Clarke v Saint Patrick's Guild [Incorporated][In Liquidation] & Ors (Approved)

Factual and Procedural Background

This case concerns a claim by the Plaintiff that he was unlawfully placed for adoption as an infant through the falsification of birth records, including the procurement of a false birth certificate. The first Defendant is a former adoption society alleged to have arranged the illegal adoption. The fifth Defendant is sued as a nominated representative of a religious order, alleged to have managed the first Defendant at all material times. The second, third, and fourth Defendants (the State defendants) are sued partly on the basis that they failed to protect the Plaintiff's constitutional rights, despite being aware or having reasonable grounds to suspect the involvement of the first and fifth Defendants in illegal adoptions.

This judgment specifically concerns an application by the fifth Defendant for further and better discovery against the State defendants. An initial discovery order was made on 30 January 2024, with an agreed scope allowing reliance on discovery across multiple related cases. The discovery period was extended multiple times by consent, with documents produced on a rolling basis, culminating in a final set on 11 November 2024. The fifth Defendant raised concerns about deficiencies and privilege claims in the discovery, leading to a motion for further and better discovery heard in June 2025. The State defendants also issued a discovery motion against the fifth Defendant, which was largely agreed except for costs. The court awarded the fifth Defendant 50% of the costs of that motion, stayed pending the proceedings.

Legal Issues Presented

1. Whether the fifth Defendant has established reasonable grounds to believe that further relevant documents exist and have not been disclosed by the State defendants in response to the discovery order.
2. Whether the State defendants have complied adequately with their discovery obligations, particularly concerning documents related to the prosecution of an individual involved in facilitating illegal adoptions at a nursing home.
3. The scope and appropriateness of further and better discovery in light of the parties’ submissions and the evidence from the Commission’s Report and other sources.

Arguments of the Parties

Fifth Defendant's Arguments

• Discovery by the State defendants was inadequate in five specific categories of documents, including one concerning prosecution files related to illegal adoptions.
• The State defendants improperly asserted privilege over a document previously disclosed unredacted to the Commission, which should not be privileged.
• Based on the Commission’s Report and media articles, there are reasonable grounds to believe additional relevant documents exist but have not been disclosed.
• The Department of Foreign Affairs failed to search for relevant documents relating to the prosecution, improperly leaving this to the Department of Health.
• Tusla likely holds admission and discharge records for the nursing home beyond those disclosed, especially for the years 1962-1963, which remain undisclosed and unexplained.

State Defendants' Arguments

• Initially opposed further discovery and maintained claims of privilege over certain documents.
• Asserted compliance with discovery obligations, including disclosure of the document provided to the Commission.
• Noted that the Garda prosecution file has been lost, as acknowledged in the Commission’s Report.
• Outlined the methodology used by each State entity in conducting discovery.
• Denied that the Department of Foreign Affairs had relevant documents related to the prosecution, as their enquiries focused on other aspects.

Table of Precedents Cited

Court's Reasoning and Analysis

The court distinguished the standards for initial discovery from those for further and better discovery, emphasizing that the moving party must establish reasonable grounds to believe additional relevant documents exist beyond those already disclosed. The court found that although the Garda prosecution file has been lost, this loss should be formally reflected in an affidavit of discovery.

The court accepted that documents likely exist or existed within the Department of Foreign Affairs and the Dublin Health Authority (now the Health Service Executive) that have not been adequately searched for or disclosed. The court found that the approach taken by the State defendants—particularly the Department of Foreign Affairs not searching for prosecution-related documents—was insufficient and not made in good faith.

Regarding Tusla, the court noted inconsistencies between the records disclosed and those referenced in the Commission’s Report, warranting a further affidavit of discovery to clarify the existence and relevance of admission and discharge records for the nursing home for 1962-1963.

The court clarified that any order for further discovery would be without prejudice to legitimate claims of privilege over newly discovered documents.

The court also observed that much of the discovery sought was related to establishing the State defendants’ awareness of illegal adoption practices, which is a contested issue in the proceedings. It suggested that if the State defendants formally accept general awareness of such practices, the scope of discovery could be significantly reduced.

Ultimately, the court concluded that the fifth Defendant had met the burden to justify an order for further and better discovery concerning the remaining disputed category of documents.

Holding and Implications

The court ordered further and better discovery by the State defendants in respect of the remaining category of documents related to the prosecution of an individual involved in illegal adoptions and related records held by relevant State entities.

The order acknowledges deficiencies in the State defendants’ prior discovery and directs additional searches and disclosures, including formal affidavits clarifying lost or undisclosed documents. The ruling is procedural in nature and does not establish new legal precedent but affects the parties by expanding the scope of discovery to ensure compliance with discovery obligations and facilitate resolution of factual disputes in the underlying claims.

The court scheduled a further hearing to make final orders on the application.