J.McP. v M.McP.
 IEHC 732
THE HIGH COURT
[2016 No. 2162 P.]
Damages & Restitution – Continuous sexual abuse – Conviction – Discovery of documents – Disclosure of confidential psychiatric records – S. 74 of the Land and Conveyancing Law Reform Act 2009 – Fraudulent transfer of properties
Facts: The plaintiff had instituted a claim for aggravated damages against the defendants/paternal grandparents in relation to the sexual abuse suffered by the plaintiff by the first named defendant. The plaintiff sought an order for the disclosure of psychiatric records of the first named defendant for the relevant time along with the conveyancing files in relation to the transfer of lands by the first named defendant to the second named defendant. The plaintiff alleged that the first named defendant transferred the specified lands with a view to defeat the plaintiff's claim for damages.
Mr. Justice Barr granted the relief sought by the plaintiff. The Court also directed the plaintiff to make discovery of her post-accident medical records. The Court noted that the first named defendant had specifically choose to put his mental state and level of insight at the time of admitted acts and thus, it became imperative that those documents must be disclosed. The Court found that discovery of documents pertaining to transfer of properties were necessary for the plaintiff to prosecute her claim under s. 74 of the Land and Conveyancing Law Reform Act 2009.
This is a somewhat unusual application, in which the plaintiff is seeking an order directing that the first named defendant should make discovery of his medical records from two psychiatric institutions. There is also an application that both of the defendants should make discovery of documents in their possession, power or procurement concerning the transfers of certain properties from the first named defendant to the second named defendant, which it is alleged by the plaintiff, were undertaken with a view to defeating her claim for damages against the first named defendant.
As this is an unusual application which seeks to oblige the defendant to make discovery of his confidential psychiatric records, it is necessary to set out the history of the matter in some detail.
The plaintiff is a young woman of 22 years of age. The defendants are her paternal grandparents. In these proceedings, it is alleged by the plaintiff that when she was aged between 9 years and 12 years, she was subjected to a large number of sexual assaults carried out by the first named defendant. She alleges that these assaults occurred at various locations, both within Ireland and in Portugal, when she was in the care of the first named defendant. It is alleged by the plaintiff that the abuse involved the first named defendant intimately touching and rubbing the plaintiff in the area of her vagina and elsewhere. It is alleged that the abuse by the first named defendant occurred on a weekly basis during the years in question. The abuse is alleged to have occurred between June 2005 and January 2008.
It appears that at some time subsequent to 2008, the plaintiff made a formal complaint to the gardaí. Following that investigation, criminal charges were brought against the first named defendant. From the affidavit sworn on 13th July, 2017, by Mr. James Glynn, the plaintiff's solicitor, he has averred that he attended at the Circuit Criminal Court on 15th April, 2010, when the first named defendant entered a guilty plea to eighteen counts in respect of criminal offences committed by him against the plaintiff. Upon his conviction, the first named defendant was sentenced to a term of imprisonment.
The present proceedings were commenced by way of plenary summons issued on 9th March, 2016. A statement of claim was delivered on 14th March, 2016. In it, the plaintiff claims damages, including aggravated damages, against the first named defendant for assault, trespass to the person and for breach of her constitutional right to bodily integrity and breach of fiduciary duty.
The plaintiff also claims damages against the second named defendant, her paternal grandmother, for negligence on the part of the second named defendant in failing to exercise reasonable care for the safety of the plaintiff, while she was being looked after by the defendants.
The plaintiff further claims that on dates unknown, but sometime prior to 10th May and 19th May, 2010, the defendants entered a conspiracy to defeat the plaintiff's claim for damages against the first named defendant. That with intent to defraud the plaintiff and/or to render worthless any judgment obtained by the plaintiff against the first named defendant, the first named defendant transferred and/or conveyed to the second named defendant his interest in three specified properties. On this account, the plaintiff claims against both defendants, an order pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009, declaring void the said transfers and conveyance by the first named defendant to the second named defendant in 2010, of the three properties identified in the statement of claim.
A defence was filed on behalf of both defendants on 1st December, 2016. It was a somewhat unusual defence, in that, while it contained the usual denials, certain partial admissions were made and the first named defendant put in issue certain matters in relation to his mental state at the time that the admitted acts were carried out. It is on the basis of these specific pleas, that the plaintiff seeks discovery of his psychiatric records. Accordingly, it is necessary to set out the relevant portion of the defence, which was in the following terms:-
‘3. The first defendant admits touching and rubbing the plaintiff in the area of her vagina for very brief momentary periods of time and on a limited number of occasions, and the first defendant will say that such touching occurred on occasions of playfulness between him and the plaintiff, and he considered it to be in the nature of platonic, friendly, caressing and innocent tickling and innocent horseplay.
4. The first defendant expressly denies that he had any inappropriate level of cognitive distortions about children and sex, but admits that he had little insight at the time into his offending behaviour and accepts fully that it may properly be perceived to have been abusive and injurious to the plaintiff.’
The defence went on to deny that any of the incidents complained of occurred during periods of time when the plaintiff was in the care and custody of the second defendant. She denied that she had any knowledge, or means of knowledge, of the abuse alleged to have been committed by the first named defendant against the plaintiff. She denied that she had failed to exercise such care for the plaintiff's safety, as would be exercised by a careful parent, or that she failed to see or to heed and/or to prevent the actions of the first defendant, thereby causing or contributing to the plaintiff's injuries, loss or damage.
The defence also contained a denial that the first and second named defendants had entered into any conspiracy in relation to the transfer of properties between them, as alleged or at all. The defence went on to state that save as had been specifically admitted in the defence, the plaintiff was required to prove each and every other matter set out in her statement of claim.
On 9th January, 2017, the plaintiff delivered a reply to the defence filed by the defendants, in which it was indicated that the plaintiff would request the trial court to treat the assertions made in the defence as additional grounds for awarding to the plaintiff aggravated and/or exemplary damages, in addition to the nature and conduct of the defence of the defendants herein. The reply also denied all the assertions and allegations contained in the defendants' defence.
Arising out of the defence filed on behalf of the defendants, the plaintiff's solicitor wrote on 9th January, 2017 and 9th March, 2017, seeking voluntary discovery of the first named defendant's psychiatric records with St. John of God's Hospital and the Granada Institute and also seeking as against both defendants, discovery of the conveyancing files in relation to the three specified properties. The plaintiff's solicitor did not receive any reply to these letters. Accordingly, on 24th May, 2017, the plaintiff's solicitor issued a motion seeking the following orders:-
(i) An order directing the first named defendant to make discovery on oath of the following categories of documents:-
(a) the first named defendant's medical records from 1st January, 2008 to date to include files and records from St. John of God's Hospital; and
(b) the files and records of the Granada Institute pertaining to the defendant's attendance and/or counselling and/or treatment there and/or under its auspices.
(ii) An order directing both defendants to make discovery on oath of the following categories of documents:-
(a) the conveyancing files in relation to any transfers or transactions concerning the lands comprised in [three specified properties] between 1st January, 2008 to date….
The plaintiff's solicitor, Mr. James Glynn, swore two affidavits grounding this application. In essence, he stated that in light of the defence filed on behalf of the defendants, in which the first named defendant had put in issue his mental state and which...
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