the plaintiff cannot bring home his case in Common Law, for

whatever reason, no proven technical breach of the Regulations will assist him to

succeed. This is not a matter of opinion. It is a matter of logic.”25

The Master’s view would therefore appear to be that an allegation of a breach of

statutory duty will almost never be considered to be a material or primary issue and

a plaintiff raising such allegations will only become entitled to documents relating to

such allegations where, in his statement of claim, he recites specific factual grounds

to support his allegations of breach of statutory duty and its relevance to the issue of

liability.

Continuing in the personal injury context and aside from allegations relating to the

state of a defendant’s knowledge and breaches of statutory duty, the Master has

held that certain other allegations could not be considered to be material and hence

discovery of documents relating to same should not be ordered. In Linsley v Cadbury

Schweppes International Beverages Limited,26 he held that documents relating to

previous inspections of the locus carried out by the defendant were not discoverable

because “…if the plaintiff proves that the gantry was indeed hazardous the court will

not enquire as to whether or not the defendant had previously inspected it. If, on the

other hand, it was safe, then there is nothing further to be made of the inspection

issue.”27

Similarly, in Kelly v Van den Bergh Foods Limited and Unilever (Ireland) Limited,28 it

was held that documents relating to the maintenance of a particular machine were

not relevant to a material issue because it was only the condition of the machine at

the time of the accident that was relevant because if it was dangerous at the time of

the accident then “The defendant cannot avoid liability by establishing that the

machine was not being refurbished.”29

25 ibid. See also Central Parking System (Ireland) Limited v Dublin City Council (Unreported, Master Honohan, 6th October, 2005.) 26 Unreported, Master Honohan, 19th February, 2004. 27 ibid., at p. 4. 28 Unreported, Master Honohan, 16th January, 2003. 29 ibid., at p. 4.

Further, in Byrne v Eastern Regional Health Authority,30 it was held that a nurse who

had been assaulted by a patient was not entitled to discovery of documents relating

to how the defendant decided what precautions to take in respect of that particular

patient, while in Downey v Minister for Education and Science,31 it was held that a

mentally handicapped child who claimed that the State had inadequately provided for

her education was not entitled to discovery of documents which related to funding of

care services afforded to her.

In summary on this point,32 practitioners who seek discovery of documents should

first ask themselves whether the factual allegation which they wish to prove is an

issue which is “material” to the case. In short they should ask whether their client

will win his case if this allegation is successfully proved. If the answer to this

question is no, then it is more than likely that discovery of these documents will not

be ordered.

Evidential deficit and alternative means of proof

As stated above, even if the plaintiff can demonstrate that the issue to which the

documents he seeks are said to relate is a material issue, it must still be established

that the plaintiff cannot succeed in proving this allegation without access to the

documents in question. The Master applies this test as part of the overall question as

to whether discovery of the documents is “necessary for the fair disposal of the

cause or action”33 and in doing so, will ask whether the plaintiff has any other

sources of evidence open to him other than the documents which he seeks. The

importance attached to this principle can be gleaned from the following comments in

Farnon v Dunnes Stores Dundalk Limited:34

“The verification required of applicants should not be just an empty formula. Unless

the particular circumstances as to available evidence, experts’ requirements and so

30 Unreported, Master Honohan, 27th April, 2004. 31 Unreported, Master Honohan, 14th May, 2002. 32 See also O’Donovan v Irish Dunlop Company Limited (Unreported, Master Honohan, 10th October, 2002), Brady v McMahon (Unreported, Master Honohan, 10th December, 2002), Foley v Wateford VEC (Unreported, Master Honohan, 17th June, 2005). 33 See Cooper-Flynn v RTE [2004] 2 IR 72, Ryanair plc v Aer Rianta cpt [2003] 4 IR 264 , Taylor v Clonmel Healthcare Limited [2004] 1 IR 169, Framus Limited v CRH plc [2004] 2 IR 20. 34 Unreported, Master Honohan, 23rd June, 2005.

forth are mentioned as the basis on which the applicant has formed his conclusion as

to necessity, the respondent is unable to know or meet the case being made.

Unfortunately most applicants put their case (usually set out in the reason for each

category sought in voluntary discovery) solely on the basis that the documents in a

particular category are relevant to a particular fact which is in dispute. Clearly, that's

not enough.”35

Similarly, in Kelly v Mona (Ireland) Limited,36 it was held that practitioners should

think carefully before bringing an application for discovery:

“Practitioners ought to first ask themselves: what evidence am I missing which is

crucial to the client's claim. Then: can I get this evidence without accessing the

defendant's files? And, if not: what category of the defendant's documents may yield

up evidence of the missing pieces of the jigsaw?”37

Two specific alternative means of proof are frequently referred to in the Master’s

decisions, expert evidence and direct evidence from eye-witnesses.

The interaction between expert evidence and discovery was first considered in detail

by the Master in his decision in Clarke v Drogheda Corporation,38 where the plaintiff

tripped and fell over rocks which had been allowed to accumulate on a public

footpath. One of the allegations raised by the plaintiff was that the lighting at the

footpath area was inadequate and discovery was sought of documents relating to

inter alia the “design and provision of lighting” at the locus.

The Master began his decision by commenting on the increase in the number of

discovery applications in recent years and the tendency of practitioners to overlook

the relative simplicity of cases:

“Not so very many years ago, a case of this sort would have proceeded to trial

without discovery, even though general discovery would have been available for the

asking…In a case of this sort, where the Plaintiff herself and an engineer, who would

35 ibid., at p. 3. 36 Unreported, Master Honohan, 21st October, 2003. 37 ibid. 38 Unreported, Master Honohan, 16th January, 2003.

report on the accident site, were expected to be available to make the Plaintiff’s

case, Counsel advising proofs would not feel that anything else was required.”39

He then went on to consider that there was no necessity to order discovery of the

documents relating to the design of the lighting because “The Plaintiff’s engineer can

prove this, can he not?”40 The point being made here was that the plaintiff could

simply prove his allegation that the lighting at the footpath was not adequate by

briefing an engineer to inspect the site and to observe the adequacy of the lighting

for himself. This would be a far simpler procedure from the point of view of both

parties rather than to order the defendant to trawl through files for documents which

might not be of any assistance in the first place.

A similar approach was adopted in Forde v Dublin Bus41 where a passenger on a bus

was hit by canister of diesel which had been thrown through the bus’ doors by an

unidentified assailant. Claiming inter alia that the doors of the bus had been

negligently designed, the plaintiff sought discovery of a wide range of documents

including documents relating to the training given to bus drivers on the 78a route,

their previous experience, any previous assaults or violent episodes, previous

complaints of similar incidents, the installation of glass safety screens and any other

security precautions that were taken and the Defendant’s safety statements and risk

assessments.

Discovery of each category was refused on the ground that the plaintiff could obtain

proof of the facts to which each document was said to relate by commissioning his

own expert’s report:

“The Plaintiff just wants to access the details: it is a matter of convenience. That is

the sense in which the plaintiff seeks to know what the defendant knew. Is that not

‘fishing’? It’s handier for the plaintiff to identify the step from perusal of the

defendant’s files then to commission his own expert report identifying a scheme of

reasonable care. There may be the basis of a cost saving rationale in this, but since

the defendant maintains …that there was nothing more it could have done, and the

39 ibid., at p. 2. 40 ibid., at p. 5 41 Unreported, Master Honohan, 13th March, 2003.

plaintiff is likely to instruct an expert witness anyhow, discovery sought is not

necessary.”42

It is clear therefore that if there is any possibility that the plaintiff will be able to

successfully prove a material issue through commissioning an expert to inspect the

locus of the accident, then discovery of the documents in question will not be

ordered. What of the situation where a plaintiff seeks documents because the expert

that he has briefed advices that he will need these documents in order to more

properly form his opinion on the case? This situation was considered in Aherne v

Southern Health Board43 where a home carer who twisted and hurt her back when

the elderly patient she was assisting to dress lost his balance, started to fall and had

to be pulled back by the plaintiff. Twelve categories of documents were sought with

the plaintiff’s grounding affidavit averring that her expert witness had requested

them. The Master was of the view that a bare averment in an affidavit that an expert

had requested particular documents was not enough:

“When the Court is asked to order discovery of documents because the expert says

he needs them, the Court needs to be told why he needs them… The Court needs to

be satisfied that the documents are needed by the expert for the purpose of

preparing his expert evidence on a material factual matter and not for nonmaterial,

surplus or extraneous purposes… The only circumstances in which documents will be

ordered at the request of an expert is when the expert avers that he is unable,

without such documents, to express a conclusions as to a specified fact involving

scientific complexities unfamiliar to a layman.”44

Here, even though an affidavit had been sworn by the expert setting out why the

documents were needed, the Master refused to order discovery because “A layman

with no specialist expertise could understand the point being made – surely that is

the test as to whether specialist expert evidence is required.”45

42 ibid., at p. 6. 43 Unreported, Master Honohan, 29th April, 2005. 44 ibid., at p. 3. 45 ibid., at pp. 3 and 4.

A similar decision was given in A.K. v P.K.,46 which concerned an application for

discovery in a divorce action where the applicant’s accountant had provided a list

headed “information required under discovery”. The list referred to 34 categories of

documents. The Master did not accept that these documents were required:

“I must ask the question: what does this accountant think he is up to? Precisely what

is the expert evidence that he is being retained to provide? He cannot seek discovery

simply to have a good look around Mr. K.'s records to see what he can come up

with. That is fishing: not even an expert is allowed to fish. The accountant doesn't

say if he has examined the audited accounts furnished. If he has, he doesn't tell us if

he has spotted anywhere where they don't add up. This is also of significance.

And in this exchange of affidavits, and in the affidavit of discovery and the

discovered document themselves (which have been furnished to me and I have

considered) I can find nothing whatsoever which might prompt the lines of inquiry

which the accountant now apparently wants to investigate. There is nothing, repeat

nothing, suggesting Revenue irregularities on the part of Mr. K., and to suggest

otherwise is to cast an unwarranted slur. The Court will not tolerate such an abuse of

the accountant's somewhat privileged position.”47

The possible availability of eye witnesses, including the plaintiff himself, who will be

able to give evidence in court as to the circumstances of the accident has also been

cited by the Master as an alternative means of proof which will justify a refusal of

discovery. In Rafferty v Lamp Post Construction Company Limited,48 where the

plaintiff was being assisted in carrying a piece of sheet metal just before he tripped,

it was held that “the plaintiff has no need of discovery…He has three good witnesses

and himself to give evidence that he tripped over an obstruction on the floor.”49

Similarly, in Doyle v Matassa,50 where the plaintiff had slipped upon a wet floor at a

time when there were many customers in the shop was refused discovery of a video

recording of the incident because:

46 Unreported, Master Honohan, 27th July, 2005. 47 ibid., at pp. 2-3. 48 Unreported, Master Honohan, 29th April, 2003. 49 ibid. 50 Unreported, Master Honohan, 9th December, 2004.

“In the absence of any evidence (in the grounding affidavit) that the plaintiff himself

cannot give evidence as to (a.), (b.), (c.) and (d.) [relating to the circumstances of

the accident and the floor] or that the eight other witnesses were either looking

away or unavailable, there is no basis on which I can find that discovery is

necessary.”51

While both of the foregoing cases mention the possible availability of the plaintiff and

other witnesses to give evidence, discovery may be refused where it is only the

plaintiff who might be able to give evidence as to what occurred. In Furlong v

Minister for Defence,52 where a soldier was assaulted by another soldier in his

barracks, the Master stated that a report into the incident which was complied by the

military police might well have been a discoverable document save for the fact that

“the plaintiff [was] well capable of offering his evidence to the Court as to the

circumstances…”53

Dowling v Dunnes Stores

A useful summary of the approach taken in the Master’s Court when hearing

discovery applications can be found in this decision. Here, the court applied a test

and applies for the first time a test based not solely on the plaintiff’s position and

whether he was entitled to the documents, but also on the defendant’s position and

whether an order for discovery would place an onerous obligation on him.

Dowling v Dunnes Stores54 involved a security manager who slipped and fell on oil at

the defendant’s branch in Limerick. Discovery was sought of documents relating to

the cleaning system in place at the supermarket, both generally and specifically on

the day of the accident, as well as any report into or video of the incident. Setting

out his approach to dealing with discovery applications, the Master stated:

“Processing discovery applications is easy enough. First, peruse the pleadings to

identify the cause of action. It is necessary to know this because discovery will be

51 ibid., at p. 3. 52 Unreported, Master Honohan, 7th March, 2003. 53 ibid., at p. 5. 54 Unreported, Master Honohan, 20th January, 2006.

ordered in connection with only those facts which are legal ingredients of the

pleaded claim: the material facts.”55

Having recited the material facts and particulars of negligence alleged in the case,

the Master proceeded to apply the next step in the process, “Next, eliminate any of

the above which is pleaded in such general terms that discovery in respect of same

would be a ‘fishing expedition’, as was done in the Supreme Court in Framus Limited

and others v CRH plc and others (Unreported, Supreme Court, 22nd April, 2004).”56

Eliminating eight such allegations, the next step was to “eliminate allegations of facts

which are not material (including facts which are surplus or secondary in the sense

that the plaintiff’s case will stand or fall on primary facts)…”57

Expressing his view that the allegations that the plaintiff had exposed the plaintiff to

a risk of injury of which he ought to have been aware was one such surplus fact or

allegation, the Master then stated that:

“Particular attention should be paid to the defence. Even if the plaintiff has no

particular evidential difficulties in proving his case, he may be faced with a specific

allegation in the defence which suggests that the defendant intends to push a

particular line…Is the plaintiff entitled… to any documents the defendant may have

to support such allegations?”58

Having thus summarised his approach, the Master next commented on the fact that

the test as previously applied by him might be argued to be “not as generous a

yardstick of discoverability as described by Brett LJ in Peruvian Guano Co. (1882) 11

QBD 55, ruling that documents should be discovered ‘which may, not which must,

either directly or indirectly enable the party requiring the affidavit to advance his own

case or to damage the case of his adversary.’”59

55 ibid., at p. 2. 56 ibid., at p. 4. 57 ibid. 58 ibid., at p. 5. 59 ibid., at p. 6.

Arguing that the need for discovery must be “assessed by reference to whether

‘logically probative’ evidence is needed to prove the material facts”,60 the Master

cited the English case of O.Co. v M.Co.61 where Colman J. held that “the excessively

wide application of Lord Justice Brett’s formulation…has probably contributed more

to the increase of the costs of English…litigation in recent years than any factor…”62

Agreeing that no party to should be required to “turn out the contents of their filing

system”63, the Master cited64 the dicta of Murray C.J. in Framus Limited and others v

CRH plc:65

“There must be some proportionality between the extent or volume of the

documents to be discovered and the degree to which the documents are likely to

advance the case of the applicant or damage the case of his or her opponent…”

The decision in Dowling v Dunnes Stores was important for two reasons. Firstly, it

summarised the approach taken by the Master in discovery applications and

highlighted his preference for reviewing the pleadings in the case and ascertaining

from those and the evidential position of the plaintiff whether the documents sought

related to material issues in the case and whether discovery of those documents is

necessary. Secondly, the decisions expressly endorsed the “proportionality” test

which had been applied in Framus. While it is unclear as to how the test would be

applied in practice, it is clear that in the future, such a concept will be considered in

the Master’s Court. It is uncertain as to how the issue would be raised and whether a

defendant would have to detail the potential number of documents he may be

required to discover on affidavit evidence or whether the plaintiff would have to

meet a rebuttable presumption that there is a large amount of documents to be

reviewed is a question that has to be answered. It should be pointed however that

this question has not been answered in any of the Irish66 or English67 decisions which

have considered the issue. Further clarification on this point is required.

60 ibid. 61 [1996] 2 Lloyds Rep. 347. 62 Unreported, Master Honohan, 20th January, 2006, at p. 7. 63 ibid. 64 Unreported, Master Honohan, 20th January, 2006, at p. 7. 65 ibid. 66 Framus Limited v CRH plc [2004] 2 IR 20.

Discoverability of specific documents

Considering the principles set out above, it is possible to summarise the approach

taken by the Master when asked to order discovery of specific documents in personal

injury cases.

(a.) Safety Statement

The Master’s general practice will be to refuse discovery of safety

statements. Explaining his rationale for this in Kelly v Van den Bergh

Foods Limited and Unilever (Ireland) Limited,68 he held:

“The content of a Third Party report or guidelines, or standard procedures

is never the yardstick by which the Court determines the measure of what

constitutes ‘reasonable’ care: that adjudication is by reference to the

standard of the reasonable man.”69

Perhaps the greatest illustration of his preference to refuse to order

discovery of safety statements can be seen from the following comments

in Linsley v Cadbury Schweppes International Beverages Limited:70

“In a factory accident context, the failure of the defendant to comply with

his statutory obligation to prepare a safety statement is just such a

surplus fact. I always consider most carefully requests for discovery of

safety statements before rejecting them. The non-existence of such a

statement is directly probative of nothing except failure to compile same

and though if indirectly probative of the defendant’s attitude to safety

issues, this attitude is rarely material.”71

67 Science Research Council v Nassé [1980] A.C. 1028, Dolling-Baker v Merrett [1990] 1 W.L.R. 1205. 68 Unreported, Master Honohan, 16th January, 2003. 69 ibid., at p. 3. 70 Unreported, Master Honohan, 19th February, 2004. 71 ibid. See also Kelly v Mona (Ireland) Limited, (Unreported, Master Honohan, 21st October, 2003).

(b.) Accident Report Form:

The general view is that discovery of an accident report form or other

documents which record the occurrence of an accident will only be

ordered where there is some question or doubt raised as to the ability of

the plaintiff or other witnesses to give evidence as to what occurred at

the time of the accident. We have already seen this approach in Furlong v

Minister for Defence,72 the Master refused discovery of the police report

into an assault because “the plaintiff [was] well capable of offering his

evidence to the Court as to the circumstances…”. This approach was

continued in Dowling v Dunnes Stores73 where discovery of a video of an

accident was refused because “the plaintiff has not only himself, but two

other witnesses as to the grease on the floor.”74

(c.) Cleaning Schedules and system:

In cases where a plaintiff claims to have slipped and fallen upon the floor

of a premises, the Master tends to order discovery of documents relating

to the cleaning system and schedule in force at the time of the accident

where the defendant claims that the cleaning system he had in force at

the time of the accident was all that could be reasonably expected of him

in the circumstances. This approach can be seen from Doyle v Matassa:75

“As for (e.), regarding the adequacy of the cleaning system, the position

is a little more complex. The plaintiff, having given his evidence as to the

slipperiness of the wet floor, can invite the trial judge to find, by way of

inference, that the cleaning system was inadequate. He may, however, be

met by the defendant’s evidence and contention that the system

employed the obligation to be reasonably careful… In fairness to the

plaintiff, then, documents recording the cleaning which was undertaken

around the time of the accident should be discovered.”76

72 Unreported, Master Honohan, 7th March, 2003. 73 Unreported, Master Honohan, 20th January, 2006. 74 Ibid. at p. 15 75 Unreported, Master Honohan, 9th December, 2004. 76 ibid.

(d.) Training records:

Where an accident occurs at work and the plaintiff pleads that he was not

properly trained by the defendant, discovery of the records of the training

given to the plaintiff will usually not be ordered where the documents are

only sought to support the plaintiff’s own evidence as to the training he

received. In Farnon v Dunnes Stores Dundalk Limited,77 the Master

explained that to allow discovery of such documents to a plaintiff would

prejudice the defendant’s ability to present his case at trial:

“In fairness to the defendant if a plaintiff, for example, alleges he was not

trained and the defendant pleads that he was, a plaintiff ought to face

cross-examination on that point in ignorance of what documentary

evidence the defendant may put to him: otherwise, he enjoys the luxury

of withdrawing his allegation before the trial if he becomes aware that the

defendant can prove him to be lying. The defendant, having such

evidence, is entitled to deploy it, sight unseen, to damage the plaintiff's

evidence on this point and perhaps consequently on other points also. It

is unfair to the defendant to deprive him of that opportunity. Instead of

seeking discovery, the plaintiff should opt for giving his evidence

truthfully.”78

Where however it is the defendant who raises the issue of the plaintiff’s

training in its own defence the situation is slightly different as can be seen

from the following comments in Dowling v Dunnes Stores:79

“…the defendant will himself be seeking to prove…reasonable

care…e.g…that the employee failed to his work as trained. Is the plaintiff

entitled, in all fairness, to any documents the defendant may have to

support such allegations. Sometimes: it would depend on whether the

77 Unreported, Master Honohan, 23rd June, 2005. 78 ibid., at p. 7. 79 Unreported, Master Honohan, 20th January, 2006.

plaintiff is himself in a position to give his evidence on these matters. If

he was trained, he knows it. If he wasn’t, he knows that too.”80

(e.) Pre-accident medical records:

In McGrory v Electricity Supply Board,81 the Supreme Court provided that

a plaintiff who sues for personal injury “waives the right of privacy”82 and

that the defendant must “have access to any relevant medical records.”83

The Master follows these dicta quite closely but the following comment is

made by Jennifer O’Connell BL in a recent lecture:

“…applicants should limit their request to pre-accident medical records of

injuries and complaints pleaded in the particulars of personal injury as

details of a Plaintiff’s dental history are unlikely to be relevant in a claim

for a severed thumb.”84

(f.) ‘Helena Byrne’ orders

Helena Byrne v Eastern Regional Health Authority85concerned an

application for discovery brought by a nurse in proceedings against her

employers in which she claimed that she had been assaulted by a

psychiatric patient in their hospital. Discovery was sought of several

categories of documents in order to demonstrate that the Defendant

knew that the particular patient was likely to commit an assault but did

not implement a proper system to prevent her from doing so. The Master

accepted the contention that it was necessary for the Plaintiff to prove

that the Defendant failed to properly assess the risks posed by the patient

and put in place a proper system of safety:

“ … medical records and the behavioural history of the patient will feature

as data enabling the experts to assess the risks to staff posed by the 80 ibid., at p. 5 81 [2003] 3 I.R. 407. 82 ibid. 83 ibid. 84 “The Discovery Process”, Jennifer O’Connell BL, Lecture to CLT. 85 Unreported, Master Honohan, 27th April, 2004.

patient, against which the Judge will rate the safety of the system of work

as either adequate, in law, or deficient …”86

On foot of this, the Master ordered discovery of the following category:

“any current risk assessment in respect of [the patient], or in the

absence of same, documents containing such references to history,

assessment, treatment and medication of [the patient] as would form part

of such risk assessment.”87

It is now become the norm for the Master to grant discovery in these

terms in all cases where a medical attendant brings proceedings against

her employers claiming damages for an assault committed by a patient in

their care. An order in these terms is commonly referred to as a ‘Helena

Byrne’ order and an applicant will usually be required to demonstrate

some special circumstances to justify the grant of discovery in wider

terms.

Andrew Fitzpatrick BL

7th March, 2007.

86 ibid., at p. 1. 87 ibid.