Re-defining “Reasonable Grounds” for Further and Better Discovery in Illegal-Adoption Litigation
Commentary on Clarke v Saint Patrick's Guild (In Liquidation) & Ors [2025] IEHC 374

1. Introduction

The High Court decision of Mr Justice Rory Mulcahy in Clarke v Saint Patrick’s Guild (In Liquidation) & Ors adds a significant layer to Irish discovery jurisprudence, particularly in the burgeoning body of “illegal-adoption” cases arising from the activities of historic mother-and-baby institutions.

The plaintiff, Aloysius Clarke, alleges that he was secretly and unlawfully adopted through falsified records orchestrated by Saint Patrick’s Guild and members of the Religious Sisters of Charity (the fifth defendant, “KL”). He further claims the Irish State (Ireland, the Attorney General and the Adoption Authority of Ireland – “the State defendants”) had knowledge, or at least constructive knowledge, of systemic illegal adoptions and failed to vindicate his constitutional rights.

The judgment considered only a procedural – yet pivotal – aspect: KL’s motion for further and better discovery against the State defendants. Although the parties resolved most areas of dispute, one category (Category 1.3 – documents relating to a 1950s criminal prosecution tied to illegal adoptions) remained contested. Justice Mulcahy ultimately compelled additional discovery, articulating what now stands as a recalibrated test for “reasonable grounds” when the resisting party has already sworn comprehensive discovery affidavits.

2. Summary of the Judgment

• The Court acknowledged substantial prior cooperation and rolling discovery but noted “significant deficiencies” in the State’s production (paras 31-32).
• Adopting and refining principles from Sterling-Winthrop Group Ltd v Farbenfabriken Bayer AG [1967] IR 97, the Judge held that a moving party must show reasonable grounds for believing undisclosed documents exist—but that this burden is met where:
  • the opposing affidavits indicate gaps;
  • contemporaneous material (e.g., the Mother and Baby Homes Commission Report) cross-refers to unproduced documents; or
  • institutional search methodologies were demonstrably deficient (paras 26-29).
• He ordered the State defendants to:
  • conduct fresh searches in the Department of Foreign Affairs, the HSE (as successor to Dublin Health Authority), An Garda Síochána and Tusla for Category 1.3 documents;
  • explain, via sworn affidavits, any loss or non-existence of such records; and
  • reserve all claims of privilege to later affidavit(s) (para 30).
• Costs: KL was already awarded 100 % costs for its own motion (with a stay), and 50 % costs on the State’s resolved motion.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Sterling-Winthrop v Bayer (1967) remains the touchstone for further discovery applications. Justice Mulcahy repeats Kenny J’s four “gateways” for suspecting undiscovered documents but emphasises a modern, dynamic application:

• Pleadings – Here, the State itself placed its “lack of knowledge” issue centre-stage via a Notice of Indemnity & Contribution (para 33), rendering documents about historic awareness inherently relevant.
• Affidavits already filed – Tusla’s affidavit referenced only 1947-1961 records, contrasting with evidence of 1962-1963 records cited in the Commission Report (para 18).
• Documents referred to in discovery – The single discovered memo indicated Garda involvement yet the Garda investigation file was “lost” without affidavit explanation (paras 16-21).
• Admissions by the discovering party – Mr Malone conceded Department of Foreign Affairs did not search its own archives for Category 1.3 (para 22).

The Court also echoed dicta in Ryanair plc v Aer Rianta [2003] 4 IR 264 and Themehelp Ltd v West [1995] 3 IR 115 concerning proportionality and necessity, but those were implicit rather than explicit citations.

3.2 The Court’s Legal Reasoning

1. Burden of Proof & “Reasonable Grounds” – The Court reiterated that once a full affidavit is sworn, the moving party must do more than express scepticism. But Justice Mulcahy found that KL pointed to concrete documentary trails (Commission Report paragraphs 32.404-32.419, Garda reports, Health Authority reviews, Departmental memos) establishing a prima facie likelihood of undisclosed records.
2. State-Entity Fragmentation – The judgment highlights a systemic issue: multiple State organs undertook disjointed searches. Mulcahy J emphasised that collective discovery obligations cannot be compartmentalised—a single composite defendant must coordinate cross-departmental searches.
3. “Lost” Files and Affidavit Candour – Accepting that the Garda file may no longer exist does not absolve the State. The loss must be “properly reflected” in an affidavit, detailing search steps, rather than a bare assertion (para 27).
4. Proportionality – Ordering additional discovery is not “unduly onerous” when limited, targeted searches can be executed (para 27). The Court balanced the burden against the centrality of the information to liability issues.
5. Privilege Preservation – By allowing the State to keep privilege objections alive (para 30), the Court maintained procedural fairness while ensuring the searches occur.

3.3 Impact on Future Litigation & Legal Practice

• Illegal-Adoption Cases – The judgment virtually guarantees that plaintiffs (or co-defendants like KL) will invoke its reasoning in the suite of similar actions pending against religious orders and the State. The “reasonable grounds” threshold is now more attainable where plaintiff groups can leverage the Mother and Baby Homes Commission archive.
• State-Side Discovery Protocols – Government defendants must institute centralised, inter-departmental discovery teams lest they face iterative motions and adverse cost orders.
• Lost or Historic Records – Affidavit practice will evolve: deponents must exhibit detailed “missing file” narratives (search chronology, repository logs, destruction certificates) to escape further discovery orders.
• Settlement Dynamics – By insinuating that a concession about “general awareness” could have drastically narrowed discovery (paras 35-36), Justice Mulcahy signalled to parties that strategic narrowing of issues can mitigate litigation cost and delay.
• Precedential Value Beyond Adoption Law – Any complex, multi-agency litigation (environmental claims, historic abuse cases, banking scandals) can cite the decision when challenging piecemeal State discovery.

4. Complex Concepts Simplified

Discovery

The pre-trial process whereby each party lists and, where necessary, produces all documents relevant to the issues, regardless of whether they help or hinder its own case.

Further and Better Discovery

A follow-on motion alleging the first discovery was incomplete or inadequate. The applicant must show “reasonable grounds” that additional documents exist.

Affidavit of Discovery

A sworn statement by a party (or authorised officer) listing documents in defined categories, distinguishing those produced, those withheld on privilege, and those no longer in existence.

Litigation Privilege

The right to withhold documents created for the dominant purpose of anticipated or ongoing litigation.

Notice of Indemnity & Contribution

A procedural document whereby a defendant seeks to shift liability (or a proportion of it) to a co-defendant or third party.

5. Conclusion

Clarke v Saint Patrick's Guild cements an evolved standard for ordering further and better discovery in Ireland. Justice Mulcahy’s ruling underscores that:

• “Reasonable grounds” can be pieced together from historical inquiries, media accounts, and cross-departmental inconsistencies;
• State defendants must coordinate holistic searches rather than siloed departmental sweeps;
• Lost files require rigorous, transparent explanation under oath; and
• Strategic agreement on uncontested factual matters can dramatically curtail discovery burdens and costs.

Beyond its procedural contribution, the decision reflects the Court’s responsiveness to the unique evidential challenges in historic wrongs litigation—where the documentary trail is decades old, fragmented, and often politically charged. The judgment thus functions as both a procedural roadmap and a cautionary tale: thorough, candid discovery is not optional; it is a foundational duty that shapes the fairness and efficiency of justice.