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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Abdelaatti v College of Anaesthesiologists or Ireland & Ors (Approved) [2025] IEHC 200 (09 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC200.html Cite as: [2025] IEHC 200 |
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APPROVED [2025] IEHC 200
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THE HIGH COURT
JUDICIAL REVIEW
2022 733 JR
BETWEEN
AHMED ABDELAATTI
APPLICANT
AND
COLLEGE OF ANAESTHESIOLOGISTS OF IRELAND
MEDICAL COUNCIL
MINISTER FOR HEALTH
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr. Justice Garrett Simons delivered on 9 April 2025
1. This judgment addresses two procedural motions as follows. The first is a motion seeking the discovery of documents. The second is a motion seeking the delivery of further and better particulars. The only issue outstanding in respect of this latter motion is the incidence of legal costs.
2. The disagreement between the parties in relation to the discovery of documents centres on whether the categories sought are "relevant" and "necessary". It is requisite, therefore, to examine the pleadings in the proceedings with a view to identifying the nature and extent of the issues in dispute.
3. The proceedings seek to challenge the current regime for the training and accreditation of specialist doctors. There are a number of pathways by which a doctor can obtain registration in the specialist division of the register of medical practitioners. Section 47(1) of the Medical Practitioners Act 2007 provides, in relevant part, as follows:
"The Council shall, in accordance with the relevant criteria specified in rules made under section 11, register in the Specialist Division the following medical practitioners: [...]
(b) every medical practitioner who is granted evidence of satisfactory completion of specialist training by a body approved under section 89(3)(a)(ii);
[...]
(f) any medical practitioner who satisfies the Council that the practitioner has completed a programme of training and has acquired sufficient experience in specialised medicine of a standard considered by the Council to be adequate for the purposes of registration in the Specialist Division."
4. The Applicant has been entered on the specialist register pursuant to the mechanism under section 47(1)(f) (above). The Applicant has been granted a Certificate of Specialist Doctor.
5. The Applicant claims that he is entitled to be granted a Certificate of Satisfactory Completion of Specialist Training in Anaesthesiology in circumstances where, or so it is asserted, he has completed six years of specialist training under the supervision and guidance of the College of Anaesthesiologists of Ireland ("the College") and the Medical Council.
6. The core of the Applicant's case is that it is impermissible for the Respondents to provide a dual certification of doctors in the Irish State. It is said that the European Directive on the recognition of professional qualifications (Directive 2005/36/EC) stipulates that the certification of doctors ought to be harmonised and that it is not, therefore, permissible for the Irish State to certify its own doctors with a title and designation of qualification recognised inside the Irish State under the guise of those doctors receiving on-scheme training, and then separately to certify non-scheme trainees, who are, on the Applicant's argument, also trained within the Irish State, with a different title and designation of qualification used solely outside of the Irish State.
7. This claim is denied by the Respondents. It is contended that the Applicant has conflated two distinct certificates, namely a Certificate of Satisfactory Completion of Specialist Training ("CSCST") and a Certificate of Specialist Doctor ("CSD"). The Medical Council describes the function of a CSD as being for the purposes of evidencing that an individual has met the minimum standards of training and experience set down in Article 25 and Annex V of Directive 2005/36/EC.
8. It is further contended by the Respondents that a CSCST in Anaesthesiology is only available to a doctor who has successfully completed the Specialist Anaesthesiology Training Programme ("SAT Programme") approved by the Medical Council and administered by the College. The Applicant has not participated in the SAT Programme. The College has expressly pleaded that it is not empowered to grant a CSCST to someone who did not apply for and complete the SAT Programme. It is denied that the College supervises or monitors any form of training doctor other than the trainees who are registered under the SAT Programme.
9. It is pleaded that the College is not responsible for the provision of a Completion of Satisfactory Training ("CST") certificate. It is pleaded that the only function which the College would typically have in respect of the provision of a CST certificate is to provide an expert opinion to the Medical Council on the specific experience and training of an applicant-doctor. The Medical Council are not bound by such expert opinion.
10. There was a large measure of agreement between the parties as to the legal test to be applied in determining an application for discovery. In particular, the parties agreed that "relevance" falls to be determined by reference to the pleadings in accordance with the principles identified in Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 IR 211 (at paragraph 57) and in O'Brien v. Red Flag Consulting Ltd [2021] IECA 172 (at paragraph 27).
11. There were, however, two aspects of the legal test upon which the parties were in disagreement. These are addressed, in turn, below.
12. The first area of disagreement relates to the approach to be taken to discovery in judicial review proceedings. Counsel on behalf of the Applicant submits that the necessity for discovery will be more difficult to establish in judicial review proceedings than in plenary proceedings. Counsel cites K.A. v. Minister for Justice, Equality and Law Reform [2003] 2 IR 93 and Flynn v. Commissioner of An Garda Síochána [2024] IEHC 687 in support of this proposition.
13. It is correct to say that—empirically—an order for discovery is less likely to be made in judicial review proceedings than in plenary proceedings. This reflects the practical reality that there is less likely to be any significant factual dispute in judicial review proceedings in respect of which discovery would be "relevant" or "necessary". In most judicial review proceedings, the dispute between the parties will centre on the legality of a decision-making process. If and insofar as the court is entitled to engage with the substantive merits of an impugned decision, this is done through the lens of "rationality" or "reasonableness". Any assessment of the "rationality" or "reasonableness" of an impugned decision will be carried out by reference to the materials which had been before the decision-maker. These materials will usually have been disclosed by the decision-maker and an order for discovery will not normally be necessary.
14. It should be emphasised, however, that the same legal test governs discovery in both judicial review proceedings and plenary proceedings. This principle is well established: see, for example, the following statement of the principle in Fitzwilton Ltd v. Mahon [2006] IEHC 48 (at page 12):
"In my view, the recent Irish authorities clearly establish that the same principles apply to discovery in judicial review proceedings as apply generally in civil proceedings, although, primarily by reason of the nature of the process, the relief afforded and the issues which arise in judicial review proceedings, the practical application of the principles may result in discovery being less frequently ordered in judicial review proceedings than in other civil proceedings. [...]"
15. This principle has recently been reaffirmed in Flynn v. Commissioner of An Garda Síochána. The High Court (O'Donnell J.) stated as follows (at paragraph 40):
"In the specific context of judicial review proceedings, it is clear that the same general rules apply. The point of distinction between judicial review proceedings and plenary cases is that more often than not there are fewer facts in issue and instead the focus is on the legality of a particular decision or series of decisions. As a result, the scope for discovery in judicial review tends to be reduced."
16. The present proceedings are unusual in that, depending on how certain legal issues raised on the pleadings are determined, it may become necessary for the court of judicial review to resolve a significant factual dispute between the parties. This dispute centres on whether the self-guided specialist training undertaken by the Applicant is equivalent to that obtained by a trainee doctor who has successfully completed the Specialist Anaesthesiology Training Programme. This follows from the breadth of the legal challenge being advanced by the Applicant. This is not simply a case where an applicant contends that a decision-maker has erred in its operation of a statutory regime insofar as it pertains to the individual circumstances of the particular applicant. Rather, the present proceedings involve, in large part, a challenge to the very structure of the statutory regime. Depending on how this aspect of the challenge is determined, it may, as already indicated, become necessary for the court of judicial review to resolve a significant factual dispute between the parties. The onus of proof in relation to this issue lies with the Applicant.
17. It is precisely because the present proceedings are so far-reaching that an order has previously been made directing that the substantive hearing of this judicial review action be by way of a plenary hearing. The rationale for this order has been explained as follows: see Abdelaatti v. College of Anaesthesiologists of Ireland [2024] IEHC 341 (at paragraph 30):
"[...] This is not a typical case of judicial review. It is much more complicated in terms of its factual matrix. The court adjudicating on the legal issues needs to understand the basis upon which training is provided in hospitals. The court also needs to understand what sort of training the applicant has received, and whether he is correct in his characterisation of same as a 'parallel pathway', or, whether, alternatively, the respondents are correct in saying that, in fact, it is a different route to certification (referred to in their opposition papers as 'Category E') and/or that it involves continuous professional development. Those are technical issues. They are critical to an understanding of the legal issues because it is only when the factual issues come into focus that it is possible for the court then to adjudicate justly on the legal issues. This is a case which would benefit from an oral hearing."
18. It is, perhaps, surprising that the Applicant, having successfully sought an order remitting the action to plenary hearing on the grounds that it is an atypical case, should now seek to resist discovery by reference to the approach empirically adopted to typical judicial review proceedings. At all events, the circumstances of the present case are such that discovery of the Applicant's training records is appropriate: see the discussion of Categories 3, 5 and 8 below.
19. The second area of disagreement is as follows. The parties are divided on the question of what flows from the fact that certain documents, which come within the categories of discovery sought, have already been exhibited in the proceedings. Counsel for the Applicant submitted that discovery may be refused—as not being "necessary"—if the moving party can obtain the documents somewhere else or already has access to them. Counsel cited Recorded Artists Actors Performers v. Phonographic Performance (Ireland) Ltd [2025] IEHC 119; Deerfield Commercial Services v. McNamee [2020] IEHC 455; and Egan v. Castlerea Co-Operative Livestock Mart Ltd [2023] IECA 240, [2023] 3 IR 88. In reply, counsel for the College cited IBB Internet Services Ltd v. Motorola Ltd [2015] IECA 282.
20. It is correct to say that, in assessing whether discovery is "necessary", it is appropriate to consider whether there might be an alternative means of establishing an issue in the proceedings other than by way of discovery. This is especially so where the nature and extent of the discovery sought might be oppressive. However, as explained by Butler J., writing for the Court of Appeal in Egan v. Castlerea Co-Operative Livestock Mart Ltd, the mere existence of an alternative means will not be sufficient in all cases to avoid the need for discovery. Other factors, such as the efficacy of the alternative means proposed and the comparative cost of utilising it, also have to be considered.
21. In many cases, the alternative means will take the form of another procedural mechanism under the Rules of the Superior Courts, such as, for example, interrogatories. In the present case, however, it is said that the fact that the Applicant has already exhibited certain documents represents an adequate alternative to discovery. With respect, the provision of certain documents on an ad hoc basis is not an adequate substitute for a formal process of discovery. The opposing side is entitled to know that the Applicant has made full disclosure of all relevant documents. A formal process of discovery ensures a rigour and discipline that would otherwise be lacking. To adopt the language used in Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 IR 211 (at paragraph 35), discovery can play a role in keeping parties honest.
22. The position is put as follows in IBB Internet Services Ltd v. Motorola Ltd [2015] IECA 282 (at paragraph 83): it has never been the law that the party requesting discovery could properly be disentitled to otherwise necessary and relevant documentation by reason of the fact that he or she may already have some or all of such documentation. This is because the "entire purpose of discovery is to ensure that the requesting party knows what documentation the requested party has in his or her possession".
23. Different considerations might pertain if the contended-for alternative means to discovery consisted of a source independent of the party against whom discovery was sought. One could envisage circumstances where the relevant documents might be available from, say, an independent public authority and this would ensure confidence. In the present case, however, the source of the documents is the party resisting discovery, and the documents have been self-selected by that party.
24. Different considerations might also arise if the party seeking discovery could be satisfied that it already has a complete set of the relevant category of documents in its possession: this might arise where, for example, the category consists of inter partes correspondence. This arose on the facts of Recorded Artists Actors Performers v. Phonographic Performance (Ireland) Ltd ("RAAP"). There, the moving party had sought discovery of documents comprising pre-litigation communications between the parties themselves. The issue to be addressed is summarised in the judgment as follows:
"Does litigant B have to discover and produce to his opposing litigant (A), the letters, emails etc about their dispute which B, or his/her solicitor, previously sent to A, even though A has, or should have those documents already in his/her possession?
Similarly, does B have to disclose and produce to A, the letters, emails etc about the dispute which B, or his/her solicitor, previously received from A, even though A has, or should have retained copies of those documents?"
25. The High Court (Twomey J.) concluded that, in circumstances where the party seeking discovery did not assert that it had lost or had otherwise failed to keep copies of the pre-litigation communications, an order for discovery was not "necessary".
26. The circumstances of the present case are very different. Here, it is sought to resist discovery on the basis that the Applicant has exhibited certain self-selected documentation as part of the proceedings. These are not documents which had previously been exchanged between the parties by way of pre-litigation communication. The College cannot know whether the self-selected documentation comprises the entirety of the relevant category of documents. This is in contrast to a participant to an exchange of inter partes communications who will, by definition, have been in possession of a complete set of those communications. Moreover, in contrast to RAAP, there is no suggestion that the volume of documents which would be responsive to the category is large, still less that it would be onerous or disproportionate to require the Applicant to make discovery of same.
"Copies of all training records from hospitals referred to within the Applicant's Statement of Grounds and Verifying Affidavit including (but not limited to) the General Organisation of Teaching Hospital, all institutes in Egypt where the Applicant was employed, North West Armed Forces Hospital (Tabuk), Ontario Canada and all Irish hospitals where the Applicant was previously employed."
27. In assessing whether this category is relevant and necessary, it is salutary to recall the breadth of the claim being advanced in these proceedings. The Applicant contends that, owing to his level of experience and training, he ought to be entitled to a CSCST. The Applicant is, in effect, inviting the High Court to evaluate his level of experience and training and to determine that it is equivalent to that obtained by a trainee doctor who has successfully completed the SAT Programme. As discussed earlier, and as addressed in the judgment directing a plenary hearing, the present proceedings are unusual in that the court of judicial review may be required to resolve a significant factual dispute. This is in consequence of the Applicant making a full-frontal attack on the scheme for training and accreditation. The other parties are entitled to have discovery of the Applicant's training records to allow them to engage with this aspect of the dispute. This is so notwithstanding that, depending on how certain legal issues are determined by the trial judge, the case might ultimately be resolved on narrower grounds and without reaching this factual issue.
28. The category, as currently drafted, is too widely drawn. The focus of the proceedings is on the specialist training in anaesthesiology which the Applicant asserts he has undertaken. The category as drafted, however, goes well beyond this and would, for example, capture records going back as far as 2003. Counsel for the Applicant confirmed that the only training which the Applicant relies upon for the purpose of these proceedings is that obtained in the six year period between February 2016 to July 2022. It is this period of training which the Applicant relied upon for the purpose of his application to be entered on the specialist register.
29. Accordingly, an order for discovery will be made in relation to a revised category confined to the hospital training records in respect of the Applicant's training for the period between February 2016 to July 2022. The parties are asked to attempt to agree a form of wording which reflects this revised category: it may be necessary, for example, to elaborate upon what precisely is meant by "training records" and also to identify whether the training records are held by the relevant hospitals or by the Applicant himself.
30. For completeness, it should be recorded that the Applicant's argument that the College had made a concession in its statement of opposition, to the effect that the nature and extent of the Applicant's specialist training is "irrelevant" to the proceedings, is not well founded. Rather, the point being made in the statement of opposition is a different one. The College's pleaded case is that it is not empowered to grant a CSCST to someone who did not apply for and complete the SAT Programme. The point being made at paragraph 44 of the statement of opposition is that the nature and extent of the independent training that the Applicant may have undertaken is irrelevant to the College's certification of its SAT training programme. This plea reflects the College's understanding of its role as an approved body for the purposes of section 89 of the Medical Practitioners Act 2007. The Applicant disagrees. In the event that the court of trial were to hold with the Applicant on this issue, then the nature and extent of the Applicant's specialist training would fall to be considered as part of the proceedings. It is legitimate, therefore, for the College to seek discovery to allow it to address this contingency. This is not inconsistent with the College maintaining its primary pleaded position as set out, in particular, at paragraphs 11, 28, 33, 34, 35, 36, 44 and 53 of its statement of opposition.
"All documents relating to the Applicant's efforts to gain entry to the specialist register in Ireland"
"Copies of the Applicant's logbooks and submission, together with all documents used to support his submission to the second Respondent relating to his application for entry to the specialist register."
31. It is convenient to consider these two categories together. The College contends that it is entitled to know when, and how many times, the Applicant has applied to be entered on the specialist register in Ireland. The College further contends that it is entitled to discovery of the documents submitted as part of the application.
32. The Applicant contends that Category 5 as worded is too broad, and, in particular, that the phrase "documents relating to the Applicant's efforts to gain entry" is too vague. The Applicant has offered to provide discovery of his application for entry to the specialist register which he made in December 2021 and was acknowledged in January 2022.
33. For the reasons which ensue, it is appropriate to direct discovery of a modified category as follows. The Applicant is required to make discovery of the application which he submitted to the Medical Council in December 2021 for entry on the specialist register. This category is relevant having regard to the Applicant's argument that his training and experience is equivalent to that of a specialist doctor who has successfully completed the SAT Programme. It is also relevant to the issue of whether the Applicant can demonstrate that he has been adversely affected by the refusal of a CSCST. An order for discovery is necessary in respect of this category to ensure that the College has available to it all of the documentation submitted to the Medical Council. This documentation is in the possession or procurement of the Applicant, and, having regard to the modest volume of documents involved, it is not disproportionate to require the Applicant to provide same by way of discovery rather than obliging the College to seek copies of the documentation from the Medical Council.
34. It is not necessary, for the moment, to direct that discovery be made more generally in respect of "the Applicant's efforts to gain entry to the specialist register". There is nothing in the papers which suggests that the Applicant has made any application other than that made in December 2021. If and insofar as the College wishes to contend either: (i) that the Applicant has made additional applications, or (ii) that any omission to do so has implications for the College's objections on time-limits and/or standing, then this is something which should be pursued, in the first instance at least, by way of a request for further and better particulars or by way of interrogatories.
"Copies of the Applicant's Revenue Employment Detail Summary for the last five years, contracts of employment with Irish hospitals and benefits and bonuses received."
35. This category would capture revenue records which summarise the annual income and deduction details from any employment engaged in by the Applicant during a five year period. The content of such records is somewhat similar to that contained in an old-style "P60".
36. The College contends that the extent of the Applicant's income from his employment is relevant to his pleaded claim that he has been discriminated against in breach of the constitutional guarantee of equality and that this has affected his right to earn a livelihood. In reply, the Applicant asserts that a claim for damages has since been withdrawn in the issues paper produced by his side.
37. The touchstone against which any application for discovery must be determined is the pleadings. The Applicant has not sought leave to amend his statement of grounds to omit any part of his claim. The pleaded case, as it currently stands, includes an allegation that there has been a breach of the equality guarantee of the constitution. The Applicant has averred not only that trainee doctors undergoing the SAT Programme are entitled to a higher income stream, but he has also averred that a CSCST entitles the holder to enhanced wages, better career progression and opens up further avenues for practice as a specialist doctor.
38. The documents captured by Category 9 are relevant and necessary to these issues. The other side are entitled to know the level of income which the Applicant has enjoyed so as to allow them to compare this with the level of income of the notional "comparator" for the purpose of the equality claim. It would also be relevant to the claim for damages which, pending an application to amend, continues to form part of the pleaded case. The category is proportionate: it is confined to a five year period.
39. An order will be made directing the following categories of discovery:
(A). The hospital training records in respect of the Applicant's training for the period between February 2016 to July 2022. The parties are asked to attempt to agree a form of wording which reflects this revised category: it may be necessary, for example, to elaborate upon what precisely is meant by "training records" and also to identify whether the training records are held by the relevant hospitals or by the Applicant himself.
(B). The application and accompanying documentation which the Applicant submitted to the Medical Council in December 2021 for entry on the specialist register.
(C). Copies of the Applicant's Revenue Employment Detail Summary and copies of all contracts of employment entered into with Irish hospitals by the Applicant. This category is limited to a five year period commencing on [DATE].
40. The parties are requested to attempt to agree the final form of wording for each of these categories. The parties should also indicate at the next listing whether the formal order is to include the additional categories of discovery which have previously been agreed between the parties.
41. As to the costs of the discovery motion, my provisional view is that there should be no order, i.e. each party should bear its own costs of the motion. This provisional view is proposed in circumstances where neither party has been entirely successful. Whereas the College has obtained orders for discovery in its favour, the categories allowed are narrower than those initially sought. The outcome of the application might fairly be described as a draw. If either party wishes to contend for a different form of costs order than that proposed, they will be afforded an opportunity to make oral submissions when these proceedings are next listed.
42. The Applicant has delivered further and better particulars in response to a motion issued by the College. The parties are in disagreement as to which side should bear the costs of the motion.
43. The Applicant seeks to resist a costs order in circumstances where, or so it is said, the College had indicated in correspondence that it would not pursue the costs of the motion if the further and better particulars were provided. This reading of the correspondence is disputed by the College. It is said that any offer on costs had been proposed with a view to resolving all outstanding procedural motions including the discovery motion.
44. It is apparent, from an objective review of the correspondence, that the College's offer not to pursue costs was contingent on agreement also being reached in respect of the discovery motion. No such agreement was ever reached. It follows that the offer lapsed.
45. In the absence of any agreement between the parties, the incidence of costs falls to be determined in accordance with the usual principles. Under Order 99 (as recast in 2019), the High Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. The default position is that costs follow the event. Accordingly, the College is entitled to its costs on the basis that it had been entirely successful in the sense that the issuing of the motion achieved its intended result, i.e. the delivery of further and better particulars.
46. These proceedings will be listed for further case management on 1 May 2025 at 10.30 o'clock.
Appearances
Dean Regan (with John Rogers SC) for the applicant instructed by FH O'Reilly & Co Solicitors
Conor Duff (with Helen Callanan SC) for the first respondent instructed by Hayes Solicitors LLP