High Court: Directing concurrent wrongdoer to disclose other potential wrongdoers does not require proof of wrongdoing

Sean Smith

About this case:

• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

In the process, the Court substantially elaborated on the application in Ireland and boundaries of the House of Lords’ decision in Norwich Pharmacal v. Customs and Excise Commissioners [1974] A.C. 133.

Background

In Grace v Hendrick and Garvey, the plaintiff sued the first defendant for assault, battery and trespass to the person and the second defendant for negligence and breach of duty. Both defendants are members of the Congregation of Christian Brothers.

Earlier in the proceedings, the plaintiff had asked the second defendant, who is Province leader of the Congregation in Europe, to either nominate a person to defend the proceedings on behalf of the Congregation and/or to furnish the names and addresses of Congregation members who are currently alive and were members at the time the alleged assaults occurred.

In essence, the case arose because the second defendant refused both requests. The matter then came on Notice of Motion for hearing before Ms Justice Niamh Hyland in the High Court.

Decision

The first relief sought by the plaintiff was an order under O 15 r 9 of the Rules of the Superior Courts authorising or directing the Congregation’s Province leader to defend the proceedings. In relevant part, the rule mandates that one or more persons with the same interest in one cause or matter “may be authorised by the court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested”. In the face of the plaintiff’s argument that the rule permits a court to direct a defendant to act in a representative capacity, the Court concluded that O 15 r 9 embraced not “mandatory” but “permissive” language.

A straightforward textual analysis supported the Court’s approach. Explaining that “the word “authorisation” connotes permission or clearance being given by person A for a course of action that is desired by person B”, the Court resolved that “prima facie, the rule does not give the court a power to direct a defendant to act on behalf of others”. In this part of the case, the Court also rejected the alternative argument that this relief could be provided under the Court’s inherent jurisdiction, finding that this jurisdiction was entirely conferred “by the relevant rule of court” alone.

The meatier question the Court then had to consider lay in the issue of directing production of the names and addresses of the Congregation at the relevant time. The plaintiff had invited the Court to do so by invoking either the court’s inherent jurisdiction to order discovery or the House of Lords’ decision in Norwich Pharmacal, followed in Ireland by Megaleasing UK Limited v. Barrett [1993] IL.R.M. 496. The rest of the decision largely traced these two pathways to the reliefs.

In discussing the inherent jurisdiction prong of this submission, the Court laid out numerous Irish precedents confirming that ”inherent jurisdiction may be used as the legal basis for a wide variety of orders”, most relevantly those “directing discovery of the identity of third parties for the purposes of suing them” [para.36]. Further, the Court rejected the argument that the jurisdiction should only be deployed in exceptional cases, finding there was room for such power where there was “no other alternative and where the issue is not already addressed by legislation and/or rules of court”.

The Court next moved to consider Norwich Pharmacal as an anchor for the reliefs sought. At the outset, the Court acknowledged that, although the Court’s “inherent jurisdiction to order a defendant to disclose names of suspected wrongdoers for the purpose of issuing proceedings against them” was not in doubt since that decision, relief under Norwich Pharmacal was foreclosed because a critical condition of the jurisdiction – namely “very clear proof of a wrongdoing”- was absent.

However, the Court found that Norwich Pharmacal did not stand in the way of the reliefs. Firstly, the Court found that the plaintiff’s action was not for sole discovery, but rather alleged serious torts against the defendants. This was important because, in Norwich Pharmacal, the discrete issue that “the House of Lords struggled with” was whether such an order “was available where the plaintiff had no cause of action against the defendant” [emphasis in original]. Secondly, the High Court reached back to vintage cases in the US and South Africa (and cited in Norwich) supporting the equitable jurisdiction of the court to order such reliefs where no other appropriate remedy existed.

If UK precedent was not a bar, the Court had to confront a trio of Irish cases, O’Brien v. Red Flag Consulting & Ors. [2015] IEHC 867, O’Brien v.Red Flag Consulting [2016] IEHC 719 and O’Brien v. Red Flag Consulting [2017] IECA 258. Of these, Ms Justice Hyland regarded the first O’Brien decision as key, for there the High Court squarely ruled that a plaintiff must establish “to a high degree of certainty that an unknown person has engaged in unlawful activity before disclosure orders will be made”.

Nodding to its obligations under Re Worldport Ireland Ltd. [2005] IEHC 189, the Court indicated it was ready to depart from the first O’Brien decision. Ms Justice Hyland explained that, as an ex tempore decision, the O’Brien case had failed to engage in detail with case law on the discrete question of requiring proof of wrongdoing where the defendant is a concurrent wrongdoer. Indeed, the Court underscored that the O’Brien decision had instead focused on Norwich Pharmacal and its Irish cousin Megaleasing, both cases where sole discovery was in issue. The Court therefore concluded this part of its judgement by preferring “a line of much older U.K, U.S and South African case law that suggests that the necessity for proof of prima facie wrongdoing is not invariably required when the defendant is a concurrent wrongdoer” [para.69].

Conclusion

The Court ultimately rejected the plaintiff’s contention that it was, in effect, being asked to carve out a “backdoor” jurisdiction, highlighting instead that the jurisdiction simply “differed” from that typically exercised under Norwich Pharmacal. The Court endorsed a “parsimonious” approach to granting the reliefs sought and ruled that the circumstances of the instant case warranted them. In fact, the Court acknowledged that, if rare circumstances were required to invoke the jurisdiction, the plaintiff’s case was “rare indeed”.

The Court homed in on whether the order sought would serve what it called a “paramount” interests of justice standard. Guided by this, the Court ordered disclosure of the names requested because the plaintiff needed to “sue the Brothers individually under the doctrine of vicarious liability and “[t]o do so he must have their names and addresses.” Here Ms Justice Hyland re-stated established law in Ireland to the effect that “[i]f a plaintiff seeks to impose vicarious liability on a religious order for the acts of a member of the order, he or she must sue the members of the order individually unless there is a representative defendant.”[Hickey v McGowan and Cosgrove [2017] 2 I.R. 196).

In the last analysis, the Court acknowledged the hurdles facing plaintiffs and adverted to the “improved prospects of recovery” if multiple defendants are named “rather than one or two”. The Court was further minded to grant relief because the plaintiff would be “seriously disadvantaged” by having just two defendants to sue given the strictures of s.35(1) of the Civil Liability Act 1961. The Court drew attention to the stance of the Province leader and stated that his failure to substantively engage with the claim meant the court was unable to consider any mitigating factors against release of the names. However, a narrow order would be drawn to protect the privacy interests of the Brothers.

The Court proposed that costs be awarded against the Province leader of the Congregation but stayed the order for further proceedings.