Ronan Hynes

The High Court has reminded litigants in the case of Dilger v HSE, Child & Family Agency Tusla & Others [2024] IEHC 62 that the discovery of confidential documents is a careful balancing exercise. A 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 an order for discovery to be made.

Background

Judgment was delivered against a background of an application for discovery of documents. The matter had come before the High Court by way of an appeal of an order of the Deputy Master.

The underlying proceedings arose out of events alleged to have occurred when the plaintiff was a child in foster care. It was alleged by the plaintiff that certain members of the foster care family perpetrated acts of assault and battery and inflicted emotional suffering upon him.

The plaintiff’s solicitors had sought the agreement of the statutory bodies involved in the litigation to make discovery on a voluntary basis in accordance with Order 31 of the Rules of the Superior Courts. Neither statutory body made a substantive response to the discovery request and a notice of motion seeking discovery came before the Deputy Master, who made an order for discovery on 28 February 2023.

The Deputy Master’s order for discovery was appealed and went to hearing before Mr Justice Simons on 4 December 2023. No substantive response by way of affidavit or correspondence was lodged in advance of the appeal hearing. However, counsel for the statutory bodies indicated that their clients had a concern as to the adverse implications which the making of the discovery in the terms granted by the Deputy Master would have for certain non-parties.

Mr Justice Simons took the unusual step of adjourning the hearing to allow the statutory bodies an opportunity to file affidavit evidence and written submissions in relation to their concern. An affidavit was sworn and subsequently filed on behalf of the Child Family Agency, Tusla. The matter was relisted on 22 January 2024 and judgment was reserved and delivered electronically on 19 February 2024.

The judgment

Mr Justice Simons was satisfied that the documents subject to the order for discovery of the Deputy Master were both relevant and necessary to the issues in dispute between the parties as identified by the pleadings.

The judge held that the fact that a document may be confidential is something that goes to the question of whether an order for discovery is necessary. He found that where an application for an order for discovery is made in respect of confidential documentation, 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 requires such an order to be made [Tobin v Ministry for Defence [2019] RECS 57, [2020] 1 IR 211 applied].

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

Mr Justice Simons relied on the Court of Appeal decisions in Ryan v Dengrove DAC [2022] IECA 155 and in A.B. v The Children’s Health Ireland (CHI) at Crumlin [2022] IECA, which had both recently considered an application for discovery of confidential documents. Judge Simons cited paragraph 67 (7) of the judgment in Ryan v Dengrove DAC which held that: “a balance has to be struck between the likely materiality of any given document to issues likely to arise in the proceedings and the degree of confidentiality attaching to it.”

Applying the above principles to the present case, Mr Justice Simons favoured an incremental approach to discovery. Judge Simons ordered discovery to be confined, in the first instance, to two categories of documents. In respect of each category, the contents could be redacted to exclude any reference to third parties.

Mr Justice Simons indicated that the affidavit of discovery should explain, in general terms, the nature of the information, if any, which has to be redacted. This incremental approach to discovery would ensure that the privacy of the non-parties was protected in so far as reasonably possible whilst also allowing the plaintiff to prosecute his claim effectively.

In essence, the order of the Deputy Master was discharged, and the statutory bodies were directed to make discovery of two categories of documents with the plaintiff having liberty to apply for further and better discovery, if necessary, once the documents discovered had been reviewed.

The parties were directed to correspond with each other with a view to agreeing an appropriate form of wording which accurately described the two categories of discovery granted. An agreed form of wording was ordered to be submitted to the registrar within four weeks and, in the event of disagreement, the parties should arrange to have the motion relisted before him.

Costs were awarded in favour of the plaintiff before both the Deputy Master and the High Court subject to a stay until the conclusion of the proceedings. It was noted by the court that the costs order was intended to reflect the fact that the failure of the statutory bodies to engage with the request for discovery and the subsequent motion caused the plaintiff’s side to incur costs unnecessarily. It was also acknowledged by Judge Simons that the statutory bodies, to their credit, ultimately adopted a constructive approach to discovery in the end.

Conclusion

The discovery of confidential documents involves a careful balancing act exercise. A court will 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.

A court can adopt appropriate measures to respect the importance of confidentiality by ensuring that it is only displaced when the production of confidential documentation proves truly necessary to the just resolution of proceedings. In certain circumstances, an incremental approach to discovery is appropriate to ensure the privacy of non-parties is protected whilst simultaneously allowing the plaintiff to prosecute his or her case effectively.

• Ronan Hynes is a partner in the litigation and dispute resolution department of MHP Sellors LLP.