High Court of Ireland Decisions

THE HIGH COURT

RECORD NO. 11566P 1998

BETWEEN

DARRISH HOGAN

PLAINTIFF

AND

EUNAN McATEER AND THE MID WESTERN HEALTH BOARD

DEFENDANT

Decision of the Master 28th June 2002

1.      This is an application by the Plaintiff for Discovery of documents by the Defendant in respect of the Plaintiff’s claim for damages for injury arising out of a work related accident at Lourdes House Unit Sean Ross Abbey Roscrea on 28th June 1996. The Plaintiff alleges an assault by a patient in the Unit and a fracture of the right 5th metacarpal. The Plaintiff had an enchondroma tumour on or near this bone which predated the accident. This complicated her recovery from the fracture. The tumour was surgically removed on 5th December 1997.

2.      By letter of 30th May, 2001 the Plaintiff’s Solicitors sought voluntary discovery of fifteen categories of documents, offering the following as a basis for the request:

“The documents are necessary for a fair disposal of the action”. Two further paragraphs in the same letter can be summarised as “the expert needs (a) to (k) to provide a full report” and “(a) to (k) are also required to show the Defendant’s state of knowledge at the material time.” (The fifteenth category sought was “any other documents which are relevant”!)

3.      This letter was followed by a further, dated 28th January, 2002, now listing seventeen categories (inclusive of the fifteen earlier sought) and specifying

“REASONS FOR SEEKING THE ORDER FOR DISCOVERY:

(a) The said documentation is readily available from the Defendants and the said documents are within the power possession or procurement of the Defendants;

(b) The discovery, inspection and production of the said documentation and information contained therein will shorten the length of the case at hearing;

(c) The information is relevant to the within proceedings because it refers to the Plaintiff’s place of work, work conditions, contact with patients and the background to the patient who assaulted the Plaintiff;

(d) Discovery of the said documentation has been recommended by the Plaintiff’s technical and legal advisers;

(e) Discovery of the said documentation is necessary for the fair disposal of the within case;

(f) The Plaintiff cannot source the said documentation without an Order for Discovery;

(g) The Defendants have failed, refused and neglected to comply with a reasonable request to make voluntary Discovery on Oath;

(h) There is a full Defence to the action and all matters are in issue.”

4.      The same set of reasons is set out in the Notice of Motion but not in the affidavit grounding this application. These reasons are offered as of general applicability rather than specific to any one of the categories of documents sought. Instead of deposing as required by O.31 r 12(1)(a) and (b) in the grounding affidavit, the Plaintiff’s solicitor deposes to being “informed by Counsel that it is essential that the Defendants ... discover the documents sought.”

5.      The amendments to O.31 rule 12 effected by S.I. 233 of 1999 impose a requirement on parties seeking an Order of Discovery that the Applicant

“shall have previously applied by letter in writing requesting that discovery be made 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.”

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”) .

6.      In due course the Court will, after perusal of the pleadings, determine whether the particular disputed fact is or is not a material fact in the cause of action pleaded. Facts are often alleged (and, with due caution, denied) which, on close examination of the legal basis of the case, can be seen to be surplus -facts which the party does not need to prove in order to succeed. There is no advantage to be gained by asserting that Counsel, Solicitor, Expert, Client or any other person is of the view that the particular fact (proof of which is the object of the discovery application) is “relevant”: that is a matter of pure law.

7.      Necessity, however, is a matter of fact. There is something, but not much, to be gained by asserting that someone is of the view that access to the documents is necessary. The rule allows some latitude on this. By requiring sworn verification of necessity (“for disposing fairly of the cause or matter or for saving costs”) the rule places a significant obligation on the deponent to check his facts before swearing. It would be preferable to see on affidavit the circumstances known to the deponent upon which he has judged his conclusion as to necessity - in the absence of such evidence the Court may come to a different conclusion if an alternative source of evidence is clearly identifiable from the papers before the Court. In particular, the evidential limitations of documents, as such, to prove the contents thereof must be borne in mind: the rules of evidence still play an integral role in the principles governing Discovery applications. Documents are rarely in themselves probative of anything though accessing a document may point a party in the direction of where the hard evidence may be found.

8.      The Plaintiff’s application for discovery in this case is, of course, refused.

9.      The reasons advanced are noteworthy in that each and everyone is non specific to this case - the solicitor has adopted a formulaic approach which, with minor modifications, could be reused in any case. To accept these reasons as satisfying the requirements of Order 31 would be to deprive S.I. 233 of all practical effect -formulaic specifications of reasons cannot be allowed to circumvent the intent of the Rules Committee.