The Court of Appeal dismissed Helen Ring’s appeal against a High Court order striking out her discovery motion, but varied the order to allow limited discovery from surgeon David Mulcahy in three categories.
The dispute arose from a personal injuries action against Mulcahy and Bon Secours Hospital, Bon Secours Health System. Ring alleged that she underwent a right knee replacement in November 2008 after receiving advice from Mulcahy, developed an infection and continued to have pain. She later underwent revision surgery in November 2010. Her right lower limb was amputated above the knee in October 2011. Her action alleges that she was not properly informed before surgery and that the defendants were negligent. These were claims described in the judgment, not findings made in this appeal.
The discovery motion against Mulcahy sought five categories of documents. The hospital had already been ordered in October 2013 to provide discovery in the first three categories. The High Court struck out the motion after concluding that the plaintiff’s affidavit did not address what the hospital had disclosed and that ordering discovery again risked duplication.
Giving judgment on 20 April 2015, Mr Justice Kelly said discovery must be relevant, necessary, proportionate and unavailable from another source. He said Mulcahy was willing to disclose any documents in the first three categories that went beyond what the hospital had already provided. The court confined discovery in those categories to that additional material relevant to the issues to be tried.
The court did not allow category five, which sought documents about complaints made against Mulcahy as a medical practitioner before the matters complained of. Kelly J. held that the request was not relevant to the pleaded issues, was not necessary and was framed without adequate limits. Category four had been agreed by letter in January 2014 and did not require a decision on the appeal.
The court therefore dismissed the appeal subject to varying the High Court order for categories one to three. Justices Irvine and Hogan agreed. Irvine J. said the motion should have been narrowed to account for the hospital’s discovery, noting duplication could add costs, slow proceedings and place pressure on defendants and Health Service resources.