In the decision of the High Court in M v T [2025] IEHC 623, Judge Emily Egan refused to order a pre-pleading inspection sought under Order 50 of the Rules of the Superior Courts (RSC) and/or section 12 of the Personal Injuries Board Assessment Act 2003 (the 2003 Act).
Background
The plaintiff sought a pre-litigation order directing the intended defendant to preserve certain evidence pending inspection by the plaintiff’s expert and secondly, an order directing the defendant to produce this evidence for inspection by the plaintiff.
The plaintiff, no eight years old, was attending the intended defendant’s creche. The plaintiff alleges that, on a date in September 2022, when she was five years of age, she was sexually assaulted by another child, of roughly the same age, who was also attending the creche. The plaintiff’s next friend alleges that this occurred when the plaintiff and a number of other children, who had been left unsupervised.
The plaintiff sought orders for preservation and inspection of evidence as follows:
- The garden shed in which the incident of sexual assault is alleged to have occurred
- Any CCTV footage in respect of the incident
- The accident report forms, incident report forms, witness statements, and contemporaneous notes and records in respect of the incident
Legal arguments
The plaintiff’s next friend argued that in light of the young age of the plaintiff at the time of the alleged assault there may be a difficulty in taking instructions in relation to what occurred on the day of the alleged assault and that the inspection sought was necessary in order to enable proceedings to be drafted.
The defendant consented to the application for preservation, but opposed the application for inspection. The defendant argued that in respect of the CCTV and other documentation, this was a matter for discovery. The defendant also argued that as this is an application for pre-pleadings and indeed pre-action inspection, the plaintiff bears a heavy burden in demonstrating both the relevance and necessity of the application to inspect evidence at pre-litigation stage.
Law
Order 50 rule 4 of the RSC enables a court, on the application of any party to a cause or matter, and upon such terms as may be just, to order retention, preservation or inspection of any property.
Section 12 of the 2003 Act upholds the right of a party to invoke the jurisdiction of the court to make any of the orders provided by Order 50 of the RSC that could otherwise have been made if proceedings were brought or were about to be brought in respect of the relevant claim.
Application
In refusing an order for inspection as being "premature", the court held that aside from a statement that the plaintiff was unsupervised at the time of the incident, the nature of the plaintiff’s claim had not been specified. Specifically Judge Egan stated it was not possible to ascertain the relevance of the evidence sought to the matters in issue between the parties until the plaintiff had set out the broad nature of her claim.
This case demonstrates that a plaintiff must demonstrate that there is a “solid ground of reasonable necessity” for pre-litigation inspection facilities to be ordered. It also indicates that the matters issue between parties to proceedings should be crystallised at pre-pleading stage in order to allow the court to determine if an inspection is relevant, necessary or expedience.
The case acts as a useful reference to defendants/insurers/claim handlers when considering the merits of a pre-litigation request for inspection. If the issues between the parties are not clear at a pre-litigation stage, then it is apparent that pre-litigation inspection requests designed to assist in the preparation of proceedings can be challenged robustly.
