Court dismisses pre-pleading inspection order for sexual assault claim until negligence allegations are formally pleaded.

THE HIGH COURT [2025] IEHC 623

Record No. 2025 370 MCA

BETWEEN

M

APPLICANT

AND

T

RESPONDENT

JUDGMENT of Ms Justice Emily Egan delivered on the 28th day of October, 2025

Introduction

1. The intended plaintiff (“the plaintiff”) in these proceedings, which have not yet been commenced, requests the court to make two separate orders pursuant to Order 50 Rule

4 of the Rules of the Superior Courts 1986, as amended (“RSC”) and pursuant to section

12 of the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”).

2. The plaintiff seeks firstly, an order directing the intended defendant (“the defendant”)

to preserve certain evidence in these intended proceedings pending examination or inspection by the plaintiff’s expert and secondly, an order directing the defendant to produce this evidence for inspection by the plaintiff.

The plaintiff’s claim

3. The nature of the Infant plaintiff’s claim is broadly outlined in the affidavit of her solicitor grounding this application.

4. The plaintiff, who is now eight years of age was attending the intended defendant’s creche. The plaintiff alleges that, on a date in September 2022, when she was five years of age, she was sexually assaulted by another child, of roughly the same age, who was also attending the creche.

5. The plaintiff’s next friend avers that this occurred when the plaintiff and a number of other children, who had been left unsupervised, were playing in a shed in the garden of the creche (“the garden shed”).

6. The plaintiff seeks orders for preservation and inspection of three separate categories of evidence as follows:

1 The garden shed in which the incident of sexual assault is alleged to have occurred;

2 Any CCTV footage in respect of the incident;

3 The accident report forms, incident report forms, witness statements and contemporaneous notes and records in respect of the incident.

7. The plaintiff’s solicitor has received no response to their correspondence to the intended defendant (“the defendant”) requesting preservation and inspection facilities. However, the defendant has instructed a firm of solicitors to act on its behalf in relation to this matter and has also retained counsel for the purposes of contesting this motion.

8. At the opening of the motion, counsel for the defendant informed the court that it makes no objection to the orders of preservation sought. The dispute, therefore, concerns the application for inspection of that evidence.

Reporting restrictions

9. Prior to the publication of this judgment, in response to a direct question from the court, counsel on behalf of both the plaintiff and the defendant made an application that reporting restrictions be imposed in order to ensure the anonymity of the plaintiff.

Whilst of course such an order does not restrict the reporting of the substance of the proceedings and of the present application, it would preclude the publication or broadcast of any material which would identify the plaintiff. In the circumstances of this case, this would include any material which disclosed the names of the defendant creche where the plaintiff was attending at the time of the alleged sexual assault.

10. Whilst there is a constitutional imperative that justice be administered in public an exception is provided for under section 27 of the Civil Law (Miscellaneous Provisions)

Act 2008 (“s. 27”). This section allows a court to make an order prohibiting the publication or broadcast of any matter relating to proceedings which would, or would be likely to, identify a party to the proceedings as having a (sensitive) medical condition. Such an order may only be made where the court is satisfied that the following conditions are met: (a) the relevant person has a medical condition, (b) his or her identification as a person with that medical condition would be likely to cause undue stress to him or her, and (c) the order would not be prejudicial to the interests of justice.

11. The affidavit of the plaintiff’s solicitor, which grounds the present application, avers that the plaintiff has suffered both physical injuries and a considerable psychiatric injury as a result of the alleged sexual assault.

12. I am satisfied that the criteria set out in s. 27 are met in this case. The plaintiff alleges that she has suffered a sexual assault causing psychiatric injury. It would cause undue stress to the plaintiff were the fact that she suffers from this medical condition to be published or broadcast. It would cause further undue stress to the plaintiff were she to be identified in any reporting of the present proceedings.

13. Accordingly, I have made an order pursuant to s. 27 precluding the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the plaintiff. The imposition of these limited reporting restrictions is not prejudicial to the interests of justice as the underlying principle that justice should be administered in public is respected by the publication of this judgment on the Courts Service’s website.

The parties’ submissions

14. The plaintiff maintains that the sexual assault was permitted to occur as a result, inter alia of inadequate supervision. She has retained an expert to provide an expert report on liability. This expert has informed the plaintiff's solicitor that inspection of the above categories of evidence is necessary to enable her to prepare a report. The plaintiff therefore argues that the evidence sought is necessary to enable her to plead her case.

In this regard, the plaintiff invokes the principles applicable to pre-pleadings discovery.

15. The plaintiff’s next friend argues that in light of the very young age of the plaintiff at the time of the alleged assault there may be a difficulty in taking instructions in relation to what occurred on the day of the alleged assault and that the inspection sought is therefore necessary in order to enable proceedings to be drafted.

16. In support of her application, the plaintiff relies on a Tusla Early Years Inspectorate Regulatory Report in relation to the defendant creche (“the Tusla report”). This inspection was carried out in the aftermath of a formal complaint made by the plaintiff’s parents to Tusla in relation to the incident the subject matter of these proceedings.

However, the Tusla report is general in nature and does not refer to the alleged assault.

Rather, it offers an overall assessment of the childcare service provided by the respondent and the rooms in operation within the child care facility.

17. Two aspects of this Tusla report are said by the plaintiff to be of particular relevance.

18. First, the plaintiff observes that the Tusla report does not properly reflect the use of the garden shed where the incident is alleged to have occurred. The Tusla report indicates that all areas of the creche were clearly visible on the day of the inspection. It refers to “a locked storage shed used to store play equipment.” The plaintiff’s solicitor avers that this storage shed is the garden shed where the alleged assault occurred. He avers that this shed was previously in use as a play area for children under the care of the defendant and that it was in operation as a play area at the time of the incident. To substantiate the claim that she and other children were permitted to play in the shed, the plaintiff’s solicitor exhibits a number of photographs of the creche which appear to show that the door of the shed was open and that children were playing inside.

19. The plaintiff therefore argues that the Tusla report, together with the photographs which her next friend has exhibited, demonstrate that the use of the shed has changed since the alleged incident the subject matter of these proceedings. The plaintiff argues that this assists in establishing the relevance and necessity of the inspection order sought in respect of the shed and the CCTV.

20. The second aspect of the Tusla report relied upon by the plaintiff is that it criticises the defendant for failing to keep proper accident report books. The report notes that recording protocol was not followed consistently by staff. The template document to record accidents and incidents as detailed in the creche policy was not used and a copy book was used instead. In addition, the dates and details of the incidents and the children's names were not recorded accurately and consistently. Furthermore, records that parents were informed and had signed or received a copy of each accident or incident were not available.

21. The plaintiff argues that this provides an arguable basis for contending that the defendant does not comply with its statutory obligation to report incidents occurring on its premises and that this establishes both the relevance and necessity of the orders sought.

22. Whilst consenting to the application for preservation, the defendant opposes the plaintiff’s application for inspection. It argues that inspection is the second part in a two part process consisting, firstly of the making of an affidavit of discovery and secondly of a request or application for inspection. The defendant argues that this two-step process is important, inter alia, because it enables the deponent of the affidavit of discovery to claim privilege over the documents or evidence discovered. Any such claim to privilege must then be assessed by the court. The defendant argues that the present application ought to proceed through the usual two stage process.

23. The defendant also argues that as this is an application for pre-pleadings and indeed pre-action inspection, the plaintiff bears a heavy burden in demonstrating both the relevance and necessity of the application, which it is said she has failed to discharge.

Legal principles

24. Section 12 of the 2003 Act provides that, unless and until an application is made to the board and an authorisation obtained, no proceedings may be brought in respect of an intended claim. Section 12 goes on to provide that this is not to be read as affecting the right of a party to invoke the jurisdiction of the court to make any of the orders set out in the section that could otherwise have been made if proceedings were brought or were about to be brought in respect of the relevant claim. The orders referred to are orders of an interlocutory kind provided for by the RSC or otherwise pursuant to the courts inherent jurisdiction and specifically orders requiring evidence to be preserved. The section also provides for the making of applications for such orders by way of a motion on notice grounded on an affidavit swearing, inter alia, that the application is bona fide for the sole purpose of ensuring the fair and just disposition of the intended proceedings and that the making of the order is required for the fair and just disposition of the proceedings. On the hearing of any such application, the court may make any interlocutory order deemed appropriate and may also adjourn or dismiss the application.

25. Order 50 rule 4 of the RSC enables a court, on the application of any party to a cause or matter, and upon such terms as may be just, to order retention, preservation or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein.

26. As noted in Delany and McGrath on Civil Procedure (5th Edn, Round Hall Press 2024), the right of inspection is a facet of the constitutional right of access to the courts. It ensures equality of arms so that one party to litigation will not be disadvantaged in the conduct of the litigation by the fact that the property is under the control of another. An order for inspection may also ensure that the best available evidence is before the court.

27. By definition, however, inspection may impact on the property rights of the defendant.

Accordingly, a balancing exercise is required, and the court will endeavour to ensure that the competing rights of both parties are protected insofar as possible. The proportionality principle, which is firmly embedded in other pretrial procedures, such as discovery applies equally to the closely related order for inspection.

28. In James Elliott Construction Limited v. Lagan [2015] IEHC 631, Costello J. noted that the right to an order for inspection is not dependent on the strength of the case of the party seeking the order. However, the court must be satisfied that the proposed inspection is necessary or expedient for the purposes of obtaining full information or evidence. The requirements of relevance, necessity and expedience are determined by reference to the issues in the proceedings.

29. An order for inspection will generally only be made after the proceedings have closed and the issues in the proceedings have crystallised. In SoftCo v. DHL Information Services (Europe) [2013] IEHC 623, Ryan J. observed that an order for inspection will not be ordered unless the party seeking it establishes a solid ground of reasonable necessity and it would not normally be considered before the pleadings have been closed. It is only at that stage that relevance can be decided. However, such an order can in an appropriate case be made prior to the delivery of a defence or prior to the delivery of a statement of claim.

30. In Ballymore Residential Ltd v. Roadstone Ltd [2017] IEHC 539, Murphy J. rejected the contention that exceptional circumstances were required in order to bring an application for inspection prior to the closure of proceedings, albeit that inspection would not normally be ordered until proceedings were closed.

31. A court will lean in favour of making an order for inspection if it is satisfied that it is necessary for a party to present their case properly and provided that the interests of other parties are adequately protected. Factors to be considered, therefore, include the interests of justice, the avoidance of unnecessary costs, the efficient use of the resources of the courts and the vindication of the plaintiff’s right of access to the court which all must be balanced as against the defendant’s property rights.

32. In the event that the court grants an application for inspection, it will consider what is the least intrusive inspection that would satisfy the plaintiff's need and entitlement to obtain the evidence necessary to enable it to pursue its claim, whilst interfering to the least extent possible with the rights of others.

33. As the plaintiff has also relied upon the principles concerning pre-action discovery, I will also briefly set these out. The basic rule in relation to applications for discovery is that they will not be granted until after a statement of claim and defence have been delivered, because it is not until the pleadings have closed that the issues in dispute between the parties are likely to be clear. This principle that discovery should not be made until the pleadings are closed save in exceptional circumstances has been reiterated by the courts on a number of occasions.

34. However, discovery may be ordered prior to the delivery of a statement of claim in circumstances where it would not otherwise be possible for the plaintiff to properly particularise a comprehensive statement of claim. The rule that discovery ought to await closure of proceedings should give way to the demands of justice where the application is not a fishing expedition and the nature of the plaintiff’s claim has been made clear.

35. It will be apparent that the common thread running through the principles governing applications for both discovery and inspection is that generally same will only be ordered after pleadings have closed and the issues have been crystallized. Although there will be exceptions made where it is established that discovery, or inspection as the case may be, is necessary to enable a party to present their case properly, the onus of proof in this regard remains on the plaintiff and the jurisdiction to order pre-pleadings discovery or inspection must nonetheless be sparingly exercised.

Application of these principles to the present case

36. The terms of O 50 r 4 have been set out. A question arises vis a vis the plaintiff’s application for inspection of the CCTV footage and, in particular, the accident report forms etc. In Re Saxton [1962] 1 WLR 859 Lord Wilberforce accepted that although the equivalent rule in England also referred to “property” it was sufficiently widely drafted to authorise an order for the delivery of any property or thing, including a document for inspection.

37. On the other hand, however in Huddleston v. Control Risks Ltd [1987] WLR 701, Lord Hoffmann distinguished between real property and documents stating that if the application was concerned with ascertaining not the characteristics of a physical object but with the information that object conveys, then the proper course would be to seek discovery.

38. As it is clear that the purpose of the inspection of the CCTV footage and the accident report forms etc., is to ascertain the information they convey, this suggests that the plaintiff ought in the first instance to have sought discovery rather than inspection thereof.

39. This particular issue was not fully argued before me. Therefore, in light of the approach that I outline below to the entirety of this application, I will dwell no further on this potential ground of objection.

40. It goes without saying that the garden shed of which inspection is also sought is undoubtedly “property” within the scope of O 50 r 4. As such, the court has jurisdiction to grant the inspection thereof under s. 12 of the 2003 Act, provided this is required for the fair and just disposition of the proceedings.

41. I am not satisfied that the relevance of any of the three categories of evidence has been adequately established at this stage of the proceedings. Nor am I satisfied that it has been demonstrated that the proposed inspection is necessary or expedient.

42. Whilst the plaintiff’s solicitor avers that her liability expert has indicated that inspection of the items of evidence listed is required to enable her to prepare her report, there is no explanation as to why this is so.

43. I am not satisfied that the Tusla report greatly assists the plaintiff in this application.

44. I consider first the apparent change of use of the garden shed. A change in practice by a defendant in the aftermath of a particular accident or incident will not in and of itself establish negligence or breach of duty. Negligence is to be assessed by reference to the factors existing at the time of the accident. Even if the garden shed has undergone a change of use, this does not establish the plaintiff’s entitlement to the orders sought.

Further, as the defendant has consented to an order for preservation, the defendant may not make any alterations to the condition, positioning or use of the garden shed before the plaintiff has an opportunity, in the fullness of time, to carry out an inspection. The plaintiff will not therefore be disadvantaged by the fact that this property remains in the control of the defendant until the time is ripe for inspection. The same is incidentally the position in relation to the CCTV footage and the accident report forms, etc. In short, I am satisfied that the plaintiff's right to litigate and indeed her right to equality of arms will be properly protected by the preservation of the evidence sought.

45. I turn now to the second aspect of the Tusla report, the inadequate reporting of accidents and incidents. Even if the defendant has been remiss in complying with its obligation to properly record incidents occurring on the premises, this is of no particular relevance to the plaintiff’s application for inspection. Such a state of affairs may potentially be relevant to the plaintiff’s allegations of negligence, but it does not at this stage of proceedings entitle the plaintiff to an order for inspection.

46. The basic alleged facts are set out in the next friend’s affidavit, and whilst those alleged facts are unarguably shocking, it is still generally incumbent upon the plaintiff to set out in general terms the allegations of negligence made against the defendant before seeking discovery or inspection.

47. The plaintiff argues that inspection is required to enable her to properly particularise a comprehensive statement of claim. At present, however, the plaintiff has provided no information at all as to the basic ingredients of her claim that the defendant was negligent. Aside from a statement that the plaintiff was unsupervised at the time of the incident, the nature of the plaintiff’s claim has not been specified. Whilst the court could perhaps take an educated guess, the onus of proof is on the party seeking pre-pleadings discovery and I am not satisfied that this onus has been discharged.

48. Equally, of course, the court has no appreciation whatsoever of the defendant’s potential defence to this claim.

49. A court will permit inspection if satisfied that this is necessary to enable a party to plead their case. However, I have concluded that, in the present case, it will not be possible to ascertain the relevance of the evidence sought to the matters in issue between the parties until the plaintiff has set out the broad nature of her claim and the defendant has joined issue.

50. It seems to me that the plaintiff has not established that the inspection sought is required either to the high standard of exceptionality or to a lower standard of establishing relevance to the matters in issue and general necessity. Quite simply, the matters in issue between the parties to these proceedings have not yet crystallised. As such, it is not possible to hold at this juncture that the inspection is relevant, necessary or expedient.

51. It is therefore necessary that the broad nature of the plaintiff’s allegations of negligence and breach of duty are pleaded and, indeed that the defendant’s response thereto is also pleaded before inspection is further considered in this case.

52. Once the parties have joined issue, then, if the defendant disputes liability, it is likely that the evidence sought in this application will be relevant to the matters in issue in the proceedings and, furthermore that the inspection currently sought will be established as being necessary and expedient.

53. I therefore conclude that the application before me for inspection is premature.

However, the present application can be renewed following the exchange of pleadings.

Accordingly, rather than dismiss the current application, I will make an order adjourning the within application with liberty to re-enter once pleadings are closed. I will also defer any issue of costs until that time.