Gallagher v Stanley

JurisdictionIreland
Judgment Date01 January 1998
Date01 January 1998
Docket Number[S.C.
CourtSupreme Court
Gallagher v. Stanley
Blaise Gallagher (A Minor) suing by his mother and next friend, Avril Gallagher)
Plaintiff
and
Joseph Stanley and The National Maternity Hospital
Defendants
[S.C. No. 217 of 1997]

Supreme Court

Practice and procedure - Documents - Discovery - Privilege - Legal professional privilege - Medical negligence - Statements prepared by nurses immediately after birth of plaintiff - Whether documents prepared in contemplation of litigation

The plaintiff's claim was for damages for medical negligence arising out of the circumstances of his birth. In the course of the claim, discovery was ordered and privilege was claimed in respect of statements made by nurses who were on duty in the hospital at the relevant time, on the basis that the documents came into existence for the purposes of or in contemplation of litigation. The relevant statements were prepared by the nurses at the request of the matron of the second defendant on the morning after the birth of the plaintiff. The second defendant's claim of privilege was rejected by the High Court (Moriarty J.) and from this decision the second defendant appealed.

Held by the Supreme Court (O'Flaherty, Lynch and Barron JJ.), in dismissing the appeal, 1, that the privilege claimed was one of legal professional privilege which attaches to confidential communications passing between lawyer and client for the purpose of obtaining legal advice or assistance and also where litigation was contemplated or pending.

2. That the relevant question was whether litigation could be taken as being in contemplation as far as the hospital authorities were concerned.

3. That the test to be applied in relation to privilege was whether the dominant purpose for which the documents in question came into being was in apprehension or anticipation of litigation.

Grant v. Downs (1976) 135 C.L.R. 674;Waugh v. British Railways Board[1980] A.C. 521considered.Silver Hill Duckling Ltd. v. Minister for Agriculture[1987] I.R. 289;P.J. Carrigan Ltd. v. Norwich Union Fire Society Ltd.[1987] I.R. 618;Davis v. St. Michael's House (Unreported, High Court, Lynch J., 25th November, 1993) approved.

4. That the matron, in requesting the preparation of the statements, had in consideration the proper management and running of the hospital and a desire for a factual account of the course of events, as well as the possibility of litigation. The statements were essentially straightforward accounts of events and conversations and did not contain any element that should attract entitlement to legal professional privilege.

Cases mentioned in this report:-

A.M. & S. v. Commission (Case 155/79) [1982] E.C.R. 1575; [1982] 2 C.M.L.R. 264; [1983] Q.B. 878; [1983] 3 W.L.R. 17; [1983] 1 All E.R. 705.

Davis v. St. Michael's House (Unreported, High Court, Lynch J., 25th November, 1993).

Grant v. Downs (1976) 135 C.L.R. 674.

P.J. Carrigan Ltd. v. Norwich Union Fire Society Ltd. [1987] I.R. 618.

Silver Hill Duckling Ltd. v. Minister for Agriculture [1987] I.R. 289; [1987] I.L.R.M. 516.

Waugh v. British Railways Board [1980] A.C. 521; [1979] 3 W.L.R. 150; [1979] 2 All E.R. 1169.

Wheeler v. Le Marchant (1881) 17 Ch. 675.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of O'Flaherty J.,infra.

By notice of motion dated the 24th March, 1997, the plaintiff sought an order directing the second defendant to produce certain documents over which privilege had been claimed in an affidavit of discovery. By order of the High Court (Moriarty J.) dated the 9th June, 1997, this order was made.

By notice of appeal dated the 2nd July, 1997, the second defendant appealed to the Supreme Court. The appeal was heard by the Supreme Court (O'Flaherty, Lynch and Barron JJ.) on the 11th December, 1997.

Cur. adv. vult.

O'Flaherty J.

18th December, 1997

In these proceedings it is pleaded on behalf of the infant plaintiff that his mother and next friend, Mrs. Avril Gallagher, was admitted to the National Maternity Hospital on the 25th April, 1992, and that due to the negligence and breach of duty, including breach of statutory duty, of the defendants or one or other of them, their respective servants or agents in and about the diagnosis of the condition of the plaintiff and the plaintiff's next friend, their management and treatment and the subsequent delivery of the plaintiff, on the 27th April, 1992, the plaintiff sustained severe personal injuries. The defendants deny liability.

It is...

To continue reading

Request your trial
17 cases
  • Payne v Shovlin
    • Ireland
    • Supreme Court
    • 9 February 2006
    ...- Whether requirement to furnish report - Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469 and Gallagher v Stanley [1998] 2 IR 267 considered; Galvin v Murray [2001] 1 IR 331 and Kincaid v Aer Lingus [2003] 2 IR 314 distinguished - Rules of the Superior Courts 1986 (SI 15......
  • Hansfield Developments and Others v Irish Asphalt Ltd and Others
    • Ireland
    • High Court
    • 21 September 2009
    ...ORS v GOVERNOR & CO OF THE BANK OF ENGLAND (NO 5) 2003 QB 1556 2003 3 WLR 667 GALLAGHER (A MINOR) v STANLEY & NATIONAL MATERNITY HOSPITAL 1998 2 IR 267 1998/7/1906 DESIATNIK LEGAL PROFESSIONAL PRIVILEGE IN AUSTRALIA 2ED 2005 REDFERN LTD v O'MAHONY & ORS UNREP SUPREME 4.3.2009 2009 IESC 18 ......
  • University College Cork - National University of Ireland v The Electricity Supply Board
    • Ireland
    • High Court
    • 21 March 2014
    ...privilege as this was not the dominant purpose for which the statements and reports were prepared, according to Gallagher v. Stanley [1998] 2 I.R. 267. In considering the duration of litigation privilege, Geoghegan J decided that it should be reconsidered in the context of the general princ......
  • Colston v Dunnes Stores
    • Ireland
    • Court of Appeal (Ireland)
    • 28 February 2019
    ...out in detail the circumstances in which the documents had been created or procured. He instanced the decision in Gallagher v. Stanley [1998] 2 I.R. 267. 22 In all of the authorities the party asserting privilege had done much more than make a bald assertion that the party was entitled to ......
  • Request a trial to view additional results
2 firm's commentaries
  • Extent And Duration Of Litigation Privilege
    • Ireland
    • Mondaq Ireland
    • 15 May 2014
    ...justice will be best served where there is candour and where all relevant documentary evidence is available. Gallagher v. Stanley [1998] 2 I.R. 267 per O'Flaherty J. at p. 271. (c) The document must have been created when litigation is apprehended or threatened. (d) The document must have b......
  • Striking A Balance In Discovery Applications: Confidentiality Of Statements
    • Ireland
    • Mondaq Ireland
    • 28 March 2023
    ...of such an enquiry. The Plaintiffs discovery was refused. Footnotes 1. [2022] [IEHC] 463 2. [1990] 1 I.R. 469 3. [2010] 4 I.R. 338 4. [1998] 2 I.R. 267 5. [2009] 3 I.R. 766 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT