O'Keeffe v Governors and Guardians of the Hospital for the Relief of the Poor Lying-in Women Dublin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen,Mr. Justice Noonan,Ms. Justice Faherty |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] IECA 78 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2022/250 |
[2023] IECA 78
Noonan J.
Faherty J.
Allen J.
Appeal Number: 2022/250
THE COURT OF APPEAL
CIVIL
Practice & procedure – Discovery – Application for discovery of statements made by hospital to inquiry – Death of baby
Facts: The appellants’ baby had died in 2019 at the respondent hospital. An inquiry was held, and statements were submitted by the hospital. The appellants had applied for discovery of those statements, but this application had been refused by the High Court in decision [2022] IEHC 463. The matter now came before the Court of Appeal.
Held by the Court, that the appeal would be allowed. The Court was satisfied that the High Court Judge had fallen into error by assuming the documents concerned were confidential, and should have discounted the respondent’s opposition to the application for discovery. On that basis, an order for discovery would be made.
Appeal allowed.
EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 30 th day of March, 2023
. This is an appeal by the plaintiffs/appellants (“the parents”) against the judgment of the High Court (Twomey J.) delivered on 26 th July, 2022 ( [2022] IEHC 463) and consequential order made on 4 th October, 2022 refusing the parents' application for discovery by the defendant/respondent (“the hospital”) of the statements made to an inquiry conducted by the hospital into the death of the parents' baby, Fiadh, at the hospital on 12 th January, 2019.
. In the High Court, and before this court on the appeal, there was extensive debate as to the circumstances in which public interest considerations associated with a risk management inquiry should weigh against the disclosure by a hospital of all documents and records relevant to litigation brought against a hospital, but as I will explain, there was no evidential basis for that debate. Absent evidence as to the circumstances in which and the purpose for which the contested documents came into existence, the debate, in my view, was moot.
. Ms. O'Keeffe became pregnant in early 2018 and from 19 th June, 2018 attended at the hospital from time to time for ante-natal care. Following a number of attendances in the meantime, Ms. O'Keeffe was admitted to the hospital on 9 th January, 2019 for a planned induction of labour. The delivery was complicated. Baby Fiadh was born at 05:32 on the morning of 11 th January but died on the following day.
. On 21 st December, 2020 a personal injuries summons was issued on behalf of the parents claiming damages for the wrongful death of Fiadh and damages for personal injuries and nervous shock to the parents. Mr. Maher S.C., opening the appeal, recalled the judgment of Hardiman J. in Grant v. Roche Products (Ireland) Ltd. [2008] 4 I.R. 679 and emphasised that the parents fundamental object in bringing their action is to secure a finding of wrongful death in vindication of the personal rights of Baby Fiadh. The indorsement of claim set out a detailed chronology of the labour and delivery, and the attempts to save Baby Fiadh. It made the parents' case that the hospital had been negligent, setting out thirty-two particulars of negligence.
. On 12 th January, 2021 an appearance was entered on behalf of the hospital and – following a motion for judgment in default of defence – the hospital's defence was delivered on 14 th December, 2021. The affidavit of Ms. Laura Croke, an associate solicitor in the firm of Michael Boylan Litigation Law which acts for the parents' – to which I will come – shows that the medical records had been provided by the parents' solicitors to the hospital's solicitors on 21 st December, 2020.
. The defence admitted Ms. O'Keefe's admission to the hospital, the birth, and the death but otherwise largely traversed. The parents were put on full proof of the factual narrative, matters and allegations pleaded in the particulars of the circumstances relating to the commission of the wrong; and the hospital denied the allegation of negligence and the particulars of negligence as if set out and traversed seriatim. Under the heading “The grounds on which the defendants claims that it is not liable for the injuries alleged to have been suffered by the plaintiffs,” the hospital justified the specific elements of the management of the labour and the delivery criticised in the summons and pleaded that the care provided was at an acceptable level.
. The personal injuries summons was verified by an affidavit of Ms. O'Keeffe sworn on 12 th January, 2021 and the personal injuries defence was verified by an affidavit of Prof. Fergal Malone, consultant obstetrician and gynaecologist.
. Notice of trial was given on 13 th January, 2022 and on the same day the action was set down for hearing. A notice to produce was served by the parents' solicitors on 13 th January, 2022 and by the hospital's solicitors on 8 th February, 2022.
. On 11 th January, 2022 the parents' solicitors wrote to the hospital's solicitors asking for confirmation within fourteen days that the hospital would make voluntary discovery of three categories of documents, broadly, (1) all documentation generated between 19 th June, 2018 and 31 st January, 2019 in respect of the care of Ms. O'Keeffe and Baby Fiadh, (2) the protocols and guidelines in place in that time for the management of identified complications in labour and delivery and (3):-
“Copies of all reports, memos and statements concerning [Ms. O'Keeffe's] labour and delivery and [Fiadh's] death in the possession, power or procurement of the [hospital], their servants or agents, medical consultants, midwives or third parties acting on the [hospital's] behalf as a consequence of the hospital's risk management enquiry into the incident event.”
. There appears to have been no reply to that letter, or to a reminder of 27 th January, 2022 and by notice of motion dated 11 th March, 2022 the parents applied to the High Court for an order for discovery in the terms previously sought.
. That motion was grounded on an affidavit of Ms. Laura Croke sworn on 9 th March, 2022, to which I have referred. Ms. Croke summarised the claim and the proceedings and set out that voluntary discovery of medical records had been made on 21 st December, 2020. The averment was ambiguous but it was evident from an earlier affidavit of Ms. Croke, sworn in support of the motion for judgment, that the records had been provided by her to the hospital's solicitors. Ms. Croke referred to and exhibited her unanswered letters of 11 th January, 2022 and 27 th January, 2022 and said that:-
“I say that the documents sought to be discovered are within the possession, power or procurement of the defendants and are relevant to the issues in dispute between the parties. I say that the reasons for the plaintiffs seeking each particular category of documents is fully and clearly set out in the said request for voluntary discovery made by letter dated 11 th January, 2022.”
. The relevance of the first two categories of discovery sought is clear from the summons and defence. The third category suggests – as the reasons given in the letter seeking voluntary discovery in support of the category asserted – that at some stage the hospital had conducted a risk management inquiry: but not when, or by whom, or for what particular purpose, or on what terms. Without reading too much into – or reading anything out of – Ms. Croke's averment, she did not specifically depose that the documents were necessary for the fair disposal of the action or for saving costs.
. The parents' motion for discovery was returnable for 30 th May, 2022 which – as usual – was a Monday, and came on before Twomey J. By then – and only shortly before the return date – there had been engagement between counsel as to the discovery sought and agreement had been reached in relation to the first two categories.
. As to the third category – the statements made to the inquiry – counsel for the parents submitted that “that the best available evidence in relation to those circumstances would be any statements that have been made in the immediate aftermath of the death of the baby in the course of that investigation.” Counsel for the hospital opposed the application for the third category on the grounds (1) that the parents had already been provided with the report of the risk management inquiry, (2) that the parents had been provided with draft depositions which had been prepared for a forthcoming inquest, (3) that the documents underlying the risk management inquiry were inadmissible and hearsay, (4) that the contemporaneous medical records rather than the statements – which, it was said, had not been made in the immediate aftermath of the incident – were the best evidence, (5) that the only reasonable purpose for which the statements might be sought was cross-examination, and (6) that there was an important point of policy that the risk management inquiry had been conducted by a clinician and/or administrative staff who had no power of compulsion but depended on the cooperation of the staff. Citing Tobin v. Minister for Defence [2020] 1 I.R. 211, and looking at relevance, proportionality and necessity, counsel submitted that the family had all they needed and “there are strong policy arguments against ordering discovery of the category at paragraph C within the motion.”
. Although it had not been spelled out by counsel in those terms, Twomey J. expressed the view that the case seemed to raise a significant issue in relation to policy, specifically, from the perspective of seeking to learn from the incident for the benefit of future patients in the hospital and of ensuring that those engaging with the...
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