About this case:

• Citation:
  [2024] IEHC 62
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons determined that an “incremental approach to discovery will ensure that the privacy of the non-parties is protected insofar as possible as is consistent with allowing the plaintiff to prosecute his claim effectively”.

Background

The plaintiff was placed in foster care as a child, with the first to fourth defendants being his foster family. The plaintiff alleged that certain of the defendants perpetrated assaults, battery and inflicted emotional suffering upon him.

The fifth and sixth defendant statutory bodies, the Health Service Executive and the Child and Family Agency, were sued inter alia for their failure to ensure that the third and fourth defendants were fit to be foster parents.

Having unsuccessfully sought the voluntary discovery on part of the statutory bodies, the plaintiff’s solicitors issued a motion returnable before the Deputy Master, to which the statutory bodies made no substantive response through correspondence or affidavit. The Deputy Master made an order on 28 February 2023 for discovery of three categories of documents:

The statutory bodies appealed to the High Court, on the basis that the order would have implications for non-parties who were in foster care around the same time as the plaintiff. Mr Justice Simons adjourned the case to give the statutory bodies time to file an affidavit and written submissions.

An affidavit was filed by a social worker of the Child and Family Agency, which stated that the discovery ordered encompassed confidential and extremely sensitive information in relation to a number of non-parties who had been under the care of the first to fourth defendants, and so should as limited as possible whilst still ensuring that the plaintiff could prosecute his claim. The first defendant, being the foster parents’ son, had been convicted of child sexual abuse against these non-parties while they were in foster care.

The deponent stated that the words “checks and enquiries made, or steps taken” in Category 1 had hugely expanded the documents which would be responsive, as whilst fostering is ongoing, there are constant checks and enquiries into the suitability of fostering arrangements, all of which are recorded. The deponent suggested that to limit discovery to documents evidencing “unsuitability” of the foster parents would vastly reduce the number of documents to be discovered.

The High Court

Mr Justice Simons considered that the first issue was whether the documents sought were relevant, a matter to be determined by reference to the pleadings. Noting that the gravamen of the plaintiff’s case as against the statutory bodies was that they failed to ensure the suitability of the defendant foster parents, the court explained that the statutory bodies had denied any breach of duty.

Considering that by virtue of the parties’ pleas, the documents sought were prima facie relevant to the issues in dispute between the parties, the court considered whether discovery was necessary.

Noting that “the categories, as formulated in the Deputy Master’s order, would require the discovery of highly sensitive personal information relating to the non-parties”, the court continued: “The fact that a document may be confidential is something which goes to the question of whether an order for discovery is necessary… the court should only order discovery in circumstances where it becomes clear that the interests of justice in bringing about a fair result of the proceedings require such an order to be made (Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 I.R. 211 (at paragraph 42)).”

Mr Justice Simons highlighted that a court would adopt appropriate measures to respect confidentiality “by ensuring that it only displaced when the production of confidential documentation proves truly necessary to the just resolution of proceedings”.

The judge quoted from Ryan v. Dengrove DAC [2022] IECA 155, in which the Court of Appeal stated that “a balance has to be struck between the likely materiality of any given document to the issues likely to arise in the proceedings and the degree of confidentiality attaching to it. A confidential document (and particularly one that is highly confidential) should not be directed to be discovered unless the court is satisfied that there is a real basis on which it is likely to be relevant at the hearing… Such an assessment necessarily requires the court to look beyond the threshold test of Peruvian Guano relevance. The ‘nature and potential strength of the relevance’, and the degree to which the document is likely to advance the case of the requester, or damage the case of the requested party, are appropriate considerations in this context.”

Mr Justice Simons considered an “incremental approach” to discovery would be appropriate, confined in the first instance, to documents contained in the social work file held by the statutory bodies in respect of the plaintiff personally, and secondly, in relation to the foster parents.

Conclusion

Accordingly, the court discharged the order of the Deputy Master and directed the statutory bodies to discovery two categories of documents, the wording to be agreed between the parties, with liberty to the plaintiff to apply for further and better discovery if necessary once the discovery made had been reviewed.

The court also awarded the costs of and incidental to the discovery application to the plaintiff, including the costs before the Deputy Master and the High Court, to reflect the failure of the statutory bodies to engage with the plaintiff’s request for voluntary discovery and the subsequent motion.

Dilger v. Burke & Ors [2024] IEHC 62