Court of Appeal: Appeal against order granting discovery of medical records dismissed

Court of Appeal: Appeal against order granting discovery of medical records dismissed

The Court of Appeal has dismissed an appeal against a High Court order granting discovery of post-accident medical records in a personal injuries claim.

Delivering judgment for the Court of Appeal, Ms Justice Nuala Butler commented that “a party who wishes to rely on the availability of other procedural mechanisms within the litigation to avoid the need to make discovery cannot simultaneously decline to engage or consistently oppose their opponent’s attempts to use those mechanisms”.


The appellant claimed to have suffered personal injuries on the respondent’s premises, a livestock mart, when a bullock owned by a third party collided with his left leg.

The respondent denied vicarious liability for the bullock and alleged contributory negligence on part of the appellant, as he was standing in a part of the mart where animals were kept and through which they moved.

The appellant issued proceedings on 15 April 2020, and four years later delivered updated particulars of personal injury which detailed his attendance at and the opinion of a consultant orthopaedic surgeon. The particulars claimed that the appellant’s lower limb pain was likely caused both by his soft-tissue leg injury and by a compression of the nerves in his lower spine.

The respondent sought discovery of the appellant’s medical records on 14 February 2022, requesting five years pre-accident records in the first category, and five months post-accident records in the second category.

No reply was received, and so the respondent issued a motion for discovery on 14 September 2022. The appellant then agreed to provide the first category of discovery, but refused to provide the second category. The motion proceeded in the High Court, seeking the second category of discovery only.

The High Court

The trial judge summarised the issue as “should a plaintiff in a personal injuries case be entitled to deny a defendant sight of his post-accident medical records, even though these are the best evidence of the alleged injuries?”

Expressing the view that the post-accident records were “more likely to be relevant to the proceedings” as the “best evidence” of the plaintiff’s medical condition following the accident, the trial judge decided that post-accident records were relevant and “invariably crucial to every personal injuries claim” and granted the order sought. The appellant appealed.

The Court of Appeal

Observing that the respondent did not seek to assert that post-accident medical records should be generally discoverable, the Court of Appeal noted that it advanced an “exceptional” feature in support of its discovery request — the late delivery of updated particulars of personal injury which alerted the respondent to the possible link to the appellant’s pre-existing back condition.

Remarking that since McGrory v. ESB [2003] 3 IR 407 it is well-established that a plaintiff’s right to privacy over their medical records is waived when suing for damages for personal injuries, the court found that it could not be said that the jurisprudence supported any proposition that discovery of post-accident medical records should be refused save in exceptional cases.

Finding that the trial judge’s comment that post-accident records are “invariably crucial” to every personal injury claim was an over-generalisation, Ms Justice Butler commented that “there is no category of documentation that is invariably crucial in every case within a particular area of litigation”.

Turning to the necessity for the discovery of the appellant’s medical records, Ms Justice Butler noted the observations in Dunnes Stores v. McCann [2018] IEHC 123 concerning the relatively few cases in which the courts accepted that the availability of alternative means of obtaining information precluded obtaining discovery.

Ms Justice Butler highlighted the various statutory means of obtaining information, such as freedom of information and data access requests, finding that “assuming the information can and will be made available in a timely manner, the need to make discovery of the same material will be commensurately reduced”.

Distinguishing the position in respect of litigants resisting discovery by pointing to alternative procedures under the Rules of the Superior Courts, the court opined that in the case before her, had the appellant provided more detail concerning his medical attendances and treatment, then he might have been more able to resist the discovery request.

Ms Justice Butler continued, warning that where a party contends that alternative mechanisms for obtaining information should be relied upon in lieu of discovery, that party cannot then decline to engage with those mechanisms or repeatedly oppose the use of them.

The court then considered the appellant’s three legal arguments concerning necessity, firstly the contention that the respondent’s reasons for seeking discovery were too vague and general. Ms Justice Butler agreed with the respondent that “the significant alteration in the plaintiff’s pleaded case apparent from the updated particulars of personal injury provides the ‘evidential indicator’ that the records are necessary”.

Rejecting the proposition advanced by the appellant and set out in Power v. Tesco Ireland Limited [2016] IEHC 390 that the discovery of medical records needs to be based on the view of a medical expert, the court stressed: “The availability of discovered material is to facilitate a party in preparing for trial. Thus, the need for that material is more properly identified by a lawyer than by a medical expert and must in any event be determined by the court…”

Addressing the appellant’s arguments that the respondent is entitled to have the appellant independently medically examined, would be provided with the medical reports to be relied upon by the appellant and would be entitled to cross-examine the plaintiff’s witnesses, Ms Justice Butler highlighted that “if discovery of medical records is necessary, the fact that a plaintiff may call relevant medical witnesses and provide some or all of the relevant records and reports does not obviate that necessity”.

Finally, the court considered the appellant’s contention that the respondent could seek information concerning his pre-existing conditions using interrogatories, observing: “It is, in my view, difficult to see how a ‘yes’ or ‘no’ answer to that question could provide the defendant with the more nuanced information sought by way of discovery of the plaintiff’s medical records.”


Dismissing the appeal and endorsing the reasons set out at paragraph 19 of the High Court judgment, Ms Justice Butler awarded costs in favour of the respondent.

Egan v. Castlerea Co-operative Livestock Mart Limited [2023] IECA 240

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