The revelation that Cardinal Brady was at the heart of a church hushing-up of crimes of Fr. Brendan Smyth prompts a reflection as to the malign uses of documents imposing confidentiality or curtailing rights.

In Byrne v Ryan [2007] IEHC 2007, the court considered a “consent” which a patient had signed prior to surgery. The Defendant referred to the terms of the consent suggesting that the Plaintiff might;

“…not become or remain sterile..”

The Defendant contended that this was a consent to the actual outcome of the sterilization operation (the operation had failed). The court rejected the argument, saying;

“It merely records the patient’s understanding that there is a possibility of failure.”

The courts have frequently rejected arguments that claims have been settled, as purportedly evidenced by “releases” signed by Plaintiffs.

In Horry v Tate & Lyle Refineries Ltd. [1982] 2 Lloyd’s reports 416, the Plaintiff suffered a personal injury at work. There was a possibility of a recurrence of the injury. The employer’s insurers negotiated a settlement with the Plaintiff who was not legally represented and was not independently advised. The injury did recur and the Plaintiff issued proceedings in respect of the original incident. The Defendants pleaded the “settlement”. The court ruled that the insurance company owed the Plaintiff a fiduciary duty of care to ensure that he got independent legal advice. They were also obliged to reveal the contents of their medical report on him, to him, and where their interests conflicted with his they owed him a fiduciary duty. Consequently, the settlement was not binding on him.

For more information see our Colour Supplement HERE