Court orders further discovery from State defendants regarding illegal adoption practices and State awareness.

APPROVED [2025] IEHC 374

THE HIGH COURT

Record No.: 2021/6811 P

BETWEEN:

ALOYSIUS CLARKE Plaintiff -and-

SAINT PATRICK’S GUILD (INCORPORATED) (IN LIQUIDATION), IRELAND, THE ATTORNEY GENERAL, THE ADOPTION AUTHORITY OF IRELAND, AND KL Defendants

JUDGMENT of Mr Justice Rory Mulcahy delivered on 2 July 2025

Introduction

1. These proceedings concern a claim by the plaintiff that he was, as an infant, unlawfully placed for adoption. He claims this was done by the falsifying of relevant birth records, including the procuring of a false birth certificate.

2. The first defendant is the former adoption society alleged to have arranged the illegal adoption. The fifth defendant is sued as a nominated representative of the Holy Orders of the Religious Sisters of Charity, and as a representative of all remaining members of that Order in Ireland. It is alleged that the first defendant was at all material times under the management of the fifth defendant.

3. The second, third and fourth defendants (“the State defendants”) are sued on the basis, inter alia, that they failed to take adequate steps to protect the plaintiff’s constitutional rights

NO FURTHER REDACTION REQUIRED in circumstances where it is alleged that the State defendants were aware of, or had reasonable grounds to suspect that, the first and fifth defendants were involved in the illegal adoptions of children in the State.

4. This judgment concerns an application for further and better discovery by the fifth defendant against the State defendants.

5. The initial order for discovery was made by me on 30 January 2024. The plaintiff’s case is one of a number of cases in which the plaintiffs claim that they were illegally placed for adoption, and it has been agreed between the fifth defendant and the State defendants that the discovery made in these proceedings could be relied on, as between them, in all other such proceedings. The scope of the discovery order reflects this agreement.

6. Although the order allowed twelve weeks for the making of discovery, that timeframe was extended, by consent, on a number of occasions. The parties engaged extensively with each other throughout, both as to the scope and modalities of discovery, although there remained significant dispute between them as to how the State defendants were approaching their discovery obligations.

7. Discovery was made on a rolling basis and a final set of documents was discovered on

11 November 2024. The State defendants filed affidavits of discovery from Tusla, the Adoption Authority of Ireland, the Department of Foreign Affairs, the Department of Justice, the Department of Children, Equality, Disability, Integration and Youth, and the Department of Health.

8. By letter dated 18 November 2024, the fifth defendant’s solicitors raised concerns about alleged deficiencies in the discovery made. They also queried the State defendants’ assertion of privilege over certain documents. Further correspondence was exchanged between the parties, and on 10 December 2024, I gave the fifth defendant liberty to issue a motion seeking further and better discovery.

9. The motion issued on 29 January 2025 returnable for 24 February 2025. Affidavits and legal submissions were exchanged, and the motion came on for hearing on 2 and 3 June 2025.

10. The State defendants also issued a motion for discovery against the fifth defendant, which was to be heard together with the fifth defendant’s motion. I was advised at the hearing of the two motions that agreement had been reached on the State’s motion, save for the issue of costs. Having heard argument on the issue of costs, I awarded the fifth defendant 50% of the costs of the motion, with a stay on that order pending the determination of the proceedings.

The motion for further and better discovery

11. In the motion seeking further and better discovery, the fifth defendant identified five categories of documents in respect of which she contended that the discovery was inadequate. She also challenged the State defendants’ assertion of discovery over a particular document which she claimed had previously been disclosed, in unredacted form, to the Mother and Baby Homes Commission of Investigation (“the Commission”) and, therefore, could not be regarded as privileged.

12. Although the State defendants initially opposed the making of further discovery and maintained their claim of privilege, including in their submissions delivered in the week prior to the hearing, the parties ultimately agreed terms on which further discovery of four of the categories identified would be made. In addition, the State defendants withdrew their claim for privilege over the challenged document. The State defendants have already agreed an order for the fifth defendant’s costs of the motion for further and better discovery, subject to a stay.

13. The remaining category over which further discovery was sought was Category 1.3, which was expressed in the following terms:

“All documents touching on or concerning the prosecution of [a named individual] of [an identified] nursing home, including the relevant Department of Health files.”

14. It appears that the person in question was prosecuted in relation to her role in facilitating illegal adoptions at the nursing home in question. This category of discovery is thus relevant to the question of the State defendants’ knowledge of the alleged practice of illegal adoptions involving falsified birth records, an issue I return to at the end of this judgment.

15. It should be noted that there are other categories of documents relevant to the prosecution where no further discovery is sought. Notwithstanding this, the fifth defendant contends that, by reference to the content of the Commission’s Report and also to a number of newspaper articles, there are other documents which must exist (or have existed) but which haven’t been disclosed.

16. In the affidavit of Conor McClements grounding the motion, he refers to newspaper articles and to paragraphs 32.404 to 32.419 of the Commission’s Report from which he says it appears that the prosecution of the named person stemmed from a memo from the American embassy in Dublin in 1954 further to which the Irish State was put on notice of the practice of illegal adoptions involving falsified birth records. He quotes paragraph 32.405 of the report:

“The matter was referred to the Gardaí. A detective inspector investigated and prepared a report dated July 1954 in which he outlined what he had discovered and said that the investigation was not yet fully completed. He said that:

As instructed enquiries were conducted and continue to be so conducted personally and on a confidential basis. Despite this many of the persons interviewed showed a great reluctance to speak on the affair and much hesitancy was encountered, some of which was undoubtedly due to motives of charity or again through fear of exposure.”

17. Mr McClements says that it is clear from the foregoing that the gardai investigated the matter and prepared a report dated July 1954, which has not been discovered. He also avers, by reference to paragraph 32.418 of the Commission’s Report, that the Dublin Health Authority also examined the matter and that it is reasonable to suppose that additional documents exist in light of this review, but that none of those documents have been discovered.

18. Mr McClements also refers to documents which may be held by Tusla. The Commission’s Report refers to the fact that during the course of the garda investigation, the records of the nursing home were searched and that it was discovered that “during the period January 1960 to January 1963, there were 51 births, particulars of which were given in the

Record Book, which were not registered.” Tusla’s affidavit of discovery refers to the fact that it holds one such record from the years 1947 to 1961, but that, having reviewed same, it was not considered relevant. No reference is made to the 1962 or 1963 records.

19. In a replying affidavit sworn on behalf of the State defendants, Mr Brian Malone gives details of the methodology used by each State entity when making discovery.

20. In relation to documents regarding the prosecution, he states that Mr McClements failed to note, or draw the court’s attention to the reference at paragraph 32.412 of the Commission’s Report to the effect that the gardaí were unable to locate the prosecution file.

21. He says that the document which was provided to the Commission has been discovered to the fifth named defendant. He asserts that the State defendants have therefore complied with their discovery obligations in relation to category 1.3.

22. Mr McClements delivered a replying affidavit in which he accepted that the garda file has been lost, but notes that the document which has been discovered refers to an investigation by the Department of External Affairs, now the Department of Foreign Affairs, and that it is clear that in their enquiries for the purpose of making discovery, the Department of Foreign Affairs did not address this category of discovery at all, but rather treated it as one to be dealt with by the Department of Health.

23. He also notes that it is clear from the Commission’s Report that Tusla has access to admission/discharge records from the nursing home, in particular for the years 1962 to 1963, but these have not been discovered and that Mr Malone’s affidavit doesn’t address these documents, or the records of the Dublin Health Authority

Assessment

24. In an application for further and better discovery, the issues for the court are different from those in the initial application for discovery. In a discovery application, the key considerations are relevance and necessity. But in an application for further and better discovery, the court is concerned with whether the party seeking the order has established that there are reasonable grounds for believing that there are further documents to be discovered. The onus is on the party seeking further discovery. In circumstances where the party against whom the order is sought will likely have sworn an affidavit to the effect that they have made discovery of all relevant documents, , as have the State defendants here, the onus on the moving party is not a light one.

25. The parties do not dispute the principles applicable to an application for further and better discovery. In Sterling-Winthrop Group Ltd v Farbenfabriken Bayer AG [1967] IR 97, Kenny J examined the circumstances in which further and better discovery may be required, that is, the circumstances in which a Court is entitled to conclude that a party has not made adequate discovery:

“Such an order will not be made when the application is based solely on an affidavit alleging that the other party has documents in his possession relevant to the action which have not been disclosed by the first affidavit. The court will, however, order a further affidavit of documents when it is satisfied (a) from the pleadings, (b) from the affidavit of discovery already filed, (c) from the documents referred to in the affidavit of discovery, or (d) from an admission by the party who made the affidavit of discovery that the party against whom the order is sought has other documents in his possession relating to the issues in the action which have not been disclosed by the first affidavit.

The court will also order a further affidavit when there are grounds, derived from the documents discovered, for suspecting that there are other relevant documents in the possession of the party who has made the affidavit or where there are reasonable grounds for believing that the person making the affidavit of discovery has misunderstood the issues in the case and has, in consequence, omitted documents from it.”

26. The question, therefore, is has the fifth defendant satisfied the court that there are reasonable grounds for believing that there are documents which might fall within the categories of discovery ordered but which have not been disclosed? In my view, she has.

27. Although it is accepted that the garda file relating to the prosecution has been lost, this should be properly reflected in an affidavit of discovery. Moreover, it appears that there are reasonable grounds for believing that the Department of Foreign Affairs may have or have had documentation relating to the matter, but because of the approach the State defendants took to discovery, that Department did not, in good faith, search for any such documents. It would not be unduly onerous to require it to do so now. Where there is evidence from documents that have been discovered that other documents may exist and the State defendants, on their own case, have not yet searched for such documents, an order for further and better discovery is appropriate.

28. In addition, there are grounds for suspecting that the Dublin Health Authority may have had relevant records, given the evidence that it carried out an investigation, which records might now be in the possession of the Health Service Executive. The HSE should be required to disclose these records if they contain anything relevant to this category of discovery, or, if they are not in their possession, to explain the position in relation to them.

29. Finally, while I accept that there are also grounds for believing that Tusla has or had admission and discharge records for the nursing home, it is far from clear how they would be responsive to this category of discovery. It is possible, however, that they are relevant to the broader issue, the State’s awareness, or otherwise, of a practice of illegal adoption. It is curious that the affidavit of discovery sworn on Tusla’s behalf specifically refers to records up to 1961, but that the Commission’s Report refers to records up to 1963, presumably obtained from Tusla. It may be that this is readily explained, but as no explanation has been provided to date, a further affidavit of discovery is required in relation to this type of document as well.

30. For the avoidance of doubt, any order that the State defendants make further and better discovery is without prejudice to any claims of privilege that they may wish to make over additional documents discovered.

Conclusion

31. The discovery exercise in this case has been challenging and I do not underestimate the task which the State faced. It seems to me that the fifth defendant has at all times sought to be cooperative in finding a way to ensure that the task was effective but not unduly burdensome.

32. Despite significant efforts, there are, unfortunately, deficiencies in the State’s discovery as is apparent from the agreement on most of the categories the subject of this application. It is also apparent that there are grounds for suspecting that the discovery made in relation to Category 1.3 is also deficient. Accordingly, I will make the order sought directing further and better discovery of this category.

33. Before concluding, it is worth making one observation. Discovery between these parties has, to a very significant extent, been required because of the matters which the State defendants have put in issue in these proceedings, in particular its alleged knowledge of the practice of illegal adoptions of the type claimed in these and the related proceedings. The State defendants’ Notice of Indemnity and Contribution, served on the fifth defendant and dated 17 September 2024, contains the following claims:

“Further and/or in the alternative and strictly without prejudice to the generality of the foregoing, if and to the extent that the plaintiff suffered harm and/or personal injury in the manner as alleged, or at all, which is not admitted, same was caused and/or materially contributed to by the failure of the fifth named Defendant, her servants or agents to properly manage, operate, monitor and oversee a legal adoption process and by choosing to instead facilitate an entirely illegal process of which they were well aware and which they actively sought to conceal from the State Defendants.

Further and/or in the alternative if and to the extent that the plaintiff suffered harm and/or personal injury in the manner and for the reasons as pleaded or at all which is not admitted, same was caused and/or materially contributed to by the failure of the fifth named Defendant to report and/or bring to the attention of the State Defendants the ongoing occurrence of an illegal adoption process which was being run for and to the benefit of the fifth named Defendant, servants or agents.”

34. Much, if not all of the discovery sought, which, it will be recalled, has been agreed can be relied on between these parties in all the proceedings involving similar claims regarding illegal adoption, has been sought for the purpose of establishing the State defendants awareness of such a practice.

35. It is not clear, however, that the State defendants awareness of the practice is, in fact, in issue. It appears from the oral submissions in this application, that the State defendants do not deny general awareness of the practice of illegal adoptions, rather they deny awareness of particular adoptions.

36. If that is now formally accepted by the State defendants, then it may be that an opportunity has been missed by the parties to dramatically reduce the scope of the discovery which the State defendants were required to make by the order of 30 January 2024. This is something which the parties may wish to consider and reflect on before engaging in further detailed searches in order to comply with the order for further and better discovery to which they have now consented, together with the order I propose to make on this application.

37. Be that as it may, the State defendants were required to make discovery by the order of

30 January 2024 based on the issues between them in these proceedings. They have now agreed to make further discovery of four categories, and I am satisfied that the fifth defendant has met the burden of establishing that there are reasonable grounds for believing that there are, or have been, in the possession of the State defendants other documents falling within the one remaining category of discovery in issue which have not yet been disclosed. It is appropriate, therefore, to make an order for further and better discovery.

38. I will list the matter on 16 July 2025 at 10.30 am for the purpose of making final orders on this application.