Court of Appeal dismisses appeal against discovery order due to excessive and unfocused subcategories in negligence claim.

NO REDACTION NEEDED

APPROVED

THE COURT OF APPEAL

Record Number: 2025/76

High Court Record Number: 2023/1937P

Neutral Citation Number [2025] IECA 151

Costello P. Pilkington J. O’Moore J.

BETWEEN/

COLETTE O’REGAN AND DAVID O’REGAN

PLAINTIFFS/APPELLANTS

-AND-

DERMOT LANIGAN AND BON SECOURS HOSPITAL – BON SECOURS

HEALTH SYSTEM CLG

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 28th day of July, 2025.

1. This is an appeal by the O’Regans (who are mother and son) against an order of the High Court (Barr J.) fixing discovery to be made by the second Defendant (the Hospital). The underlying proceedings arise from the sad death of Gerald O’Regan, who was the husband of Collette O’Regan and the father of David O’Regan. Gerald O’Regan died on the 9th March 2022. In these proceedings, damages (including aggravated and/or exemplary damages) are sought against the Hospital and Mr. Lanigan (a medical practitioner and consultant urologist).

2. By an undated motion, returnable to the 18th December 2024, five categories of discovery were sought on behalf of the O’Regans. The relevant category for the purpose of this appeal is Category 5 which read: - “5. All documents relating to the issue of whether the second named defendants

(sic) are vicariously responsible for the negligence or other breach of duty of the first named defendant and the other surgical, medical and nursing staff who are engaged in giving advice, diagnosis or treatment or otherwise involved in the treatment and/or management of the said Gerald O’Regan, deceased, while a patient in the second named defendant’s, (sic) hospital.”

3. This application was grounded upon an affidavit sworn by the solicitor for the O’Regans, Denis O’Sullivan. Mr. O’Sullivan, in his affidavit, sets out in significant detail the pleadings in the case. He then (at para. 11) summarises the matters that are in issue as a result of the delivery of the defence. At para. 12 of his affidavit, Mr. O’Sullivan gives evidence about the advice provided by senior counsel to the effect that the five categories of discovery sought in the motion should be obtained. He then states (both at para. 13 and para.

15 of his affidavit) that this discovery “is necessary for disposing fairly of the cause of matter and it is also necessary for saving costs.” Mr. O’Sullivan does not explain, apart from reference to the pleadings, why it is that the discovery is necessary. He does not indicate any saving of costs which might accrue as a result of the granting of any of the classes of discovery. The averment is a general one, and relates to some or all of the discovery categories. It is not specific to Category 5. The reason contained in Mr. O’Donnell’s affidavit which refers directly to Category 5 reads;

“the documents in Category 5 arise out of the refusal of the [Hospital] to admit that their surgical, medical and nursing staff who managed the said Gerald O’Regan, deceased, in their hospital (including [Mr. Lanigan])were their servants or agents in respect of whom they are vicariously liable.”

There is no affidavit in response filed on behalf of Mr. Lanigan.

4. I have set out in some detail the nature of the evidence in this motion as ground (d) of the notice of appeal is, strikingly, the proposition that: - “No affidavit was sworn by, or on behalf of, the second named defendant either to contradict the averments made in the Grounding Affidavit sworn on behalf of the plaintiff that the discovery sought by the plaintiff is necessary for disposing fairly of the cause or matter and for saving costs, or to claim that the discovery sought by the plaintiff would cause hardship if ordered against the second named defendant, or to assert that the discovery is unnecessary as there are no other documents relevant to the said issue of precarious liability which could be the subject for discovery. Indeed, no such argument were made on behalf of second named defendant even in correspondence.”

5. The proposition that an averment of this sort, in particular as to the necessity that documents be discovered, must be accepted by the court in the absence of a response on affidavit is the one with which I do not agree. The fact that Mr. O’Sullivan gave entirely formulaic evidence to the effect that discovery was necessary, and that the granting of discovery would reduce costs, does not mean that the arguments made on behalf of the O’Regans in this regard are ones which must be accepted by the court. Even in the absence of a replying affidavit, it is for the court to decide whether (on the pleadings in particular) the discovery as sought is necessary. While the absence of any evidence on behalf of the hospital about the onerousness of making discovery is relevant, this was never an issue in the current application either before the Deputy Master or before High Court. It is irrelevant, therefore, for the purpose of this appeal that no such evidence was produced on behalf of the hospital and this cannot constitute a ground of appeal against the judgment of the trial judge. Finally, where it comes to the saving of costs the absence of any details as to how this is achieved by the making of the discovery sought is something that the court can take into account in deciding whether or not to grant an order for discovery.

6. Equally importantly, the pleadings of the O’Regans are seriously deficient when it comes to the allegation that the Hospital is vicariously liable for the actions (or inactions) of Mr. Lanigan. The word ‘vicarious’ appears nowhere in the Personal Injuries Summons. The furthest that the pleading goes in that regard is the statement, at paragraph 10, that Mr. Lanigan “was at all material times the servant of the [Hospital]”. When asked exactly what was meant by the phrase “servant” in that context, counsel for the O’Regans replied that it meant either an employee or a self employed person for whom the Hospital was vicariously liable. This is making one word do a great deal of work. The correct way to approach this would have been to plead that the Hospital was vicariously liable because of, for example, the level of control exercised over his activities or the like. Instead, when the Hospital denied in its Defence that it had “any liability or responsibility in law for the acts or omissions of [Mr. Lanigan], his servants or agents”, the O’Regans’ lawyers delivered no Reply contesting this or setting out the reasons why such liability arises in this case. It would have been possible to do so, even in general terms, and deliver particulars following the making of discovery. Instead, the O’Regan side has not properly particularised any plea of vicarious liability and for that reason alone the discovery currently sought should be refused.

7. The motion having been issued, the matter was dealt with by the Deputy Master on the original return date. The Deputy Master ordered discovery in terms of Categories 1 to 4 inclusive, and with regard to Category 5 refused the discovery sought in its entirety.

8. Before the hearing of the motion by the Deputy Master, there had been an attempt to narrow the issues through correspondence.

9. By email dated the 26th November 2024, the solicitors for the Hospital offered the following with regard to Category 5: - “All documents of (sic) evidence in the contractual relationship between the First and Second Named Defendants at the time of the care to the Deceased.”

10. This was rejected by the solicitors for the O’Regans, in a letter of the 27th November 2024, in very colourful terms. The relevant portion of the letter reads: - “This is unacceptable. The Bon Secours Hospital is a major private hospital which has disavowed all responsibility for the negligence and breach of duty of a clinician whom they appointed as a ‘consultant’ in that hospital and represented the public as being a ‘consultant’ of that hospital. ‘vicarious liability’ is not a contractual concept, but one founded in tort and is not limited by any contract between the hospital and its consultant purporting to oust the vicarious liability of a hospital for its consultant. Therefore, we must insist on discovery of Category 5 documents as required.

The Bon Secours Hospital has also disavowed vicarious responsibility for the negligence and other breach of duty of all other surgical, medical and nursing staff who had the care of plaintiff (sic). This disavowal of responsibility is as outrageous as it is ridiculous. In doing so, the Bon Secours Hospital is seeking to abdicate is

(sic) responsibility for the clinical governance of their hospital. A private hospital which charges its patients should at least accept the level of responsibility except by a public hospital to their patients. The Bon Secours Hospital must either accept vicarious liability for those involved in the treatment of the plaintiff (sic) (including the First Named Defendant consultant) or, alternatively, make the discovery sought in in (sic) Category 5.”

11. It is very unfortunate that the solicitors for the O’Regans were unable, in the sad circumstances of the current case, to craft correspondence which avoided confusing the deceased (Gerald O’Regan) with their clients (the plaintiffs).

12. In reply, the solicitors for the hospital stated (by email of the 9th December 2024): - “The First Named Defendant is not an employee. That relationship is governed by contract and we are willing to provide ‘all documents of (sic) evidencing the contractual relationship between the First and Second Named Defendants at the time of the care to the deceased’ in respect of Category 5.”

13. By a letter of the same day, the solicitors for the O’Regans noted that (despite the terms of the defence) the hospital had accepted that it was vicariously responsible “for any negligence of both our nursing staff and their junior doctors…” The letter continued: - “The fact of a contract, and the terms thereof, are not conclusive on the issue of vicarious liability. We suggest that you refer to McMahon and Binchy’s work on Torts if you are unfamiliar with this truism (sic).”

14. There then followed an extraordinary assertion. In the following paragraph, the solicitors for the O’Regans state: - “In fact, it is our contention that your clients have attempted to construct a façade to disguise the true nature of the relationship of your clients with their hospital consultants in an attempt to disavow all responsibility for their negligence.”

15. No details of this alleged “façade” are provided. This very serious allegation is not elaborated upon at all. It is simply left hanging there. As far as I am aware, it has not been stood up in any shape or form since that letter was sent on the 9th December of last year. When, at the hearing of the appeal, counsel was asked about the evidence upon which this allegation was based he eventually denied that there was anything “nefarious” suggested by his solicitors. This position is unconvincing. He then stated that this is not a commercial case, and that the nature of the claim could give rise to such “heated” correspondence. However, counsel was unable to refer to any facts supporting the assertion contained in the letter. The fact that different arrangements may be in place in public hospitals is not enough. It follows that an unpleasant allegation has been levelled against the Hospital without any basis whatsoever.

16. Also on the 9th of December, and apparently unsought by the solicitors for the hospital, the solicitor for the O’Regans proceeded to provide the hospital “with subcategories embraced within Category 5 of the documents which we seek on discovery herein…”

17. These “subcategories” read as follows: -

“(a) All documents … relating to the control or supervision exercise by the second named defendants over clinicians, including the first named defendant, while Gerald O’Regan, deceased, was a patient of the Second Named Defendants in their said Hospital.

(b) All documents … relating to the clinical governance exercised by the second named defendants over clinicians, including the first named defendant, while Gerald O’Regan, deceased, was a patient of the second named defendants in their said Hospital.

(c) All documents … relating to the privileges afforded by the Second Named Defendant to the First Named Defendant as their consultant to the Second Named Defendant’s said Hospital while Gerard O’Regan, deceased, was a patient of the second named defendants and their said Hospital.

(d) All documents … prescribing the standard of conduct in the management of patients with which clinicians (including consultants, such as the First Named Defendant) were required to conform, while Gerald O’Regan, deceased, was a patient of the second named defendants in their said Hospital.

(e) All documents… relating to any disciplinary procedure or clinical governance procedure initiated by the Second Named Defendants relating to the conduct of the First Named Defendants.

(f) All documents … relating to any contract of employment or memorandum of understanding or any agreement made between the First Named Defendant and the Second Named Defendant relating to the performance of his duties as consultant in the Second Named Defendant’s said Hospital.

(g) All documents … relating to payments of remuneration, expenses or taxes by the Second Named Defendants to, or on behalf of, the First Named Defendant in respect of services provided by the First Named Defendant to patients of the Second Named Defendants in their said Hospital.

(h) All documents … relating to the hours of work required to be performed by the First Named Defendant by the Second Named Defendants and their said Hospital, including documents relating to the taking of holidays or other absences from such work by the First Named Defendant.

(i) All documents … provided to Gerald O’Regan, deceased, which advised or warned the said Gerald O’Regan, deceased, that the Second Named Defendants assume no responsibility for the medical and/or surgical care that their patients were to receive in their said Hospital and assumed no responsibility for the care afforded by their consultant clinicians, including the First Named Defendant, while Gerald O’Regan, deceased, was a patient in their said Hospital.”

18. At the hearing in the High Court, the trial judge was told by counsel for the O’Regans that “we need clarification on the position as regards the nursing staff.” Counsel for the hospital referred to his solicitor’s letter of the 9th December, which accepted vicarious liability in respect of any negligence on the part of either the nursing staff or the nonconsultant hospital doctors involved in the treatment of the late Gerald O’Regan. As I have already set out in this judgment, by correspondence of the same date (9th December 2024) the solicitors for the O’Regans had noted this concession, and contrasted it with the position adopted by the hospital as far as Mr. Lanigan was concerned. It is difficult, therefore, to understand what “clarification” counsel will seek on behalf of the O’Regans at the hearing before the trial judge.

19. During the course of the hearing before the trial judge, there was no argument advanced as to why any of the “subcategories” identified in the letter of the 9th December 2024 (and which I have set out at para. 16 of this judgment) were either relevant or necessary within the meaning of that phrase as it has been employed for well over a century in applications for the discovery of documents.

20. The trial judge’s ruling was as follows (and to be seen in response to a submission by counsel for the O’Regans that “employment does not imply vicarious liability”): - “I am afraid, Mr. O’Mahony, since I was learning tort law back in the `80’s, it does if you are employed qua employee, not if you are employed as an independent contractor, but you are – it’s axiomatic that an employer is vicariously liable for negligence unless – the only two times you could lose it would be if the employee goes off on what they used to call a frolic of his own and he goes way outside his scope of employment. But he has to go way off the reservation. Or the other ground is if he is employed qua independent contractor. But they said if liability arises, the following are employees of the second named defendant – the nursing staff, the nonconsultant hospital doctor. I think that’s clear. I think the discovery, therefore – that’s in open correspondence by email – the discovery sought at paragraph 5 isn’t necessary in light of that concession and the documents … that they are prepared to give in relation to the first named defendant being all documents evidenced in a contractual relationship between the first and second defendants at the time of the care of the deceased. I think that’s more than sufficient to allow the plaintiff to assess whether there is, in fact, a vicarious responsibility because I think my understanding is the consultant doctors, whether appointed to a certain hospital, they’re actually employed by the HSE …”

21. The trial judge was then informed that the Bon Secours is a private hospital. He went on: - “Okay. But, anyway, they’re saying that he’s not an employee but they are going to give you all the documents underpinning his contractual relationship and to be able to argue – maybe you don’t have to accept whether he is not an employee.”

22. The ruling in the High Court, as is the case with many such rulings, was presented in a very telescoped way. Against that ruling, the O’Regans have advanced five grounds of appeal. They are as follows: - “(a) The issue of vicarious liability of the said private hospital for its consultant urologist is central to the plaintiff’s case against the second named defendant hospital.”

23. This is undoubtedly true. However, the trial judge made no finding to the contrary. It does not appear to have featured at all in his ruling. The question of whether or not one defendant is vicariously liable for the actions of another is, of course, a significant one though it may not be critical in the current case given the emphasis placed by the lawyers for the O’Regans on vicarious liability for the non-consultant hospital doctors and the nursing staff. In any event, there is no reason to believe that the trial judge erred in failing to understand the potential significance of the vicariate which the hospital may have for the actions of Mr. Lanigan and this ground of appeal therefore fails.

24. The second ground of appeal is: -

“(b) Vicarious liability is not determined by the characterisation in a contract of employment of the relationship created thereby as being that of master and servant or that of employer and independent contractor, but is rather determined by the actual relationship in fact proved to exist between the parties to the contract, including the actual extent of the control exercised by the private hospital over the activities of its consultant, the consultant’s actual role and responsibilities within the hospital organisation and the consultant’s status vis á vis the private hospital as represented by the hospital to its patients, which factors may not even be referred to, in the contract of employment, either intentionally or otherwise.”

25. This argument was not advanced at all before the trial judge. Even if it had been, and taking it at its height, the discovery sought (by reference to the subcategories identified by the solicitors for the O’Regans) is simply disproportionate or irrelevant having regard to the proper issue of the degree of control exercised by the hospital over Mr. Lanigan. In coming to this conclusion, I have considered each of the subcategories advanced by the solicitors for the O’Regans. Subcategory (a) looks for every document relating to the control or supervision exercised by the hospital over all clinicians over the period while the late Mr. O’Regan was a patient in the hospital. This is utterly excessive for the following obvious reasons. Firstly, it relates to all clinicians. It is not confined to consultants. Even if the category were confined to consultants, thus goes way beyond documents relevant to Mr. Lanigan. Secondly, it relates to clinicians in every area of treatment. It would require discovery of all documents which, for example, show the level of control over anaesthetists, cardiologists, or oncologists. Thirdly, it relates to every clinician, in every area of treatment, on and off over a period of over a year. The first period when the late Mr. O’Regan was being treated in the hospital was from the 17th February 2021 to the 26th February 2021. The second period was from the 29th March 2021 until the 3rd April 2021. The third period was from the 10th to the 11th May 2021. The fourth period was from the 11th June 2021 to the 16th June 2021. The fifth period was from the 26th August 2021 to an unspecified date. The final period was from the 17th February 2022 to the 9th March 2022. The documents covered in this category would include, for example, the level of control or supervision exercised by the hospital over a dermatologist operating there on a locum basis for a day over one of the relevant periods.

26. Equally disproportionate, for virtually identical reasons, are the documents sought at

(b) of the subcategories, which require discovery “relating to the clinical governance …” exercised by the hospital over every clinician over these periods. Subcategory (d) is also disproportionate, for materially identical reasons. No explanation has been advanced, and no evidence provided, as to why the discovery sought at subcategory (c) and (e) are needed. Subcategory (f) appears already to be available to the O’Regans by reason of the offer that the hospital has made. Again, no reason is given as to why the subcategory sought at (g),

(h) and (i) are either relevant to the pleaded issues or necessary for the purpose of the O’Regans case. In that regard, it is worth noting the subcategory (i) refers to documents which “advised or warned…” the late Mr. O’Regan that no responsibility was assumed by the hospital for any of the medical or surgical care which patients would receive or for the care afforded by any consultant clinician including Mr. Lanigan. Apart altogether from the conceptual difficulty in saying that such exculpatory documentation are necessary in order to show that the hospital is vicariously liable for the activities of Mr. Lanigan in the first place, the fact the documents extend to the issue of responsibility for other clinicians and consultants means that this category is also wildly disproportionate to any legitimate reason for granting access to documentation of this sort.

27. It is not for this court, on appeal, to recast the subcategories of discovery sought in respect of Category 5. That is a matter for the legal advisors to the O’Regans. They have had plenty of opportunity to do so. Indeed, the subcategories themselves are a recasting of the original very broad Category 5. It is simply too late, at this point in time, for the court to be asked to do the work of the plaintiffs’ lawyers. It must be said that, when asked about the need for the extensive discovery at subcategory (a), counsel accepted that it was excessive and that it should relate soleley to Mr. Lanigan. However, a similar concession was not made in respect of certain of the other subcategories and no alternative wording has been put forward in respect of any subcategory. This may be because counsel submitted (and repeated in his reply) that it is for the party making discovery to disclose only “material” documents. This entirely ignores the obligation on the moving party to specify with precision what each category of discovery is to cover. If the Court orders that a particular category of documents is to be discovered, the party making discovery must comply; it cannot decide not to discover documents included in the category simply because of a view (however justified) that these documents are not “material”.

28. While there is force in the submission made on behalf of the Hospital that we should consider Category 5 in its original form (as that is what is sought in the Notice of Appeal) we have decided (in ease of the O’Regans) to decide the appeal by reference to the subcategories. None of these are justified. Apart altogether from the pleading issue which I have already identified, no meaningful reason for these subcategories has been provided in accordance with Order 31 Rule 12 (1) (b). As was the case with Category 5 in its original form, the reasons included in Mr. O’Sullivan’s affidavit are simply blandly formulaic. Finally, the scope of each subcategory is simply too broad to be ordered.

29. This ground of appeal therefore fails.

30. The third ground of appeal is worded in the following way: -

“(c) If the express terms of the contract between the parties is allowed to be determinative of the existence of the vicarious liability of a private hospital for its consultants, then the parties thereto may at will subvert the functions of vicarious liability in Tort Law.”

31. This is a very generalised complaint. It does not engage with the actual judgment given by the trial judge, to the effect that the documents which the hospital was prepared to give in respect of Category 5 was enough for the O’Regans’ purposes. Even more pointedly, this ground of appeal does not explain why any of the subcategories sought in respect of Category 5 (or, indeed, Category 5 in its original form) should be ordered in the circumstances of this case.

32. At paragraph 4 of this judgment, I have set out in full the fourth ground of appeal. It is not a sustainable one, in my view.

33. The fifth ground of appeal is: -

“(e) Justice shall be done by the Trial Judge at Trial ‘on full information, rather than on a limited or partial revelation of the facts arising in a particular action.’”

34. As a general proposition, this is almost certainly the case. It does not, in itself, in any way advance a coherent argument as to why the particular discovery sought by reference to Category 5 should be ordered, either in whole or in part.

35. Much of the written submissions on behalf of the appellants deal with issues of vicarious liability, and the circumstances within which it can arise. It may well be that, had more focused discovery had been sought, it would have been possible to persuade this court that some form of discovery under the rubric of Category 5 should be made. However, having analysed each of the subcategories which are sought in this regard, and for the reasons I have already set out, the O’Regans’ appeal against the order of the trial judge must fail.

36. There is a second strand to the appeal, which is that the trial judge was wrong to award the costs of the motion before him to the hospital. The trial judge did this, as the only order he made in favour of the O’Regans was to direct that they receive by reference to Category

5 the documentation already offered by the hospital on the 26th November. He placed a stay on that order for costs pending the final determination of these proceedings before the High Court. No basis upon which this order should be upset is advanced at all in the notice of appeal or on the written submissions of the O’Regans. It was an eminently sensible decision as to costs, which certainly falls within the broad discretion that the trial judge had in dealing with that issue. I see no reason to upset it.

37. In summary, the discovery sought arises from a claim not properly or fully pleaded. The reasons for the discovery have not been adequately given, as the Rules require. The subcategories sought are exceptionally unfocused and excessive. No submission was made to the trial judge as to why any of these subcategories are required. It may be that, having considered the discovery which we understand has actually been made in accordance with the order of the trial judge, the O’Regans will seek discovery pursuant to Order 31 Rule 12

(11) (i). However, that is a matter for another day.

38. My provisional view on costs is that the Hospital is entitled to its costs of the appeal. In the circumstances of this case, I would follow the example of the trial judge and place a stay on that order pending the final determination of this action by the High Court. While this is a more unusual order for this court than it is for the High Court, it is justified given the very sad circumstances which have given rise to this claim.

39. Costello P. and Pilkington J. agree with this judgment and with the order I propose. In the event that either party wishes to argue for a different costs order, they should notify the Court of Appeal Office by 5 pm on the 14th of August and appropriate directions will then be given.