The Court of Appeal has recently confirmed the general principles applicable to discovery applications and ‘discoverability’, and has further confirmed that in appropriate circumstances a defendant may obtain discovery of a plantiff’s post-accident records.
General Discovery Principles
Relevance
The longstanding test for relevance in discovery is that articulated by Brett L.J. in Peruvian Guano (1882) 11 QBD 55 namely documents which “It is reasonable to suppose contain information which may – not which must – either directly or indirectly enable the party…to advance his own case or to damage the case of his adversary”.
This is recognised as setting a low threshold. Collins J. in Ryan v. Dengrove DAC [2022] IECA 155 describes this as an “extravagant conception of relevance” and notes that notwithstanding the introduction of “necessity” as an express requirement in O.31, r.12 through amendment in 1999 (S.I. 233/1999) this has not had a significant impact on the burden or cost of discovery.
Whilst changes may be anticipated and indeed have been recommended in the 2020 Review of the Administration of Civil Justice Report (the Kelly report), cases must be decided by reference to the law as it currently stands.
Necessity
The courts have applied O.31, r.12 in a manner such that, although relevance and necessity are acknowledged to be discrete and cumulative requirements, once it has been established that documents are relevant to the issues in the litigation it is presumed that their discovery is also necessary. It was put thus by Collins J. in Ryan v. Dengrove DAC [2022] IECA 155 at para. 41 of his judgment:
“Necessity has, in this context, been given a rather attenuated meaning and is presumed to follow from the fact that a document or category of documents is relevant (though that presumption may be displaced).”
The fact that establishing relevance gives rise to a rebuttable presumption of necessity was recognised by Clarke C.J. in Tobin v. Minister for Defence [2020] 1 IR 211 as follows:
“While the initial burden of establishing both relevance and necessity must lie on the requesting party, it can, for the reasons which I have sought to analyse, be taken that the establishment of relevance will prima facie also establish necessity. Where it is sought to suggest that the discovery of documents whose relevance has been established is not necessary, the burden will lie on the requested party to put forward reasons as to why the test of necessity has not been met. Those reasons should initially be addressed in the response of the requested party to the letter seeking discovery. In the event of a court being required to adjudicate on such matters, then, to the extent that the reasons for suggesting that discovery of any particular category of document is not ‘necessary’ is dependent on facts, it is for the requested party to place evidence before the courts to establish the relevant facts. To the extent that the opposition to discovery may be based on legal argument, then it is for the requested party to put forward its reasons as to why production is not necessary.”
Proportionality
Given the vast volume of documents routinely created in the commercial and administrative spheres, the proportionality of an overly broad request for discovery is undoubtedly something that will require consideration in many cases. However, it is possible for a requesting party to address these concerns from the outset and to build limits into the requests which will enable a court to be satisfied that the request is proportionate. Those limits may restrict the subject matter of the documentation sought or the parties whose communications are sought or, as here, comprise a time limit so that a fixed outer point is placed on the obligation of the other party to search for relevant records.
The Court of Appeal (Ryan P.) summarised the relevant principles relating to discovery by reference to a significant body of case law in O’Brien v. Red Flag Consulting Limited [2017] IECA 258. Having identified necessity as a separate criterion to relevance, the court then set out the principles applicable to that criterion as follows:
“(8) The court should consider the necessity for the documents having regard to all the relevant circumstances, including the burden, scale and cost of the discovery sought. (9) 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 trial. (10) In certain circumstances, a too-wide ranging order for discovery may be an obstacle to the fair disposal of proceedings. (11) Discovery could become oppressive and the court should not allow it to be used as a tactic in war between parties.”
Post-Accident Records
In Egan v Castlerea Co-operative Livestock Mart [2023] IECA 240 the Court of Appeal considered the circumstances in which post-accident medical records would be discoverable. The judgment of the Court of Appeal was delivered by Butler J., with whom Binchy J. and Ni Raigeartaigh J. concurred.
General Prohibition on Post-Accident Records?
Having referenced Power v Tesco Ireland Limited [2016] IEHC 390, Micks-Wallace (a minor) v Dunne [2020] IECA 282, and McCorry v McCorry [2021] IEHC 104, Butler J. stated:
“I do not think that either Power v. Tesco or McCorry v. McCorry provides support for the proposition that discovery of post-accident medical records should, as a matter of general principle, be refused save in exceptional cases. Indeed, Simons J. in McCorry v McCorry appears to expressly reject this proposition and certainly does so insofar as it is purportedly based on Power v. Tesco. The observations of Barrett J. regarding the need for a medical examination of the plaintiff prior to a request for discovery of medical records and for the request to be based on the views of a medical expert, were clearly incorrect in light of the subsequent judgment of this court in Micks-Wallace (a minor). At their height, these cases go no further than establish the need that there be some evidential indicator that discovery of the plaintiff’s medical records is required for the purposes of the litigation before the court should order disclosure of what is otherwise confidential material. There is no sound distinction to be drawn between pre- and post-accident medical records based on the case law in this regard.” (emphasis added)
ESTABLISHING RELEVANCE
In the Egan case relevance was conceded by the plaintiff, and so the question was not examined in any great detail. There, the plaintiff had sustained an injury to his leg at the defendant’s premises in 2017. He had a history of back pain. Updated particulars of personal injury, delivered in 2022, suggested that the plaintiff had suffered a complex injury and that his ongoing complaints were due to a combination of his leg injury and his pre-existing back problem which may or may not have been re-activated by the accident itself. A consultant orthopaedic surgeon on behalf of the plaintiff had concluded “a dual pathology as the most likely source of the pain” and that each was contributing equally to the plaintiff’s lower leg pain.
The defendant sought five years pre-accident records and five months post-accident records. The reasons given were as follows:
- The discovery requested will allow the defendant to cross-reference the pleadings with the medical treatment and to examine to what extent, if any, there was an overlap of complaint from the previous medical history and the injuries allegedly suffered in the index accident;
- The availability of these medical records will allow a comprehensive independent medical examination of the plaintiff;
- The documents will establish the extent to which the plaintiff’s injuries and ongoing treatment as a result of the accident overlap with any pre-existing or subsequent injuries.
As noted above, the plaintiff conceded that the records were relevant, and so the judgment does not contain any detailed consideration of the question of relevance.
In Tobin v. Minister for Defence [2020] 1 IR 211 Clarke C.J. noted the important role that discovery can play in ensuring that a party does not present a case to court which is inconsistent with documents in their possession but withheld from the other side.
In Micks-Wallace (a minor) v Dunne [2020] IECA 282 Murray J. identified further possible points of relevance: assisting the parties in the proper ascertainment of the facts, in cross-examining opposing witnesses and in enabling them to fully and properly instruct expert witnesses as to the subject matter of their evidence.
Necessity
In the Egan case the plaintiff chose to argue that discovery of the post-accident medical records was not necessary, because:
- The reasons advanced in the letter seeking voluntary discovery were vague and general and did not provide a basis upon which the court could find that the discovery of post-accident medical records was necessary;
- The defendant will be provided with the medical reports to be relied on by the plaintiff in advance of the trial and will be entitled to cross examine the plaintiff’s medical witnesses. Further, the defendant is entitled to have the plaintiff independently medically examined;
- There are alternative procedural mechanisms available to the defendant which, if utilised, would make discovery unnecessary. In particular, the plaintiff suggested that the defendant could seek information as to the plaintiff’s pre-existing medical condition through the use of interrogatories.
The first argument (No. 1 above) was disposed of ‘fairly easily’ by the court on the basis that (a) the concession of relevance by the plaintiff raised a (rebuttable) presumption of necessity, and (b) the letter seeking voluntary discovery did establish a basis for the court to be satisfied that discovery was necessary.
The second and third arguments were examined in somewhat more detail by the Court of Appeal.
Pre-trial Disclosure & Medical Examination
Dealing with this argument, Butler J. stated:
“The fact that an issue may be the subject of expert evidence at trial does not, in my view, preclude the possibility that discovery of documents relevant to the issue may be properly sought in advance of the trial. The interaction between the plaintiff’s pre-existing medical condition and the injury sustained in the accident is now a significant issue in the litigation. The plaintiff has effectively conceded that his medical records are relevant to this issue and has consented to the discovery of five years of his pre-accident medical records. There is, in my view, no distinction in principle between pre- and post-accident medical records unless and until a point is reached where the records of the plaintiff’s medical treatment overlap with legally privileged – as opposed to merely confidential – medical material. It is not contended that that point is reached here and, in any event, if it were, it would more properly be the subject of a claim of privilege in an affidavit of discovery rather than a reason for refusing discovery. Consequently, the fact that there will be medical evidence if the case proceeds to trial and that medical evidence can be called by both sides does not preclude discovery of the records in issue being necessary at this stage.”
Alternative Procedural Mechanisms
“The difficulty with this argument is that interrogatories should be framed as leading questions which require a ‘yes’ or ‘no’ answer. They are of particular value where a party with exclusive knowledge of some fact has formally denied that fact in their pleadings thereby placing the onus of proving the fact on the other party who has no first-hand knowledge of it. An interrogatory can require a party to confirm on oath facts which the other party might not otherwise be able to prove. This may enable significant savings to be made, for example, by obviating the need for witnesses to be called to formally prove documents at trial. However, interrogatories do not permit questions that require a narrative answer nor can they require a party to provide evidence of matters more properly the subject of oral evidence at trial.”
“The plaintiff suggests an interrogatory in the form of a simple question as to whether the plaintiff received treatment for his back in the five months after the accident. It is, in my view, difficult to see how a ‘yes’ or ‘no’ answer to that question could provide the defendant with the more nuanced information sought by way of discovery of the plaintiff’s medical records. This is both because the records will themselves be more detailed but also because, if the plaintiff is the person nominated to answer the interrogatory, he may or may not appreciate the significance of the contents of his medical records. This is not to suggest any dishonesty on the part of the plaintiff, merely to observe that he is somebody without medical knowledge who may not appreciate the full significance of his interactions with medical practitioners in the aftermath of his accident. The defendant cannot nominate any of the plaintiff’s treating doctors to answer the interrogatory (even if it were appropriate to identify only one such doctor) since the plaintiff has refused to identify the doctors who afforded him medical treatment after the accident in his replies to particulars.”