How documents are obtained from the other side, and what must be disclosed in return
Introduction
Much of the evidence in a personal injury claim is in the hands of the defendant. The employer holds the risk assessment, the training records and the maintenance log; the shop holds the cleaning schedule and the CCTV; the hospital holds the chart. Discovery is the procedure by which a party to litigation obtains documents held by the other side, and it is frequently decisive.
It operates in both directions. The defendant is equally entitled to the plaintiff’s medical records, employment records and evidence of loss, and the plaintiff’s obligation to disclose is as strict as the defendant’s. This guide explains how discovery works, what can be withheld, and how the process is likely to change.
The Law
Discovery is governed by Order 31 of the Rules of the Superior Courts and the corresponding Circuit Court rules. After the pleadings have closed, a party may request discovery of categories of documents which are relevant to the issues in the case and necessary for its fair disposal or for saving costs. The request must specify the categories and explain why each is relevant and necessary. If the other party does not agree, the court may order discovery on a motion. The party making discovery swears an affidavit listing the documents in its possession, power or procurement, and must produce them for inspection.
Certain documents may be listed but withheld on the ground of privilege. Legal advice privilege protects confidential communications between a party and its lawyers for the purpose of giving or receiving legal advice. Litigation privilege protects documents created for the dominant purpose of litigation that was reasonably apprehended, which commonly includes accident investigation reports prepared for insurers. A claim of privilege can be challenged, and a court may inspect the document to decide it. A report prepared for a purpose other than litigation, such as routine safety monitoring or compliance with the reporting regulations, is not privileged merely because it later becomes relevant to a claim.
A plaintiff has independent means of obtaining some documents. A data subject access request under the GDPR entitles a person to their own personal data, including CCTV footage in which they appear and records held by an employer or a medical provider, without litigation. A Norwich Pharmacal order may be obtained from the High Court to compel a third party to identify a wrongdoer whose identity is unknown.
The General Scheme of the Civil Reform Bill 2025 proposes to replace discovery with a production of documents regime under which each party would produce the documents it intends to rely on within weeks of the claim, with further production on application. If enacted, this will bring disclosure forward to the start of the case.
Practical Steps
In a workplace claim the categories usually sought are the accident report and accident book entry, the risk assessment and safety statement, training records for the plaintiff and the task, maintenance and inspection records for the equipment, previous complaints or incidents involving the same hazard, and CCTV. In a public liability claim they are the cleaning and inspection schedules, incident logs, CCTV and any prior complaints about the hazard. In a medical negligence claim the records and the hospital’s own incident review are central.
Discovery is expensive and the courts require it to be proportionate. Requests should be specific and targeted rather than sweeping. A data access request, made early and at no cost, will often produce the most important documents before discovery is reached.
The plaintiff’s own discovery must be complete. Medical records of all treatment, including treatment for prior conditions and prior accidents, will be sought, and the affidavit of discovery is sworn. A plaintiff who omits records that later emerge faces the inference that they were concealed, and the High Court has dismissed claims where discovery revealed accidents the plaintiff had not disclosed.
Keep the documents that support the claim organised from the outset: medical reports, receipts, payslips, correspondence and photographs. A well-ordered file makes the plaintiff’s discovery straightforward and the defendant’s challenges to it difficult.
Takeaway
Discovery is the mechanism by which the documentary truth of an accident is established, and in many cases it determines the outcome before any witness gives evidence. A plaintiff who uses it well obtains the employer’s or occupier’s own record of what was and was not done.
The obligation is reciprocal and the courts enforce it strictly on both sides. The plaintiff who discloses everything, including the unhelpful, is in a far stronger position than the plaintiff who is found to have withheld something, because the credibility of the whole claim rests on the completeness of the record.
Further information
This article was prepared for informational purposes only. For further advice, please email workclaim@crushell.ie or contact the offices of Crushell & Co Solicitors.
About Crushell & Co
Crushell & Co is a specialist firm advising on the application of law in the Irish workplace.
Our Dublin-based solicitors have particular expertise in workplace injury litigation, regularly acting on behalf of employees who have suffered injuries arising from unsafe systems of work, inadequate training, or failures in workplace safety procedures.
We understand that a workplace injury can have serious consequences for an individual’s health, livelihood, and financial security. We work closely with our clients to identify the root causes of workplace accidents, gather the necessary evidence, and advance strong, well-supported claims for compensation.
We are experienced in pursuing workplace injury claims through the Courts and achieving meaningful outcomes for injured workers, while providing clear and practical guidance at every stage of the process.
We translate complex legal issues into practical legal options, adapting our strategy to meet each client’s specific circumstances and objectives.
Connect: @CrushellLaw or www.crushell.ie
