High Court allows appeal on discovery categories, substituting specific documents due to proportionality and existing orders.

THE HIGH COURT

[2025] IEHC 412

Record Number 2019/9234P

BETWEEN

DS

PLAINTIFF

AND

MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr Justice Barr delivered electronically on the 24th day of June 2025.

Introduction.

1. The plaintiff is a soldier, having enlisted in the Irish army in March, 1997. He is 46 years of age. He undertook three tours of overseas duty in Eritrea in 2002, in Liberia in 2005, and in Chad in 2008.

2. By way of prophylaxis against contracting malaria, the plaintiff was prescribed Lariam (mefloquine) by army doctors, which he took for one month before his departure overseas, he took it while overseas, and for one month after his return to Ireland.

3. The plaintiff alleges that as a result of taking of Lariam, he was caused to suffer a psychiatric injury in the form of the onset of depression and allied symptoms, for which he remains on medication.

4. The plaintiff alleges that the defendants acted negligently, and in breach of his contract of employment, by inter alia, administering Lariam to him when it was unsafe and dangerous so to do given the known possible side effects of psychiatric sequelae; by failing to warn him adequately or at all of possible side effects of taking Lariam; and by continuing to administer the drug to him when they knew, or ought to have known that, it was unsafe so to do, due to his suffering adverse side effects caused by ingestion of the drug; in particular, due to his suffering a severe panic attack while on the tour of duty in Liberia.

5. On 30 April 2024, the Deputy Master of the High Court directed the defendants to make discovery of 10 categories of documents. The defendants have appealed that order insofar as it relates to 5 categories. At the hearing of the appeal, agreement was reached between the parties on one contested category of documents. Thus, there are only four categories that remain in dispute.

The Categories Which are Not in Dispute.

6. The following are the categories which were directed by the Deputy Master and which are not in dispute on this appeal:

A. The plaintiff’s medical file and personnel file and all medical notes, records and reports not contained in either the plaintiff’s medical file or personal file which relate to him to include the AF 722/A, AF 722/D, AF 722/E, AF 722/F, AF 722/G, AF722/J, AF 722/K, AF 14, LA 30, AF 677/B, AF 22.

I. A copy of “patient product information” and “summary of product characteristics” documents relating to the product Lariam received by the plaintiff from Roche Pharmaceutical operational the time of the plaintiff’s deployments to Eritrea in 2002, Liberia in 2005 and Chad in 2008 as set out in the pleadings.

S. Copies of any documentation related to the advice and/or instruction and/or direction issued by the defendants, their servants or agents, in respect of the administration of anti-malarial prophylaxis and in particular mefloquine to the plaintiff limited to the plaintiff’s deployment to Eritrea in or about 2002, Liberia in 2005 and Chad in 2008.

T. Copy of all DMB orders and guidelines up to and including the plaintiff’s tours in Eritrea in or about 2002, Liberia in 2005 and Chad in 2008 relating to the prescription and/or use of Lariam as a malaria prophylaxis.

W. Copies of all risk assessments carried out and safety statements prepared by the defendants on the use of anti-malarial prophylaxis and in particular Lariam in being on

(a) date of the plaintiff’s deployment to Eritrea in or about 2002, (b) the plaintiff’s deployment to Liberia in 2005 and (c) the plaintiff’s deployment to Chad in 2008.

7. At the hearing of the appeal, the parties agreed that the following category of documents could be inserted in place of the existing category O as directed by the Deputy Master: The defendants will furnish documentation showing the identity and (where possible) the Medical Council registration number of all doctors who prescribed Lariam for use by the plaintiff while in the army.

The Disputed Categories.

8. The following categories were directed to be discovered by order of the Deputy Master. These categories are in dispute between the parties:

C. All pre and post embarkation records, notes and memoranda and/or documents relating to the plaintiff.

J. A copy of any document, note, memoranda or records comprising of any research carried out by or on behalf of the defendants, their servants or agents, relating to the use of Lariam as a malaria prophylaxis up to 31 December 2002.

K. A copy of any document, note, memoranda or records of minutes of any meetings where the use of Lariam was discussed by the defendants, their servants or agents, prior to any decision to purchase same for use by members of the defence forces from 1992 to 1996.

P. A copy of any document, note, memoranda or record comprised of any reports of symptoms or adverse reaction by members of the defence forces related to the use of Lariam and the outcome or procedure adopted as a result of the said report from the date of the plaintiff's enlistment to the date of swearing of the affidavit of discovery, limited to the actual battalions deployed on the plaintiff’s three tours and the times of the plaintiff’s deployment.

The Pleadings in the Action.

9. The plaintiff commenced his proceedings against the defendants by issuance of a personal injury summons on 29 November, 2019. In it he pleads that he was required to take Lariam before, during, and after his three tours of duty overseas. He pleads that has suffered memory loss, depressive thoughts, nightmares, sleeplessness, erratic behaviour, paranoia and mood swings arising out of the adverse side-effects associated with Lariam.

10. The plaintiff pleads that the defendants, their servants or agents, were negligent and in breach of duty towards him, and in breach of contract in the following ways: by failing to provide appropriate and skilful medical services to the plaintiff; failing to provide a medical service of an appropriate standard; failing to take a comprehensive medical history from him prior to administering Lariam on each occasion; failing to detect or suspect indications in the plaintiff’s medical history such that malaria prophylaxis in the form of Lariam should not have been prescribed; failing to take precautions to reduce or prevent the plaintiff’s adverse reaction to Lariam; failing to carry out any or any adequate medical consultation with the plaintiff prior to administering Lariam; continuing to administer Lariam to the plaintiff despite the reported adverse reaction; failing to issue a prescription for a licensed drug, namely Lariam, in accordance with Medical Council guidelines; failing to either properly or at all to monitor the administration of malarial prophylaxis to the plaintiff; failing to obtain a valid consent from him to the administration of the drug; failing to warn him of any or all adverse side-effects of taking the drug; adopting a scheme for administering the drug which ignored the manufacturer’s guidelines and in which non-medical personnel played a key role in such a way as to incentivise the non-reporting or the non-detection of symptoms by a member of the defence forces; causing or allowing the plaintiff to develop an aggravation of psychiatric illness; causing a known adverse reaction to a dangerous drug and failing thereafter properly to calibrate the malaria prophylaxis regime in such a way as to avoid a repetition of the said adverse reaction; and failing to ensure that appropriate regimes of medical and psychological fitness and assessment were instituted over the prolonged period of time for which the plaintiff required them.

11. Following the delivery of replies and further and better particulars by the plaintiff, the defendant lodged its defence on 28 September 2021. Two preliminary objections were canvassed by the defendants in their defence; first that the plaintiff’s claim against the defendant was statute barred, and secondly, that the plaintiff was guilty of inordinate and/or inexcusable delay in the conduct of his proceedings, such the same ought to be dismissed.

12. Without prejudice to those preliminary objections, the defence went on to accept that the plaintiff had been a member of the Permanent Defence Forces at all material times and that he had undertaken overseas tours of duty in Eritrea in 2002, in Liberia in 2005 and in Chad in 2008. It was further admitted that the plaintiff was prescribed and dispensed Lariam as a malaria prophylaxis in relation to those three overseas tours of duty.

13. Save as was specifically admitted in the defence, all other matters were denied. In particular, the defendants denied that the plaintiff had taken the Lariam as directed; they denied that the defendants, their servants or agents, were negligent or in breach of duty or breach of contract in the manner alleged by the plaintiff or at all. The defence also put causation in issue. It denied that the plaintiff’s symptoms (which were not admitted) were caused by the ingestion of Lariam. The defence further pleaded that on or about 25 July 2017, the plaintiff had reported having suffered no adverse events during his overseas deployments, including to Eritrea, Liberia and Chad.

14. The defence pleaded that at all material times, Lariam was an effective and appropriate drug for malaria which disease was at all material times endemic in sub-Saharan regions, including in Eritrea, Liberia and Chad. The defence also pleaded that the plaintiff had been guilty of contributory negligence in failing to report any symptoms that he experienced following the ingestion of Lariam (the occurrence of such symptoms not being admitted).

The Evidence.

15. The evidence before the court was contained in a number of affidavits. The first of these was an affidavit sworn by Mr Declan Egan, an administrative officer in the Department of Defence, which affidavit was sworn on 7 May 2024. He began by stating that for the purposes of replying to a parliamentary question raised in Dáil Eireann, an analysis had been prepared in June 2012 showing the number of troops that had been deployed on missions where Lariam had been prescribed. The information compiled at that time, suggested that the numbers deployed across all applicable missions was 6,829. He gave the breakdown of the number of deployments to Eritrea, Liberia and Chad. He stated that even if the numbers were limited as ordered per category P in the discovery as ordered by the Deputy Master, i.e. to the plaintiff’s specific deployments, there would be a total of 1,166 deployments over these three tours of duty. Mr Egan stated that this was a somewhat qualified figure, as overseas tours were still ongoing in June 2012. Furthermore, the figure supplied only covered personnel who had been deployed. It did not cover personnel who had stayed on for further tours. In addition, the figures did not evidence the details of which members were in fact prescribed and administered Lariam. The memorandum was nonetheless illustrative of the general number of persons whose records would have to be reviewed for the purpose of establishing whether they came within the qualification criteria for the discovery ordered under category P.

16. Mr Egan went on to state that if the category as sought was ordered, it would require review of the files of every member of the army as routine medical services might have prescribed Lariam otherwise than for the purpose of overseas deployment i.e. for malaria protection while on personal holidays. He noted that the discovery sought under category P, sought all records commencing on the plaintiff’s date of enlistment on 18 March 1997. That would expand the scope of the files needed to be reviewed beyond the figures identified above.

17. Mr Egan stated that in order to comply with category P as ordered, the medical files of each individual member meeting the qualification criteria would have to be retrieved and reviewed. This would entail extensive review of the files as they would cover confidential medical information of the soldiers named in the files.

18. A further significant issue was as to what exactly might constitute “an adverse reaction to a report of symptoms or adverse reaction related to the use of Lariam”. Mr Egan pointed out that from the documentation that had been furnished by the manufacturers of the drug, there was a possibility of contracting up to 78 possible adverse side-effects from use of the drug. This would present a significant difficulty in attempting to comply with category P as ordered. It would entail a review of the medical files to first identify whether any of the approximately

78 possible adverse reactions had occurred. Second, consideration would have to be given to whether the adverse reactions would be identified based on contemporary standards, or as a retrospective exercise, based on what is now known. He stated that as demonstrated by the documentation that had issued from the manufacturers of the drug, the information from the manufacturer set out in the licensing documentation evolved as time progressed. Thirdly, a further exercise would have to be conducted to determine whether the side-effects were attributable, or perhaps potentially attributable, to Lariam ingestion. Mr Egan stated that the Central Medical Unit (CMU) had advised that they did not have experts in the subject matter or medical legal experts, who would be in a position to attribute symptoms to Lariam or otherwise conduct the necessary exercise to comply with the order as it currently stood. It appeared that that exercise would therefore require the engagement of medical legal experts.

19. Mr Egan went on to state that the approximate size of a medical file for a soldier deployed overseas was in the region of 415 pages. Even if the CMU had the expertise required to review to the approximately 1,166 files in order to comply with the discovery as ordered; to meet the deadline of 20 weeks, it would require the redeployment of all medical officers in Ireland, with cessation of all other activity carried out by them for a period of 20 weeks. It was stated that that would render the CMU non-operational for that period, with serious implications for defence forces operations generally.

20. Mr Egan stated that redaction would have to be undertaken to protect the medical confidentiality of the subject’s personal data and sensitive personal data.

21. Mr Egan then went on to deal with a discovery order that had been made in a separate case of O’Shea v Minister for Defence [Record No. 2013/1500 P], where extensive discovery had been made by the defendants. In that case, the court had directed that the medical files would be produced in redacted form of all soldiers who had made claims against the state arising out of the alleged use of Lariam. In all, 163 personnel were identified. A total of 69,531 pages had to be redacted. The average file was 427 pages, but discounting the personal injury summons, and pleadings, the likely average file size was in the region of 415 pages. In order to carry out the redaction work, each file had to be reviewed three times to ensure that any data which would identify the individuals were appropriately redacted to ensure the consistency of work. The claims office within the Defence Forces Office of the Director of Legal Services then carried out a sample review of approximately 20 redacted files to ensure quality control of the documents being returned to the solicitors for final review. In order to carry out this exercise, the defendants had had to purchase and use a file transfer software called “FileCloud” which was used to transfer tranches of material between stakeholders for each iteration of the documents on the redaction work in respect of this category of discovery.

22. Mr Egan went on to deal with the costs that had been incurred in complying with the order for discovery under category F in the O’Shea case. He set out in detail the breakdown of the figures, which came to a notional cost of €428,706 that was incurred in complying with category F in that case. He gave the breakdown of figures that had been used to reach that final figure.

23. Mr Egan stated that in practical terms, if the defendants had to comply with category P as had been ordered, that would effectively shut down the litigation branch of the Department of Defence for a period of at least a year. He confirmed that in lieu of furnishing category P as sought by the plaintiff herein, the defendants were agreeable to the provision of category F of the documents that had been discovered by them in the O’Shea case.

24. An affidavit was sworn on 7 May 2024 by David Murphy, a solicitor in the firm of Daniel Spring & Company, who are the solicitors on record for the defendants. In it, Mr Murphy stated that at present there were 85 claims pending before the courts in relation to injuries allegedly arising out of the ingestion of Lariam. He averred that the plaintiff’s solicitor, Katherina White Solicitors, were acting for 24 of those plaintiffs. He stated that while none of the cases were identical, there were significant similarities between all the cases that were pending before the courts at present. He accepted that the circumstances in the plaintiff’s case were somewhat unusual, in that it was unusual for a soldier to have three overseas tours of duty.

25. He went on to deal with the motion for discovery. He noted that it had been agreed that the motion for discovery in the present case would proceed by way of a “pathfinder” case that would have some relevance for the remaining cases in which discovery motions in similar terms had been issued. There were currently 13 such motions awaiting the outcome of the present application. The motion was originally heard before the Deputy Master over two days on 12 March 2024 and 30 April 2024. The plaintiff had originally sought 25 categories of documents, which the Deputy Master had recast down to the 10 categories that had been ordered.

26. Mr Murphy pointed out that the defendants were only appealing five of those categories that had been ordered by the Deputy Master. At the hearing of the appeal, a further category had been agreed between the parties. Thus, there were only four categories that remained in dispute at the hearing of the appeal. Mr Murphy went on in his affidavit to set out the grounds of objection which the defendants had to the categories that remained in dispute.

27. Mr Murphy set out the category of discovery that had been ordered at category F in the O’Shea case, which the defendants in the present case were offering in lieu of the discovery that had been ordered at category P. That category of discovery in the O’Shea case was in the following terms: “F. The redacted (to remove all names, service numbers and other information which would enable the identification of the individual) copies of the medical files for all members and former members of the defence forces who has/have initiated and served legal proceedings up to 16 November 2021 in relation to personal injuries they allege they sustained as a result of ingesting Lariam, and, the redacted (to remove all names, service numbers and other information which would enable the identification of the individual) copies of the personal injury summons served on behalf of each of these members/former members of the defence forces.”

28. Mr Murphy stated that the affidavit of discovery that had been ultimately sworn in the O’Shea case on 18 October 2023, covered 163 individual current and former members of the Permanent Defence Forces who had brought claims arising out of the use of Lariam. Mr Murphy stated that it was his belief that this would give a complete picture in relation to the use of Lariam in the army and the complaints that had been made by his soldiers arising out of its use by them. He stated that in his opinion this would more than meet the legitimate requirements of the plaintiff in the proceedings herein.

29. Mr Murphy went on to state that the limitation that had been opposed by the Deputy Master in relation to category P, which required that there only be a review of the files of persons deployed in the same battalions and at the same time as the plaintiff, had the effect of duplicating the exercise for the other 13 motions still pending, as each of those persons would have been deployed to the regions on different dates to the plaintiff herein. Therefore, the defendants would have to commence the exercise of identifying the relevant persons and reviewing each of their files afresh in respect of each affidavit of discovery. It was submitted that this would lead to a massive waste of time and cost in this regard.

30. An affidavit in response was sworn by Ms Katherina White, the plaintiff’s solicitor, on

27 November 2024. In her affidavit she essentially set out the grounds on which the plaintiff asserted that he was entitled to discovery of the disputed categories of documents. In relation to the assertion that had been made by Mr Murphy that the limitation that had been placed by the Deputy Master on category P, limiting it to the actual battalions deployed on the plaintiff’s three tours and at the times of the plaintiff’s deployment overseas, she stated that this was a significant limitation on the amount of discovery that would have to be made by the defendants under this category. She did not accept the assertion that had been made by Mr Murphy that it would in fact render the discovery more onerous. She stated that the relevant tours of duty were to Eritrea in 2002, Liberia in 2005 and Chad in 2008. She stated that while there may have been more than one battalion deployed by the Defence Forces to these countries in the relevant periods, the order was limited to adverse reporting from members of the battalions in which the plaintiff served and who were overseas at the same time as the plaintiff. She stated that it was her belief that that limited the possible adverse reporting to three six-month periods of overseas activity.

31. In relation to the alleged financial burden that would be placed on the defendants by having to comply with the contested categories of documents. She stated that if the court is satisfied that the documents were relevant and necessary to the plaintiff’s case, then the cost of making discovery was not a bar to the categories being ordered.

32. Ms White stated that the offer that had been made by the defendants to furnish the discovery that had been furnished by them under category F in the O’Shea case, did not go far enough. She stated that the documents that have been sought by the plaintiff in category P, involved the adverse reporting of use of Lariam, but crucially, it also sought the outcome or procedure adopted by the Army authorities as a result of that reporting. She stated that the O’Shea category did not encompass that vital element.

33. Ms White went on to deal with averments that had been made by Mr Egan in his affidavit. She stated that as category P was limited to the actual battalions deployed on the plaintiff’s three tours at the times of the plaintiff’s deployment, the fact that there may be ongoing overseas tours at the time of the compilation of the figures in 2012, was irrelevant.

34. She stated that insofar as confidential information was contained in any of the documents sought by the plaintiff, the plaintiff was agreeable to the files being redacted in the appropriate way. In relation to the alleged financial burden that would be incurred by the defendants in complying with the order for discovery, she stated that the were many types of cases in which the cost of complying with discovery far exceeded the potential damages recoverable in the proceedings. She stated that she did not accept that the category as framed was oppressive. She stated that it was her belief that the documents sought were necessary to bring about a fair and just resolution of the proceedings. She stated that as the defendants had put the plaintiff on proof of each assertion and allegation made by him in his personal injury summons, it was necessary for the plaintiff to obtain wide ranging discovery to deal with all the issues that would have to be dealt with at the trial of the action.

35. Finally, a brief replying affidavit was sworn by Mr Murphy on 6 December 2024, in which he merely traversed the issues that had been raised by Ms White in her affidavit.

The Law.

36. The law in relation to applications for discovery of documents has been set down by the Supreme Court in Tobin v the Minister for Defence [2020] 1 IR 211. The principles set down in that case are well-known; relevance and necessity remain the key criteria; however, if a there are equally effectual means of establishing the truth, then discovery may not be necessary. The proportionality test can be viewed as a refinement of the concept of ‘necessity’. Furthermore, it is the default position that where a document is established to be relevant, its production should be considered as necessary. However, as stated by Clarke CJ at para 48 in his judgment, this position can be displaced for a range of factors including the extent of the likely burden placed on the party in complying with discover; the extent to which it might be reasonably be expected that a contested document may play a reasonably important role in the resolution of the proceedings; and if there are alternative means of achieving the same end as sought in discovery but at a reduced cost.

37. At the hearing of the appeal, the parties were agreed that the following principles are the relevant principles that apply in the present case. I am satisfied that these constitute an accurate summary of the principles that can be derived from the relevant cases concerning discovery:

1. The court will only order discovery if it is satisfied that it is relevant and necessary to do so to enable the fair disposal of the case.

2. In reaching its decision, the court must also have regard to two further conditions which have to be satisfied when ordering discovery. These are the issue of proportionality and whether there is an alternative method by which the information can be obtained in a quicker and less expensive manner.

3. The court will not order discovery if it is of the view that it is disproportionate to require the party making discovery to do so on the basis of the cost of complying with the order, or the scale of discovery that would be required, or the time and manpower that would be involved in complying with the order; when set against the likely forensic benefit to the party receiving the discovery.

4. If the information which it is contained in the discovery is capable of being obtained in an alternative method that is either less expensive or quicker, the court will not order discovery. Here the court can have regard to other procedures that are available under the rules such as issuing interrogatories, or a notice for particulars. The court can also have regard to any offer of production of alternative discovery that is made by the party against whom discovery is sought.

5. The categories of discovery sought must be drawn with precision. This is to enable the party making discovery to know exactly what categories of documents it is obliged to discover under the order.

6. It is not permissible for a party to make a bald assertion, which is unsubstantiated by evidence, and use it as a springboard for obtaining discovery of documents.

7. If a defendant puts all matters in issue in its defence, that can widen the areas of discovery that will be relevant to the trial of the action. The key question is what issues arise for determination at the trial. These are the issues disclosed on the pleadings.

Discussion and Conclusions.

38. In determining this appeal the court has had regard to the pleadings in the action, the affidavit evidence as summarised above, the written and oral submissions of the parties and the case law referred to above.

39. The court is satisfied that the relevance, necessity and proportionality of the contested categories have to be examined in light of the issues identified on the pleadings. In addition, the contested categories of discovery have to be considered in the context of the overall discovery that will be made by the defendants under all categories. In other words, one must look at the contested discovery in the light of what has already been agreed or ordered by way of discovery.

40. The first contested category is category C, which concerns all pre-and post-embarkation records, notes and memoranda and/or documents relating to the plaintiff. I am satisfied that the objection made by the defendants to this category, which was to the effect that it was unnecessary having regard to the discovery ordered under category A, is a valid objection.

41. Under category A, the plaintiff’s medical and personnel file will be produced. The court is not persuaded that there would be anything that would not come within the ambit of category A, that would be contained in category C, that would be relevant to the issues that will fall to be determined at the trial of the action.

42. The plaintiff argued that if the two categories were effectively the same, the court should order category C, as it would only require the defendants to duplicate the documents that they had already discovered under category A. I am not satisfied that that is a valid argument in favour of directing the production of category C. It is not appropriate for a court to make an order requiring two separate categories of discovery, if one is merely a duplication of the other.

43. As I am satisfied that the documents sought in category C are almost exclusively covered by those in category A, and as I am not satisfied that there is likely to be any relevant documents in category C which are not in category A, I allow the defendant’s appeal against category C. This category will be deleted from the final order.

44. The next category in dispute is category J, which required production of all documents showing the research that was carried out by the Army authorities prior to the purchase and administration by it of Lariam to enlisted soldiers. I am not satisfied that this category is relevant to the issues that will arise, as it is not pleaded by the plaintiff that the defendants failed to carry out any or any adequate research into Lariam prior to purchasing it for use by soldiers going on overseas tours of duty.

45. There is no case made on the pleadings that Lariam did not have all requisite licences and authorisations from the Irish Medicines Board, now renamed the Health Products Regulatory Authority, and other regulatory authorities. In these circumstances, it is hard to see that a case could be made against a doctor for prescribing a drug for use by a patient, when that drug was legally and properly on the market for prescription by doctors in Ireland.

46. If the plaintiff wishes to make the case that the Army authorities ought to have done their own research and tests into the safety and efficacy of Lariam before prescribing it to soldiers, that would be an extraordinary case to make. It would have to be pleaded with some particularity. No such case has been pleaded to date.

47. In addition, I am satisfied that the category as sought is too vague in its terms. It would involve a search of all documents or minutes of meetings where any discussion in relation to the purchase and storing and moving of Lariam may have taken place. This would not appear to be relevant and would cast a disproportionate burden on the defendants in making the discovery. For these reasons, I allow the appeal of the defendants against category J. This category will be removed from the final order.

48. Similar objections arise in relation to the documentation sought under category K, which required the production of all notes, memoranda and records of any meetings where the use of Lariam was discussed by the defendants, their servants or agents, prior to any decision to purchase same for use by members of the defence forces from 1992 to 1996.

49. The same objections as arose in relation to category J arise in this case. Firstly, it is not pleaded in the personal injury summons that there was any breach of duty by the defendants in relation to their decision to purchase Lariam for use by the army. Secondly, the category sought is too vague in its terms. Thirdly, it would be disproportionate to require the defendants to discover documents from the period 1992 to 1996 in relation to these issues, which would only be of very tangential relevance, if any at all, to the issues that are likely to arise at the trial of the action. Accordingly, I refuse to direct that category K be furnished by the defendants. The defendant’s appeal against this category is allowed and it will be deleted from the final order.

50. This brings the court to the final category, which is category P. This was the main category that was in dispute between the parties. Relying on the averments in the affidavit sworn by Mr Egan and Mr Murphy, as summarised above, the defendants submitted that the discovery as directed by the Deputy Master, was disproportionate having regard to the enormous burden on the medical and legal manpower as outlined in the affidavits.

51. In addition, it was submitted that under the heading of proportionality, the court could have regard to the offer which had been made by the defendants to furnish the discovery that had been ordered as category F in the case of O’Shea v Minister for Defence, which was a similar Lariam case. The ambit of that category has been set out above.

52. The defendants submitted that insofar as the plaintiff had argued that that category was insufficient because it would only provide documents showing the complaints made by those personnel who claimed that they had suffered side effects from using Lariam, but would not show the nature of the response of the defendants upon receipt of those complaints; it was submitted that the Army’s response would be ascertainable from the documents discovered under categories S, T and W.

53. I am satisfied that the documentation sought under category P is relevant and necessary to the plaintiff’s case as pleaded. However, I accept the argument made on behalf of the defendants that the documentation offered by way of category F in the O’Shea case will provide the plaintiff with a complete picture of all relevant complaints made by enlisted personnel of having suffered adverse side-effects from taking Lariam.

54. Under this category as offered, the plaintiff will receive the redacted medical records of all 163 personnel who made complaints that they had complained about the side-effects from Lariam and who initiated proceedings up to November 2021 alleging that the Army authorities had not acted appropriately on those complaints.

55. I accept the evidence that under this category, the plaintiff will receive almost 700 pages of relevant material. That, allied to the documentation already ordered to be discovered, will enable the plaintiff to make his case at the trial of the action, or to deal and with matters put forward by the defendants in their defence.

56. Insofar as it was argued by the plaintiff that the discovery in the O’Shea case would not show the response of the Army authorities to the complaints made by soldiers that they had suffered side-effects from Lariam, I accept the submission made by the defendants that that response will be disclosed by the discovery produced under categories S, T and W.

57. Insofar as the plaintiff argued that category P was not burdensome because it is limited to the battalions in which the plaintiff served on his three overseas tours of duty; I accept the evidence of Mr Murphy as set out in his affidavit sworn on 7 May 2024, that limiting the discovery to complaints made by soldiers who served in the same battalions as the plaintiff on the three tours of duty will not necessarily reduce the burden of the discovery that will have to be made by the defendants in this regard. I am satisfied that if the discovery as ordered at category P were to remain, there would be a huge and disproportionate burden placed on the defendants in complying with same. In this regard, I accept the evidence set out by Mr Egan in his affidavit sworn on 7 May 2024.

58. I am satisfied that the documents which will be provided under the offered category F from the O’Shea case, the compilation of which came to a notional cost of just over €428,000, will more than adequately deal with the plaintiff’s requirement to be given relevant documents under the heading as sought at category P in the order of the Deputy Master.

59. Under the heading of proportionality, the court is entitled to have regard to whether relevant documentation is available from another source. I am satisfied that the court is entitled to have regard to the offer made by the defendants to make discovery as was done in the O’Shea case.

60. Accordingly, I allow the defendant’s appeal against category P, on the basis that category F from the O’Shea discovery order, will be substituted in its place.

Proposed Final Order.

61. Having regard to the findings made by the court on this appeal, it is proposed that the final order should be in the following terms:

(a) Allow the defendant’s appeal against categories C, J and K in the order of the Deputy Master dated 30 April 2024, which categories will be deleted from the final order for discovery;

(b) on consent, substitute the following for category O in the order of the Deputy Master: the defendants will provide the names and (where possible) the Medical Council registration numbers of all doctors who prescribed Lariam for use by the plaintiff while enlisted in the Army;

(c) allow the appeal against category P in part, by substituting therefore the discovery as ordered at category F in the case of O’Shea v Minister for Defence, as set out at paragraph 17 of the affidavit sworn by Mr David Murphy on 7 May 2024.

62. The parties are to submit to the registrar a draft order setting out the terms of the discovery as ordered by this court for the purpose of drawing up the final order.

63. As this judgment is being delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of no more than 1,000 words on the terms of the final order and on costs and on any other matters that may arise.

64. The matter will be listed for mention at 10.30 hours on 15 July 2025 and for the purpose of making final orders.

65. Finally, given that these proceedings have been in existence since 2019 and as they concern allegations about events that occurred as far back as 2002, it is appropriate that the action should be brought on for hearing as soon as possible. To that end, I propose to put the matter into the clinical negligence list for mention for the purpose of case management by the list judge. The court will fix that date when making the final order.