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1. This case concerns an appeal from decision of the Master of the High Court of Ireland refusing discovery of a transcript of the proceedings before the Fitness to Practise Committee of the Medical Council conducted in April 2008 concerning a complaint made against the Second Defendant as to the conduct and management of the Plaintiff’s birth. The Plaintiff asserted that the discovery of the transcript of the proceedings was essential for the conduct of the Plaintiff’s case and to create an “equality of arms” between the parties. The Court held as follows:

(1) Insofar as any conflict lies between the public interests in the production of documents or in the maintenance of their confidentiality under the provisions of the constitution (Irish Constitution), such conflict falls to be resolved by the Courts. Such discovery, if granted, is restricted and limited solely for the purposes prescribed by the Court Order and for no other purpose.

(2) The Court expressly adopted the rational in Eastern Health Board v. The Fitness to Practise Committee of the Medical Council and Others [1998] 3 IR 399 at page 428 namely,

(a) That a statutory imperative that proceedings of a particular nature be held in private does not imply that there was an absolute embargo on disclosure of evidence in all circumstances. Such an embargo requires specific statutory authority to displace judicial discretion and common law permits disclosure in appropriate circumstances.

(b) There is an established practice at common law recognised in England and in the Irish jurisdiction (see PSS v. Independent Newspapers (Ireland) Limited (unreported) High Court 22nd May 1995), that the Court in proceedings held in camera had a discretion to permit others on such terms as the judge thinks proper to disseminate (and in appropriate cases to disseminate himself/herself) information derived from such proceedings where the judge believes that it is in the interest of justice to do so, due and proper consideration having been given to the interest of the person or persons intended to be protected by the conduct of the proceedings in camera. In given circumstances, the judge may find that a crucial public interest such as the prosecution of crime or the protection of vulnerable children takes precedence over the interest of the protected person in non-disclosure of the information in question.

(c) In considering the conflict between the public interest or the interest of a person seeking disclosure on the one hand and the interests of an individual in retaining full benefit of the in camera hearing on the other, the court is bound by the concept that the paramount consideration is to do justice (see In Re R Limited (1989) IR 126).

(3) The Court held that the guiding consideration in evaluating the necessity for discovery is the overriding interest in the administration of justice. Discovery must of course must be relevant and necessary, but “necessary” does not connote absolute necessity. Citing Bingham MR in Taylor v. Anderton [1995] 1 WLR 447 at page 462 , the Court held, “The crucial consideration is, in my judgment, the meaning of the expression “disposing fairly of the cause or matter. Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise. The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in litigation as a result of the document not being produced for inspection. It is, I think of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That in my judgment is the test”. Further, in Science Research Council v. Nasse [1979] 3 All ER 673 at 684, Lord Salmon in his speech stated that “if the Tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then in my opinion the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant.” The Court held in determining the issue of equality of arms between the parties that “the Plaintiff of course possesses some strong cards. The fact, however, that the Second Defendant possesses the full pack, in all the circumstances of this case, creates, in my opinion, an inequality of arms”.

2. The Court was it held also obliged to imply a test of proportionality, see Independent Newspapers v. Joseph Murphy Junior [2006] 3 IR 566 Clarke J.

3. Allowing the appeal,the Court held in the circumstances of this case balancing justice in the specific circumstances of this case that the discovery of the transcript of the proceedings was warranted and limited in use to circumstances where the Court can exercise its inherent jurisdiction to police such discovery.
AJC 5/07/10


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