Dunne v Grunenthal GMBH

JudgeMr. Justice Noonan
Judgment Date06 December 2018
Neutral Citation[2018] IEHC 798
CourtHigh Court
Docket Number[2017 6229 P.]
Date06 December 2018



[2018] IEHC 798

Noonan J.

[2017 6229 P.]


Damages – Expert reports – Fair disposal – Defendants seeking to compel the plaintiff to produce expert reports for inspection – Whether the production of those reports for inspection was necessary for the fair disposal of the case

Facts: The plaintiff, Ms Dunne, was alleged to have suffered birth defects as a result of the consumption by her mother of the drug Thalidomide during pregnancy. She brought proceedings claiming damages against the first defendant, Grunenthal GMBH, the manufacturer of the drug, the second defendant, T.P. Whelehan Son and Company Limited, its distributor in Ireland, and the State. A motion before the High Court was brought pursuant to O. 31 r. 18 of the Rules of the Superior Courts seeking to compel the plaintiff to produce the expert reports of Professor Stephens and Dr Riordan for inspection.

Held by Noonan J that the defendants had not satisfied him that the production of those reports for inspection was necessary for the fair disposal of the case.

Noonan J held that he would refuse the application.

Application refused.

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of December, 2018

The plaintiff in these proceedings is alleged to have suffered birth defects as a result of the consumption by her mother of the drug Thalidomide during pregnancy. She has brought proceedings claiming damages against the first defendant, the manufacturer of the drug, the second defendant, its distributor in Ireland and the State.


The personal injury summons herein was issued on the 10th July, 2017. The plaintiff was born on the 8th March, 1961 and attained her majority on the 8th May, 1992. Thus the proceedings were issued some 35 years later and on their face at least, would appear to be statute barred. In her summons, the plaintiff pleads that she was examined in November, 2015 by Dr. Willie Riordan, a consultant clinical geneticist who concluded that the birth deformities from which the plaintiff suffers were, on the balance of probability, caused by Thalidomide. In her replies to particulars of the 27th September, 2017, the plaintiff also refers to the fact that she was diagnosed as a Thalidomide survivor by Professor Trent Stephens, professor of anatomy and embryology arising from an examination in February, 2016. She goes on to state in the replies:

‘Accordingly, the plaintiff relies upon the expert opinions of both Professor Stephens and Dr. Riordan to the effect that she is a Thalidomide survivor and accordingly, on the basis of that knowledge, instituted these court proceedings.’


In further replies of the 6th November, 2017, the plaintiff pleaded:

‘The plaintiff first appreciated that the injuries affected were caused, on the basis of medical opinion, by the maternal ingestion of Thalidomide upon receipt of the expert report of Professor Trent D. Stephens in 2016.’

In their defences, the defendants rely upon the Statute of Limitations and by way of Reply, the plaintiff pleads:

‘The plaintiff relies upon the Statute of Limitations (Amendment) Act, 1991 [“ The 1991 Act] in that the plaintiff's “date of knowledge” within the meaning of s.3 and as defined by s. 2 of that Act and for the purposes of these proceedings occurred not before the 25th November, 2015’.

In yet further replies of the 22nd March, 2018, the plaintiff pleads:

‘(i) The date pleaded is the date of receipt of medical opinion attributing the plaintiff's injuries to maternal ingestion of Thalidomide.

(ii) Please also see para. (1) (a) (i) above. The plaintiff did not have knowledge that the injuries were attributable in whole or in part to the acts or omissions which are alleged to constitute negligence and/or breach of duty.’


In response to these pleas, the defendants called upon the plaintiff to produce a copy of these reports. The plaintiff declined to do so noting on the 25th May, 2018:

‘The plaintiff objects to the production of the said expert opinion which will be disclosed in due course pursuant to S.I. 391 of 1998’.


The first defendant followed up this request by serving a Notice to Produce on the plaintiff's solicitors on the 17th April, 2018 calling for the production of the reports of Professor Stephens and Dr. Riordan pursuant to O. 31 r. 15 of the Rules of the Superior Courts. The plaintiff declined to comply with this notice.


This case, together with a cohort of similar claims, have been case managed by this court for a considerable period of time. The motion now before the court is brought pursuant to O. 31 r. 18 seeking to compel the plaintiff to produce the reports for inspection.


Order 31 r. 15 provides as follows:

‘Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings, or affidavit or list of documents reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit copies thereof to be taken; and any party not complying with such notice shall not afterwards be at liberty to put any such documents in evidence on his behalf in such cause or matter, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice; in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.’


Order 31 r. 18 provides:

‘18. (1) If the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit or list of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

(2) An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.’


The principles to be applied in applications under O. 31 r. 18 were considered by this court in Cooper Flynn v. Radio Telefis Eireann [2000] 3 I.R. 344 (recently applied in Maye v Adam & Ors [2015] IEHC 530). The defendant sought an order against the plaintiff's employer, a bank, requiring it to make available in unredacted form the documents it had disclosed in a non-party discovery affidavit. Kelly J. (as he then was) observed that r. 18 (2) makes clear that the court ought not make an order if it is not necessary for disposing fairly of the action or for saving costs.


In that latter regard he approved the judgment of Simon Brown L.J. in Wallace Smith Trust Company Ltd v. DeLoitte Haskins and Sells [1997] 1 WLR 257 which contained the following passage:

‘2. The burden lies on the party seeking inspection to show that that is necessary for the fair disposal of the action….

5. Disclosure will be necessary if: (a) it will give “litigious advantage” to the party seeking inspection ( Taylor v Anderton [1995] 1 WLR 447 at p.462 and (b) the information sought is not otherwise available to that party by, for example, admissions, or some other form of proceeding (e.g. interrogatories) or from some other source (see e.g. Dolling-Baker v Merrett [1990] 1 WLR 1205 at p. 1214) and (c) such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (see e.g. Science Research Council v Nasse [1980] AC 1028 at p. 1076 per Lord Edmund-Davies).’


The court was also of the view that if a prima facie case was made out for disclosure, the court should examine the documents involved to ensure that inspection was indeed necessary and to see if the loss of confidentiality involved could be mitigated. In the present case, I directed that the documents be made available to me for that purpose.


On the issue of what constituted ‘necessity’, Kelly J. also referred with...

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3 cases
  • Elsharkawy v The Minister for Transport
    • Ireland
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    • 1 December 2023
    ...by the party so referring. However, that will not necessarily be the case. As noted by Noonan J. in Dunne v. Grunenthal Gmbh & Ors [2018] IEHC 798, the court has to consider the reasons why a document is referred to. In that case, the court refused to grant inspection of two medical reports......
  • Aoibhe Naghten (A Minor) v Cool Running Events Ltd
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    ...later by the High Court in Harrington v Cork City Council [2015] 1 I.R. 1. I considered both of these cases in Dunne v Grunenthal GmbH [2018] IEHC 798 where the issue was whether the plaintiff should be compelled to produce medical reports referenced in her pleadings for inspection by the d......
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    ...identified by the authorities as arising from non-simultaneous exchange. As I noted (at para. 25) in Dunne v Grunenthal and Ors [2018] IEHC 798, in both Kincaid and Harrington, the court identified the non-simultaneous exchange of expert reports as potentially amounting to an unfair litigio......

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