Discovery in the Master’s Court: Paper by Andrew Fitzpatrick 21st … · 1 Discovery in the...

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Discovery in the Master’s Court: Summary of the written decisions of the Master

Paper by Andrew Fitzpatrick1 21st March 2011

I Introduction

1. 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 exceptions2 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.

2. 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,3 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 recent years and since 2001, a large number of written decisions have been handed down by the Master of the High Court4, which provide practitioners with guidance as to what specific categories of documents will

ordinarily be considered to be discoverable. The full texts of these decisions are now available online at www.courts.ie under the link “Master of the High Court: Rulings”. It should also be noted that the Master recently made available a list of

precedents with which practitioners ought to be familiar when moving

1 This paper was finalised by Andrew Fitzpatrick BL on the 7

th March, 2007, was updated by Jennifer

Goode BL on the 18th May, 2009 and on the 18th

March, 2011. 2 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. 3 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, P.J. Carroll & Co Ltd v Minister for Health [2006] IESC 36;

unreported, Supreme Court, June 1, 2006, Duhan v. RTE [2008] 1 IR 506, Dome Telecom v. Eircom Ltd.

[2008] 2 IR 726. 4 Edmund Honohan S.C.

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applications for discovery in the Master’s Court5, many of which are covered in this paper.

3. This paper will examine some of these decisions and attempt to set out some basic principles which can be applied to most applications for discovery that are brought in the Master’s Court (II). Specific categories of documents that are

frequently sought in applications for discovery will be examined (III), as will the criteria which are usually applied when deciding whether same ought to be discovered. Finally, the issue of non-party discovery, which was considered

relatively recently by the Master in Corscadden v. BJN Construction Ltd will be examined (IV).

II Basic principles

(a) “Documents relating to a primary issue or allegation” in the context of “relevance” and “alternative means of proof” in the context of “necessity”

4. Order 31 r. 12 (1) RSC 1986 provides that “[A]ny 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 possession, power or procurement relating to any matter in question therein [emphasis added]”.This rule has been interpreted to mean that only “relevant” documents will be discovered.

5. Order 31 r.12 (5) RSC 1986 provides that an order for discovery shall not be made unless the Court is of the opinion that it is “necessary either for disposing fairly of the cause or matter or for saving costs”. Thus, in addition to being “relevant”, documents must also be “necessary” in order to be discoverable.

6. The starting point in any consideration of the decisions of the Master in relation

to discovery is Pierce v. Aghadoe Developments Limited and Ballygowan Limited.6 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.

5 The said list contained the following cases: Cromane Seafoods v. The Minister for Agriculture

(Unreported, Master Honohan, 7th July, 2010); Caffrey v, Barton (Unreported, Master Honohan, 18th

March, 2010), Schuurmans v. Van Ginneken (Unreported, Master Honohan,12th March, 2008); O’Neill

v. An Taoiseach (Unreported, Master Honohan,7th May, 2008); Abdullah v. North Eastern Health

Board (Unreported, Master Honohan, 22nd February, 2008); Corscadden v. BJN Construction

(Unreported, Master Honohan, 9th February, 2007); Keane v. Aer Rianta (Unreported, Master

Honohan, 27th April, 2007); Russell v. Danann Clean Air Systems (Unreported, Master Honohan, 19th

January, 2007); Henderson v. AEI Inc. (Unreported, Master Honohan,12th May, 2005); Kelly v. Lever

Faberge (Unreported, Master Honohan, 12th May, 2005); Price v. Governor of Mountjoy (Unreported,

Master Honohan, 20th October, 2005); S.D. v. B.D. (Unreported, Master Honohan, 19th October,

2005); A.K. v. D.K. (Unreported, Master Honohan,27th July, 2005); Farnon v. Dunnes Stores Dundalk

Limited (Unreported, Master Honohan, 23rd June, 2005); P.J. Walls (Civil) Limited v. Aer Rianta C.P.T.

(Unreported, Master Honohan,26th January, 2005); Foley v. County Waterford Vocational Education

Committee (Unreported, Master Honohan, 6th October, 2005). 6 Unreported, Master Honohan, 29

th January, 2002.

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7. There, the plaintiff claimed damages for personal injuries which had been caused when a glass bottle containing carbonated water fell and shattered on a tiled floor, thereby sending a glass splinter into his eye.

8. An application for discovery was brought seeking discovery of categories of

documents concerning “research, quality control and other accidents involving such glass bottles for a pre-accident period of five years”. 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, namely, that the defendants knew that such bottles could explode when dropped on a hard surface.

9. Thus, 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. 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 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.”7

10. 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 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.”8

11. The first principle 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.

7 ibid., at p.2.

8 ibid.

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12. The second principle set out in this decision 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 principle 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:-

“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.”9

13. 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.

14. The Master gave a further indication of exactly what was meant by “primary issue or allegation” and “alternative means of proof” in his decision in Hogan v McAteer and Mid Western Health Board10 where he linked those principles to the “relevance” and “necessity” requirements provided for in O.31 r.12 RSC 1986:-

“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’)”.11

(b) Application of the principles to letters seeking voluntary discovery and

affidavits grounding applications for discovery 15. Order 31 r.12 (4)(1)(a) RSC 1986 provides, inter alia, that an order directing a

party to make discovery shall not be made unless the applicant “shall have previously applied by letter in writing requesting that discovery be made

9 ibid., at p.2.

10 Unreported, Master Honohan, 28

th June, 2002.

11 ibid., at p. 2. See also comments at pp. 3-4 in Farnon v Dunnes Stores Dundalk Limited, (unreported,

Master Honohan, 23rd

June, 2005).

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voluntarily, specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered”.

16. Order 31 r.12(1)(a) RSC 1986 provides, inter alia, that an application for

discovery shall be grounded upon the affidavit of the party seeking the order for

discovery and shall (a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs and (b) furnish the reasons why each category of documents is required to be

discovered.

17. The principles of “relevance” and “necessity” and, consequently, the concepts of the “primary allegation” and “alternative means of proof” should form the basis of a letter seeking voluntary discovery and the notice of motion and grounding

affidavit for any subsequent application for discovery in the Master’s Court.

18. The letter seeking voluntary discovery should set out in detail the reasons for which discovery of each category is sought and should seek to address the requirements identified above. The wording of these reasons should be reproduced in full in any subsequent grounding affidavit and the Master stated in

Russell v. Danan Clean Air Systems12 relation to O.31r.1(a): “for ‘reasons’, read ‘relevance’ plus ‘need’ ”.13 The Master continued at p.6:-

“The reason for discovery for each category should be separately stated and each such reason should specify the fact(s) (category specific facts) concerning which the documents being sought may assist in sourcing evidence. Without this identification of facts, the court cannot assess materiality and relevance. Regarding ‘need’, if an applicant wants discovery, he’s got to make a case for it. That doesn’t mean just a bare statement on oath that you need discovery. You must state why you need discovery. (If an applicant doesn’t know why he needs discovery, he doesn’t need it, and he shouldn’t apply for it).”

19. Importantly the Master also stated that the denial by a party of a particular fact

did not necessarily mean that discovery was “needed” and, further, stating that discovery was necessary because it was “relevant to” a particular fact was not enough either.

20. The potential consequences for an application grounded upon a deficient affidavit were also noted at p.5 of Russell v. Danan Clean Air Systems14 where the Master stated:-

“Technically, an affidavit which is not in compliance with O.31 r.1(a) should result in the application being dismissed with costs.”

12

Ibid., p.5 13

Russell v Danann Clean Air Systems Limited, (Unreported, Master Honohan, 19th

January, 2007), p.

5. 14

Ibid., p.5

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21. However, the Master may choose to overlook such compliance “if the ‘reasons’ are to be found in the letter seeking voluntary discovery, and the respondent is not prejudiced by their not being restated on oath”.

22. 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,15 the Master held at p.8:-

“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).Documents are only ‘patently discoverable’ if the evidential deficit causing the need for discovery is itself self-evident.”16

23. 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. That the plaintiff was knocked unconscious or cannot recall the accident, for example. That witnesses have died. That papers have been destroyed (wage slips/employment contract).Particulars are a 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.”17

(c) Primary and secondary issues or allegations

24. As noted above, the Master has held that documents are only discoverable if the

issue in relation to which they were sought is 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 documents relate to a “secondary issue or allegation”

one which, even if fully proven, would not be enough to enable the plaintiff to win the case on liability, discovery of those documents will not be ordered.

25. Documents which relate to the state of a defendant’s knowledge are frequently sought in applications for discovery, most usually in personal injury cases. In most situations, the documents in question are sought to attempt to demonstrate

15

Ibid. 16

ibid., p. 8. 17

ibid., p. 9. See also Hardiman v Eastern Regional Health Authority, (Unreported, Master Honohan,

17th

October, 2003).

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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.

26. In Pierce v Aghadoe Developments Limited,18 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, not a primary, issue. This was so 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 by pleading that he did not know it

was dangerous.

27. He expanded this view to cover non-personal injury cases in Quigley v Dun Laoighare Rathdown County Council19 where the plaintiffs sought compensation for damage caused to their property by structural works carried

out by the defendant’s engineering works. Discovery was sought of certain documents to assist in demonstrating that the defendant knew or ought to have known that its works might pose a risk to neighbouring properties.

28. 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”,20 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.”21

29. 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:-

18

Unreported, Master Honohan, 29th

January, 2002. 19

Unreported, Master Honohan, 3rd

May, 2002. 20

ibid., at p. 1. 21

ibid., at pp. 1 and 2.

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“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 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.”22

30. 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.23

31. 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,24 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”.

32. 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”,25 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.

22

ibid., at p. 2. 23

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.”

24


April, 2003. 25

ibid., at p. 1.

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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.”26

33. 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”27 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.”28

34. 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:-

“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.”29

35. 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.

36. 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,30 he held that documents relating to previous inspections of the locus carried out by the defendant were not discoverable because:-

26

ibid., at p. 2. 27

ibid., at p. 3 28

ibid. 29

ibid. See also Central Parking System (Ireland) Limited v Dublin City Council (Unreported, Master

Honohan, 6th

October, 2005.) 30


February, 2004.

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“…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.”31

37. Similarly, in Kelly v Van den Bergh Foods Limited and Unilever (Ireland)

Limited,32 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.”33

38. Further, in Byrne v Eastern Regional Health Authority,34 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,35 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.

39. As regards product liability cases the Master will only order discovery of documents which relate to the defect in the product and the causal link between the defect and the damage caused to the plaintiff36. This is so since the effect of ss. 2 and 4 of the Liability for Defective Products Act 1991 is that a “producer” is liable in tort for damage caused by the defect in his product and will be held so

liable if the plaintiff can prove “the damage, the defect and the causal relationship between the defect and the damage”. The only material facts in such a case are the damage, the defect and causation and since a plaintiff can prove

his or her own damage, the court need only concern itself with documents relating to the alleged defect and causation.

40. Since a plaintiff is not required to establish negligence on the part of a producer in order to succeed under the Act of 1991, and since a common law claim for product liability would also require proof of the three material facts above in addition to other proofs, discovery of documents to establish negligence is not “necessary” and will not be ordered. The Master has identified one possible exception to this general prohibition: where a defendant invokes the defence at s.6(e) of the Act of 1991 and pleads that the state of knowledge at the time of the accident gave no grounds to suspect a defect or danger.

41. In summary on this point,37 practitioners who seek discovery of documents

should first ask themselves whether the factual allegation which they wish to

31

ibid., at p. 4. 32


January, 2003. 33

ibid., at p. 4. 34


April, 2004. 35


May, 2002. 36

See Kelly v. Lever Faberge Ireland Limited & Ors (Unreported, Master Honohan, 12th May, 2005)

and Henderson v. AEI Inc and House v, AEI Inc. (Unreported, Master Honohan, 12th May, 2005). 37

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).

11

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.

(d) Evidential deficit and alternative means of proof

42. 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”38 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:39

“The verification required of applicants should not be just an empty formula. Unless the particular circumstances as to available evidence, experts’ requirements and so 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.”40

43. Similarly, in Kelly v Mona (Ireland) Limited,41 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?”42

44. In Keane v. Aer Rianta43, having reviewed rulings of the High and Supreme

Courts regarding the concept of “necessity” in discovery applications, the Master again emphasised that discovery will not be ordered unless the applicant has some form of evidential deficit which has been attested to in the grounding

affidavit:- “For future reference, practitioners should please take note that the facts needed to be sworn do not include the applying party’s allegations. For the purpose of discovery, it is presupposed that the applicant’s pleaded allegations are true. The need for discovery derives from some evidential deficit or other

38

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. 39


June, 2005. 40

ibid., at p. 3. 41

Unreported, Master Honohan, 21st

October, 2003. 42

ibid. 43

Unreported, Maser Honohan, 27th

April, 2007.

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circumstance which create a difficulty for him in proving his allegation or some other litigious advantage or disadvantage: it is these circumstances which must be attested to.”

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

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

46. Expert evidence. The interaction between expert evidence and discovery was

first considered in detail by the Master in his decision in Clarke v Drogheda Corporation,44 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.

47. 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 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.”45

48. 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?”46 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.

49. A similar approach was adopted in Forde v. Dublin Bus47 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.

44


January, 2003. 45

ibid., at p. 2. 46

ibid., at p. 5 47


March, 2003.

13

50. 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 than 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 plaintiff is likely to instruct an expert witness anyhow, discovery sought is not necessary.”48

51. 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.

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

he has briefed advises 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 Board49 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.”50

53. 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.”51

54. A similar decision was given in A.K. v P.K.,52 which concerned an application for

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

48

ibid., at p. 6. 49


April, 2005. 50

ibid., at p. 3. 51

ibid., at pp. 3 and 4. 52


July, 2005.

14

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.”53

55. Most recently, in Caffrey v. Borton & Ors.54 the Master held that discovery was not necessary to establish the provenance of an MRSA infection when the expert had already formed his view on the matter.

56. The plaintiff alleged that he had contracted MRSA when he underwent surgery in the second defendant’s hospital, performed by the first defendant. It appeared that another patient may have contracted MRSA during an operation at the same hospital three months earlier, also performed by the first defendant.

57. The plaintiff sought what the Master characterised as “general discovery from both defendants” and, in his third affidavit, exhibited a letter from a Microbiologist and Head of Infection Control at Guy’s Hospital, London” which

was described by the deponent as “verifying the reasons why the categories…are relevant and necessary”. The Master mused that the expert witness was keen to prove that the plaintiff contracted MRSA during his operation and, on the balance

of probability, that he contracted it from someone in the treating medical team who was present at the operation on the other patient three months earlier and continued:-

“But the expert has apparently already formed his view. He states “since there is no other likely explanation for his MRSA acquisition, it is possible that the infection came from a member of the surgical team”. Surely he must be “probable” if there is “no other likely explanation”? If so, on the rationale of the P.J. Carroll judgment cited above, there is no need for discovery. To employ the expert’s own reasoning on page three of the letter, nothing “supports the likelihood that the source was a staff member” more than that “there is no other likely explanation”. They are surely two sides of the same coin. For good measure, he adds, on page three, that “on the evidence so far available to me I think it likely that the source of Mr. Caffrey’s infection was a surgical team member…”

53

ibid., at pp. 2-3. 54

Unreported, Master Honohan, 18th March, 2010.

15

58. Eye-witnesses. 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,55 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.”56

59. Similarly, in Doyle v Matassa,57 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:-

“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.”58

60. 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,59 where a soldier was assaulted by another soldier in his barracks, the Master stated that a report into the incident which was compiled

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…”60

(e) Discovery applications and proportionality

61. A useful summary of the approach taken in the Master’s Court when hearing discovery applications can be found in this decision Dowling v Dunnes Stores61, which case also dealt with proportionality of discovery applications. Here, the court applied a test based not only 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.

62. Dowling v Dunnes Stores 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

55


April, 2003. 56

ibid. 57


December, 2004. 58

ibid., at p. 3. 59


March, 2003. 60

ibid., at p. 5. 61


January, 2006. The Master has recently confirmed in

Schuurmans v. Van Ginneken B.V. (Unreported, Master Honohan, 12th March, 2008) (see below) that

his decision in Dowling v. Dunnes Stores sets out the methodology used in his court to process

discovery applications.

16

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 ordered in connection with only those facts which are legal ingredients of the pleaded claim: the material facts.”62

63. 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).”63

64. 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)…”64

65. Expressing his view that the allegations that the defendant 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?”65

66. 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.’”66

67. Arguing that the need for discovery must be “assessed by reference to whether ‘logically probative’ evidence is needed to prove the material facts”,67 the Master cited the English case of O.Co. v M.Co.68 where Colman J. held that “the excessively wide application of Lord Justice Brett’s formulation…has probably

62

ibid., at p. 2. 63

ibid., at p. 4. 64

ibid. 65

ibid., at p. 5. 66

ibid., at p. 6. 67

ibid. 68

[1996] 2 Lloyds Rep. 347.

17

contributed more to the increase of the costs of English…litigation in recent years than any factor…”69

68. Agreeing that no party to should be required to “turn out the contents of their filing system”70, the Master cited71 the dicta of Murray C.J. in Framus Limited and others v CRH plc:-72

“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…”

69. The decision in Dowling v Dunnes Stores was important for two reasons. First, 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, 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.

70. Second, the decision expressly endorsed the “proportionality” test which had been applied in Framus. While it was unclear as to how the test would be applied in practice, it became clear that in the future, such a concept would be considered in the Master’s Court73.

71. The issue of “proportionality” of discovery requests was further considered in

Keane v. Aer Rianta74 where the Master acknowledged that practitioners faced a practical dilemma, when presented with discovery requests which were clearly disproportionate. The Master observed that the Court may decide to re-word the

category sought and confine it to those documents most likely to prove the relevant fact, or the Court may dismiss the application, with costs. Noting that it was a matter for the discretion of the court whether it would “patch up a defective application” and that the court could make a costs order which reflected the poor state of the paperwork, the Master continued at pp. 9 and 10:-

“Yet after Framus, it is not a discretion which should be exercised lightly. Fairly obviously, the applicant should not be assisted by the court beyond the point of prejudice to the respondent. This presumably means that the reworded

69


January, 2006, at p. 7. 70

ibid. 71


January, 2006, at p. 7. 72

ibid. 73

Many questions remain as to how the issue of proportionality would be applied in practice. In

particular, it is uncertain how the issue would be raised and whether a defendant would have to

detail the potential number of documents he may be required to discovery 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. However, it should be noted that

the issue of proportionality has recently been considered by the Supreme Court in Dome Telecom Ltd

v. Eircom Ltd [2008] 2 IR 726 , where Kearns J. held that the assessment of what was necessary or

proportionate, in terms of discovery, had to take account of any factual admissions or concessions

made by either or both parties, particularly where liability was totally in dispute and where that issue

could conveniently be first determined as a result of admissions or concessions made (at p.771). 74


April, 2007.

18

category should in all cases be a subset of a category sought and not an entirely new category. And it seems also obvious that the up-dated version of general discovery (“all documents related to facts A,B and C”) should never be the subject of a complete judicial re-write. If the lawyers cannot produce even a workable draft, they should be told to start again”75.

72. The issue of an application for large scale discovery was also at the heart of Schuurmans v. Van Ginneken B.V.76. There, the plaintiff sued the defendants for losses caused to it when it mixed contaminated glucose solution to its stock of

molasses to produce a pig feed which it then supplied to third parties. The plaintiff alleged that the contaminant came from the first defendant’s factory.

The Master conducted a detailed analysis of the primary and secondary facts in the case and then analysed the “need” and “real need” distinction in discovery applications before reaffirming the approach which would be taken in his court in

discovery applications:-

“The methodology used by this Court to process discovery applications is set out fully in Dowling v. Dunnes Stores [2006] IEHC 4. Using this method, the list of facts concerning which discovery may be ordered is whittled down, and all of this takes place even before the grounding affidavit (as to “necessity”) is opened. Deponents should not bother to rehearse the pleadings. Affidavits are not the place, either, to make submissions on the law. Instead, the affidavit should, referring in turn to each category sought, identify the fact or facts of which the documents may be (indirectly) probative, and outline the applicant’s evidential deficit which is the basis of the “need” asserted.”

73. The Master then considered the plaintiff’s application for thirty three categories of

discovery before stating “In the absence of a clear case on affidavit as to which allegations the plaintiff will experience difficulty in proving, the Court must attempt to judge which documents the [plaintiff] ‘really needs’ to bring home his case.” The Master then granted discovery in narrower terms than was sought

stating

“I have done the best I can for the plaintiff in the attached order. I am of the view that the plaintiff does not need any documents over and above what I have ordered. I am also of the view that the order is fair to the defendant, and is proportionate to the case.”

III Discoverability of specific documents

74. 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

75

See also Cromane Seafoods Limited v. Minister for Agriculture (Unreported, Master Honohan, 7th

July, 2010) relating to onerous discovery applications made against state bodies. 76

Unreported, Master Honohan, 12th March, 2008.

19

75. 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,77 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.”78

76. 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:79

“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. The contents of same if one exists is not probative of the defendant’s state of knowledge of the existence of a risk, if the risk is referred to therein, the defendant’s state of knowledge is hardly ever a material fact in such a case.””80

(b) Accident Report Form 77. 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,81 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 Stores82 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.”83

(c) Cleaning Schedules and system

78. 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

77


January, 2003. 78

ibid., at p. 3. 79


February, 2004. 80

ibid. See also Kelly v Mona (Ireland) Limited, (Unreported, Master Honohan, 21st

October, 2003). 81


March, 2003. 82


January, 2006. 83

Ibid. at p. 15

20

accident was all that could be reasonably expected of him in the circumstances. This approach can be seen from Doyle v Matassa:84

“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.”85

(d) Training records:

79. 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,86 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.”87

80. 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:88

“…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 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.”89

(e) Pre-accident medical records:

84


December, 2004. 85

ibid. 86


June, 2005. 87

ibid., at p. 7. 88


January, 2006. 89

ibid., at p. 5

21

81. In McGrory v Electricity Supply Board,90 the Supreme Court provided that a plaintiff who sues for personal injury “waives the right of privacy”91 and that the defendant must “have access to any relevant medical records.”92 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.”93 (f) Patients’ files

82. In Mostafa Abdullah v. North Eastern Health Board94 the plaintiff was

suturing an episiotomy when he accidentally stuck the needle into his own finger. Sometime later, he claimed that the “was made aware” that the patient was HIV positive and instituted proceedings against the defendants. The Master refused to

order discovery of the file since there was “no real dispute that the patient was HIV positive and consequently, no need for discovery of her files” but noted that, in general:-

“Before a patient’s file is ordered to be discovered, there is a particular onus on an applicant to satisfy the Court that the file is needed, and the need must be critical if a patient’s rights to confidentiality are to be breached.”

83. In the same case the Master considered the discoverability of in-house documents and the use of discovery to prove that a document does not exist. In relation to the latter issue the Master held:-

“The third and fourth categories of documents which the plaintiff seeks are both so-called ‘protocols’, neither of which (the solicitor avers) existed at the material time. To be precise, they were “not in place”. It seems therefore, that the plaintiff is seeking discovery to prove a negative. I am always reluctant to order discovery for the purposes of drawing a blank”.

84. In relation to the former issue, the Master considered the view that an in-house policy document, such as the “protocol” in this case should be the yardstick by which actual care would be assessed and that it ought to be discovered for that reason. The Master quoted extensively from the Supreme Court judgment in

Brooks Thomas Ltd. v. Impac Ltd. [1999] 1 I.L.R.M. 171 and held, in essence, that compliance with the in-house standard was a secondary issue and discovery was not necessary.

(g) ‘Helena Byrne’ orders

90

[2003] 3 I.R. 407. 91

ibid. 92

ibid. 93

“The Discovery Process”, Jennifer O’Connell BL, Lecture to CLT. 94

Unreported, Master Honohan, 22nd

February, 2008.

22

85. Helena Byrne v Eastern Regional Health Authority95 concerned 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 patient, against which the Judge will rate the safety of the system of work as either adequate, in law, or deficient …”96

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.”97

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.

IV Non-party discovery 88. The decision of the Master in Corscadden v. BJN Construction Ltd98 dealt

with non-party discovery under O.31r.29 and in particular, whether a discovery order should be made where the non-party is a public body asserting public interest privilege.

89. There, discovery was sought by the second defendant against a non-party,

namely the Health and Safety Authority. The second defendant’s application was for “all documents in its power, possession or procurement (sic) relating to a fatal accident involving a Mr. Patrick O’Kane on the 24th July, 2000 at Kilnacourt, Portarlington, Co. Offaly”.

90. In support of the application, the applicant’s solicitor averred that the non-party

carried out an investigation after the accident and “a prosecution was mounted wherein a Brendan Mooney, who I understand to be the principal of the first Name Defendant, was fined €25,000”. It was further stated that discovery was necessary to help the second defendant “establish the system of work that was being operated by the first named defendant at the material time”.

95


April, 2004. 96

ibid., at p. 1. 97

ibid. 98


February, 2007.

23

91. At the outset, the Master considered the history of O.31, r,29. While

acknowledging that it may appear less restrictive than O.31,r.12, the Master

noted that the former rule was introduced 1986, when general discovery was still available. Thus, “in fact, it was intended to be considerably more restrictive than the general discovery available from parties in 1986 and until 1999.” 99

92. Consequently, the Master cautioned that all pre-1999 judgments on non-party

discovery had to be read in the above historical context: even the terminology

found therein had to be interpreted with caution and may need to be corrected if same were to continue to be employed as precedents.

93. The Master then noted that the requirements of relevance and necessity were

equally applicable to both party, and non-party discovery:-

“In short, if you need to demonstrate (as you now do) in an application for party discovery that the specific categories sought are not just relevant but also necessary (by reason of some evidential deficit on some perceived litigious disadvantage) you certainly, as a minimum, must demonstrate likewise in applications for non-party discovery. The 1986 rules do not say so, but post 1999 the new discovery rules apply, mutatis mutandis to O.31, r.29.”

94. After observing that “[i]ndeed, it appears from the case law that the test for non-party discovery may be even more strict” the Master went on to consider a series of decisions on non-party discovery before stating:-

“The theme which is common to all of these decisions is the public interest in not jeopardising the public’s confidence that their complaints and statements to public law enforcement bodies, if made confidentially (and for a specified purpose), will be kept confidential…That cannot be said of a process which releases the material (for another purpose) even if it is only after the body has finished with its use of it.”

95. The Master then noted that there was little to be gained in routinely ordering

non-party discovery against law enforcement agencies, where, at the end of the day, in most instances, the public interest privilege would be upheld over the documents. The Master then set out the following test for applications for non-party discovery against law enforcement agencies:-

“I propose to follow this logic and refuse applications for non-party discovery of the files of law enforcement agencies in all cases save where the evidence concerning the other (due process) public interest is weighty. How weighty? The importance of the integrity of the workings of the various law enforcement bodies is such that only with the very clearest and compelling evidence will an applicant’s evidential deficit be adjudged even more important.”

96. Applying that test to the facts of the present case, the Master held that the evidence adduced in support of the application was not “weighty”. In particular,

99

Ibid., p.2

24

there was no evidence that the applicant did not already have information on the system of work, that the information did not come into the public domain during the prosecution, that the information was not otherwise available to the applicant

from the defendant or the inquest file, or indeed, that the applicant really needed it “the plaintiff’s husband fell to his death when a plank on scaffolding gave way – res ipsa loquitur?”.100

100

Ibid. p.11.

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