High Court — Summary of Judgment by Judge Egan

Factual and Procedural Background

The Plaintiff (an infant who is presently eight years old) seeks two interlocutory orders prior to the commencement of proceedings: (1) an order directing the Defendant to preserve certain evidence and (2) an order directing the Defendant to produce the preserved evidence for inspection. The intended claim arises from an alleged sexual assault on a date in September 2022, when the Plaintiff was five years old, while attending the Defendant's childcare facility. The Plaintiff's next friend alleges the assault occurred while a number of unsupervised children were playing in a shed located in the creche's garden ("the garden shed").

The Plaintiff seeks preservation and inspection of three categories of evidence: (a) the garden shed where the incident allegedly occurred, (b) any CCTV footage relating to the incident, and (c) accident/incident report forms, witness statements and contemporaneous records relating to the event. The Plaintiff's solicitor's correspondence requesting preservation and inspection received no substantive response; the Defendant has instructed solicitors and counsel. At the hearing the Defendant consented to preservation orders but opposed the application for inspection. The Plaintiff grounded the motion on Order 50 rule 4 of the Rules of the Superior Courts and section 12 of the Personal Injuries Assessment Board Act 2003.

The Plaintiff relied in part on an inspection report prepared by a regulatory body following a complaint by the Plaintiff's parents (referred to in the judgment as the regulatory inspection report). The Plaintiff also exhibited photographs said to show children using the garden shed at the relevant time. Counsel for both parties applied for reporting restrictions and the court made a section 27 order to protect the Plaintiff's anonymity.

Legal Issues Presented

1. Whether the court should make an order under section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting publication or broadcast of any matter likely to identify the Plaintiff.
2. Whether the court should, under section 12 of the 2003 Act and Order 50 rule 4 RSC, order preservation of the three categories of evidence identified by the Plaintiff.
3. Whether the court should order inspection (production for inspection) of those categories of evidence prior to the exchange of pleadings (i.e. whether pre-pleadings inspection/discovery should be permitted in the circumstances).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff says the alleged sexual assault occurred while children were unsupervised in the garden shed of the Defendant's creche and that inadequate supervision is a central element of the liability case.
• The Plaintiff's liability expert has advised that inspection of the garden shed, CCTV footage and accident/incident records is necessary for the expert to prepare a liability report and to enable proper pleading of the claim.
• The Plaintiff relies on a regulatory inspection report (the regulatory agency's report) and photographs which, the Plaintiff alleges, demonstrate that the garden shed was used as a play area at the relevant time and that there have been deficiencies in the Defendant's record-keeping for accidents and incidents; these matters are said to support relevance and necessity for inspection and discovery.
• The Plaintiff contends inspection is necessary because, given the Plaintiff's young age at the time of the event, there may be difficulty in taking instructions and inspection is required to enable a comprehensive statement of claim to be drafted (invoking pre-pleadings discovery principles).

Defendant's Arguments

• The Defendant consents to preservation of the evidence but opposes pre-pleadings inspection.
• The Defendant submits that the proper procedural route is a two-step process: (i) affidavit of discovery, and (ii) an application for inspection; this permits claims of privilege to be made and assessed by the court. The Defendant argues the present application should proceed by the usual two-stage route.
• The Defendant contends the Plaintiff bears a heavy burden to show relevance and necessity for pre-action inspection and that the Plaintiff has not discharged that burden.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in a structured manner. It first addressed anonymity and reporting restrictions under section 27 of the Civil Law (Miscellaneous Provisions) Act 2008. The Plaintiff's affidavit alleged physical and psychiatric injury arising from the sexual assault; the court concluded that publication identifying the Plaintiff as a person with that medical condition would likely cause undue stress and that an order restricting identification would not be prejudicial to the interests of justice. Accordingly, the court made a s.27 order precluding publication or broadcast of any matter likely to identify the Plaintiff (including identifying the name of the Defendant creche).

Turning to the substantive interlocutory relief, the court identified the governing statutory and procedural bases: section 12 of the Personal Injuries Assessment Board Act 2003 permits court orders (including preservation orders) before an application to the Board, and Order 50 rule 4 RSC enables retention, preservation or inspection of property or things relevant to a cause.

The court summarised and applied settled principles concerning inspection and pre-action discovery: inspection is a facet of access to the courts and equality of arms, but it may affect property rights and thus requires a proportional balancing exercise; generally inspection and discovery are ordered after pleadings have crystallised, though there are exceptions where pre-pleadings relief is necessary to allow proper pleading. The court cited authorities to show that the applicant must demonstrate relevance, necessity and expedience (or, in exceptional cases, a sufficient justification for pre-closure relief).

Applying those principles to the facts before it, the court made the following analytical points drawn from the judgment:

• The garden shed is plainly "property" within Order 50 rule 4 and thus within the court's jurisdiction to inspect (subject to the section 12 constraints and the requirement of necessity for fair and just disposition).
• CCTV footage and accident report forms are principally informational; Huddleston suggests that discovery may be the appropriate route where the object is to obtain the information those materials convey. The court observed but did not determine this issue fully, noting it was not fully argued.
• The Plaintiff had not demonstrated adequate relevance or necessity at this stage. Although the Plaintiff's liability expert had said inspection was needed, the affidavit did not explain why inspection was necessary to prepare the expert report.
• The regulatory agency's inspection report (the "Agency A" report) and photographs did not, in the court's view, establish entitlement to inspection. A change in the shed's use after the incident does not itself prove negligence; and the Defendant's consent to preservation meant that the Plaintiff's rights would be protected while the matter proceeded.
• Allegations that the Defendant's record-keeping was poor (as noted in the regulatory report) might be relevant to negligence at trial but did not, without more, justify inspection pre-pleadings.
• The Plaintiff had not fairly particularised the basic ingredients of a negligence claim in general terms; apart from stating that the Plaintiff was unsupervised, no sufficient detail of the alleged breaches was set out so as to allow the court to assess the relevance of the materials sought. The court also had no appreciation of the Defendant's potential defences, which inhibits assessment of necessity and proportionality.

On balance, these considerations led the court to conclude that inspection was premature. The court emphasised the onus on a party seeking pre-pleadings inspection/discovery and the need for the court to exercise the jurisdiction sparingly.

Holding and Implications

Core Rulings:

• An order under section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 was made precluding publication or broadcast of any matter which would, or would be likely to, identify the Plaintiff.
• The Defendant's consent to preservation was noted and preservation of the evidence sought is ordered (the Defendant had consented to preservation).
• The Plaintiff's application for inspection of the garden shed, CCTV footage and accident/incident records is adjourned as premature, with liberty to re-enter the application once pleadings have closed; the court deferred any issue of costs until that time.

Implications:

• Direct effect: The Defendant must preserve the specified evidence. The Plaintiff cannot obtain inspection at this stage; the Plaintiff may renew the inspection application after pleadings have been exchanged and issues crystallised. Costs are deferred pending any renewed application.
• The s.27 anonymity order protects the Plaintiff's identity in reporting. The judgment itself was published in a way that respects the Plaintiff's anonymity, consistent with the court's view that public justice is maintained while protecting the Plaintiff's medical privacy.
• No new or expanded legal principle was established by the judgment; the court applied existing authorities and procedural principles to the specific facts and concluded that pre-pleadings inspection was not justified on the material before it. The decision therefore determines the interlocutory application on the facts rather than announcing a novel rule.

Prepared from the judgment as delivered by Judge Egan on 28 October 2025. All parties and sensitive identifying details have been anonymised in this summary in accordance with the source judgment's reporting restrictions.