High Court: Application for order compelling further and better particulars in JR refused

About this case:

• Citation:
  [2020] IEHC 248
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael MacGrath

Background

Mr Justice Michael MacGrath heard the application for an order pursuant to Order 19 rule 7(1) of the Rules of the Superior Courts to compel the Veterinary Council of Ireland to furnish further and better particulars. In the underlying proceedings, Daniel McCarthy, a vet and a pharmacist, sought an order of certiorari quashing the decision and recommendation of the Council’s Fitness to Practice Committee in connection with an inquiry into his conduct.

It is alleged that Mr McCarty dispensed prescription-only animal medicines in respect of animals not under his care, without prescription, and that he failed to produce documentation to an authorised officer. The disciplinary proceedings were instituted in July 2012 but were stayed pending the outcome of a criminal prosecution. Following the conclusion of the criminal proceedings, the disciplinary proceedings were re-entered before the Committee in October 2018. Mr McCarthy was also the subject of disciplinary proceedings by the Pharmaceutical Society of Ireland and that inquiry concluded in February 2018.

The oral hearing before the Committee was held in October 2018. Mr McCarthy was not present but was represented. A number of charges were withdrawn, and he accepted the remaining charges. Following submissions, the hearing was adjourned.

The Committee reported its findings and made recommendations in January 2019 that his name be struck from the Veterinary Council’s register. The Committee stated that it was satisfied that there was professional misconduct arising from breaches of the European Communities (Animal Remedies) (No. 2) Regulations 2007, as amended.

Mr McCarthy alleged that a portion of his statement to the Committee was taken out of context as it had been made in relation to non-prescription medicines, and he contended that the report could not go to the Council. In a reply of March 2019 solicitors representing the Council informed Mr McCarthy that it was accepted that an error was made by the reference to OxyContin, a highly addictive drug which is capable of being abused in non-medical circumstances and primarily for human use, rather than Oxytocin, a drug regularly used to aid delivery during animal birth, often administered in an animal context by farmers.

It was also accepted that this error should be drawn to the Council’s attention, and he was informed of his entitlement to attend the Council meeting. They said that the error arose either by counsel using the wrong word or by the stenographer incorrectly recording what counsel had said, but that Mr McCarthy’s lawyers did not correct the error at the enquiry. They said that the Committee’s recommendation focused on a number of issues, and not just the use of the particular drug incorrectly called OxyContin

It is alleged that there were errors on the face of the report of the Committee. A statement of opposition was delivered in June 2019. In July 2019 a notice for particulars was raised by Mr McCarthy arising out of the statement of opposition. This was replied to on 25 July 2019. Mr McCarthy took issue with a number of these replies and raised a notice for further and better particulars on 29 July 2019.

Counsel for Mr McCarthy submitted that the court had jurisdiction under Order 84 rule 22(5) of the Rules of the Superior Courts to direct that particulars be furnished. He argued that where an affidavit contained matters in controversy, as was the case in this matter, it is incumbent on the opposing party to seek to challenge same, relying on the judgment of Chief Justice Frank Clarke in RAS Medical Ltd v Royal of Surgeons in Ireland [2019] 1 IR 63. Counsel submitted that while Mr McCarthy may apply to cross examine the deponent, the first step is to seek particulars of matters that ought to have been provided to comply with the requirements of Order 84 rule 22(5). This was especially so in judicial review applications, which are heard on affidavit with detailed pleadings.

Counsel for the Veterinary Council submitted that the jurisdiction of the court to compel replies to particulars is governed by general principles in assessing whether particulars ought to be replied to. He argued that it was impermissible to seek particulars in respect of matters that ought more properly be the subject of interrogatories, and/or discovery, relying on the judgment of Mr Justice Gerard Hogan in Armstrong v Moffatt (t/a Ballina Medical Centre) & Irwin [2013] 1 IR 417.

He also cited the judgment of Cooney v Browne (No. 2) [1985] IR 185, where Mr Justice Seamus Henchy distinguished situations where particulars are sought for the purpose of pleading and where they are sought for the purposes of the hearing. He observed that “they should not be ordered unless they are necessary or desirable for the purposes of a fair hearing”.

Conclusion

Mr Justice MacGrath noted the judgment of Mr Justice Hogan in Burke v Associated Newspapers (Ireland)Ltd [2010] IEHC 477, where he observed that while a litigant is entitled to know from the pleadings the nature of the case he has to meet, he is not entitled to learn in advance the evidence which his opponent will lead in support of that contention.

The court also noted the judgment of Mr Justice Robert Haughton in Alen-Buckley v An Bord Pleanála (No. 2) [2017] IEHC 541 “the rules of pleading governing judicial review are quite clear and require applicants to state specifically each ground advanced and to particularise matters as appropriate. Linking new matters back to generally pleaded grounds is not permissible.”

Mr Justice MacGrath said that there are “specific rules governing how such proceedings should be conducted and if a claim is vague it may result in the particular ground of challenge (and, in my view, defence) being rejected.” The judge said that while RAS Medical emphasises the importance of the testing of affidavit evidence where there is controversy, “it does not appear to me that it is necessarily authority for a wider and more general proposition that, as a first step, particulars should be directed, prior to any proposed application for leave to cross-examine.”

The court refused the reliefs sought.