L(A) v N(M) and G(D)

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 04 March 2002
• Neutral Citation: 2002 WJSC-SC 3578
• Court: Supreme Court
• Date: 04 March 2002

2002 WJSC-SC 3578

THE SUPREME COURT

Murphy J

McGuinness J

Hardiman J

215/00

L (A) v. N (M) & G (D)

Between:

A L

Plaintiff

AND

M N and D G

defendants

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Litigation - Negligence - Allegations of sexual abuse - Whether discovery should be ordered - Whether discovery could be granted before pleadings closed - Rules of the Superior Courts, 1986 (215/2000 - Supreme Court - 04/03/2002)

L(A) v N(M) and G(D)

The plaintiff had initiated proceedings against the defendants for negligence arising out of an alleged sexual assault made by a priest under the control of the defendants. The plaintiff alleged that he suffered the assault while attending confession. In this regard the plaintiff sought a list of all priests hearing confessions at a particular church on the day of the alleged incident. Smith J was satisfied that such a list should be discovered by the defendants and made the appropriate order. The defendants appealed against the order.

Held by the Supreme Court (Murphy J delivering judgment; McGuinness J and Hardiman J agreeing) in allowing the appeal. The general rule was that discovery would not be granted before pleadings were closed. In the present case one could only speculate as to what the issues were between the parties. There were no exceptional circumstances and indeed there were significant reasons for preserving and applying the well established rule. The order of the High Court would be set aside. Either party could apply for an order of discovery at the appropriate stage.

1 Mr Justice Francis D Murphy on the 4th day of March, 2002

2 The pleadings in this matter commence and indeed conclude with a plenary summons dated the 19th of June, 1998, in which the plaintiff's claim is specified in the following terms:-

"The plaintiff's claim is for damages for personal injuries and other loss and damage sustained by him and occasioned by reason of the assault, negligence, breach of duty, including breach of fiduciary duty, on the part of the defendants or any or either or all of them, their respective servants or agents."

3 The next step taken by the plaintiff was the notice of motion dated the 1st October, 1998, in which the plaintiff sought discovery under five different headings. That application was grounded upon the affidavit of the plaintiff's solicitor, Mr Barry O'Donnell, in which it is averred that the plaintiff, who was then aged 13 years was sexually assaulted by a priest while attending confession at the Roman Catholic Shrine at Knock in the County of Mayo on the 1st day of September, 1991. The affidavit gives certain particulars in relation to the circumstances in which the assault is alleged to have taken place and asserts that discovery along the lines claimed was "essential to enable the plaintiff to prepare the case including the preparation of the statement of claim as against the defendants". By order dated the 5th October, 1999, the Master refused to make the order sought.

4 By notice of motion dated the 7th October, 1999, the plaintiff appealed the order aforesaid to the High Court. By order dated the 26th day of May, 2000, Mr Justice Smith, for the reasons set out in a judgment of the same date, made the order following:-

"It is ordered pursuant to Order 31 Rule 12 of the Rules of the Superior Courts that the defendants do make available to the plaintiff in the office of his solicitor Bruce St John Blake with no one else present save the plaintiff's mother and if necessary in the presence of his solicitor and the solicitor for the defendants all documents which are or have been in their power possession or procurement relating to the identity and attendance of persons in Holy Orders engaged in the administration of sacraments and other rites of the Roman Catholic Church including Confession at Knock in the County of Mayo on the 1st day of September 1991."

5 It is from that order and judgment that the defendants appeal to this Court.

6 The written submissions to this Court included references to Norwich Pharmacal Co & Ors .v. Commissioners of Customs and Excise [1973] 2 All ER 943 and Doyle .v. Commissioners of An Garda Síochána [1999] 1 IR 249. These are cases in this and the neighbouring jurisdiction dealing with an action which is brought solely for the purpose of obtaining discovery. Accordingly they have no relevance to the present case which is brought as an action against the defendants for wrongs allegedly committed by them, their servants or agents. The significance of the Pharmacal and other cases is that they contain an analysis of particular circumstances and in particular cases in which knowledge of the "innocent" defendant of an actual wrongdoer might be an appropriate justification for instituting proceedings for discovery only. That debate and analysis may have mislead both parties into believing that this...