Discovery
LUKE MIGGIN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND EMILY MIGGIN)v.
HEALTH SERVICE EXECUTIVE AND MICHAEL GANNON [2010] IEHC 169
HIGH COURT OF IRELAND
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
Categories: 5th edition, Chapter 10, updates