High Court: Former Garda refused injury compensation is not entitled to discovery in judicial review proceedings

About this case:

• Judgment:
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Stating that the issue arising in the judicial review proceedings brought by the former Garda was the proper legal meaning of “maliciously inflicted” under the Garda Síochána (Compensation) Acts 1941 and 1945, Mr Justice Max Barrett was satisfied that the discovery sought was not necessary, relevant, or proportionate.

Background

In July 2013, Sergeant Shane Devlin was injured while seeking to restrain a prisoner during prisoner escort duties at Virginia Courthouse.

Mr Justice Barrett explained that when a personal injury not causing death occurs, members of An Garda Síochána may be eligible for compensation under the Garda Síochána (Compensation) Acts 1941 and 1945.

Under s.2(1)(c) of the Garda Síochána (Compensation) Act 1945, compensation is appropriate where, inter alia, the relevant injury was “maliciously inflicted”.

In October 2013, Sergeant Devlin made an application for compensation.

In July 2016, the Department of Justice indicated that the Minister for Justice and Equality was refusing compensation on the basis that the injury suffered was not “maliciously inflicted”.

Thereafter, Sergeant Devlin was granted leave to bring judicial review proceedings in respect of the decision to refuse compensation.

Discovery sought

Solicitors for Sergeant Devlin sought voluntary discovery of ‘the file of papers considered by the decision maker’ on the basis that the decision on the question of malice had to involve consideration of the relevant facts and circumstances of the incident – including Garda statements, which Sergeant Devlin said that the Minister had directed in all cases not to be furnished.

Refusing to provide the voluntary discovery sought, the Chief State Solicitor’s Office said that the reasons given did not demonstrate that discovery was “relevant or necessary for the fair disposal of the trial” and that there was “no such directive relating to Garda statements”.

The Chief State Solicitor’s Office provided Sergeant Devlin with an index of the documents relied upon by the decision-maker, showing that several Garda statements were relied upon by the decision-maker.

Furthermore, the Department of Justice exhibited a copy of the in-house Departmental guidelines as regards the processing of claims under the Acts of 1941/45, which states “As a claim for compensation is a civil action taken by a member of An Garda Síochána under the Garda Síochána (Compensation) Acts 1941/45, it is not the policy of An Garda Síochána to release any official statements and reports relating to the incident to Solicitors without the appropriate Court order.”

High Court

Mr Justice Barrett was satisfied that the entitlement to discovery applies equally to judicial review and other proceedings, considering Fitzwilton Ltd v. Judge Mahon & ors. IEHC 48.

However, Mr Justice Barrett added that “discovery is rarely sought in judicial review proceedings is because the facts are seldom a matter of relevant dispute upon an application for judicial review” (Callan v. Minister for Justice and Equality (Unreported, High Court, 2nd February, 2018) and Looby v. Minister for Justice, Equality and Law Reform IEHC 411 considered).

Given that the facts of the incident that led to the injury were not in dispute, Justice Barrett stated that the issue was “whether, having regard to those facts, the injury sustained by Sergeant Devlin was maliciously inflicted”.

In this regard, Mr Justice Barrett cited a passage from Carlow Kilkenny Radio Ltd v. Broadcasting Commission of Ireland 3 I.R. 528, 537:

“iscovery will not normally be regarded as necessary if the judicial review application is based on procedural impropriety as ordinarily that can be established without the benefit of discovery. Likewise, if the application for judicial review is on the basis that the decision being impugned was a wholly unreasonable one in the Wednesbury sense, discovery will again not normally be necessary because if the decision is clearly wrong it is not necessary to ascertain how it was arrived at. Where discovery will be necessary is where there is a clear factual dispute on the affidavits that would have to be resolved in order properly to adjudicate on the application or where there is prima facie evidence to the effect, either that a document which ought to have been before the deciding body was not before it or that a document which ought not to have been before the deciding body was before it.”

Mr Justice Barrett was also satisfied that there was not prima facie evidence of the type referred to in Carlow Kilkenny Radio Ltd v. Broadcasting Commission of Ireland 3 I.R. 528.

The issue in the present case was “a question of law, the answer to which rests on the proper legal meaning to be attached to the term “maliciously inflicted”, as employed in s.2(1)(c)” and this was not in the documentation sought in the present application for discovery.

Refusing the discovery sought, Mr Justice Barrett said that the documentation was not necessary or relevant, and was therefore not proportionate.