About this case:

• Citation:
  [2019] IESC 57
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Frank Clarke

Finding that the State had failed to discharge its onus to demonstrate that alternative procedural measures could achieve a fair and just resolution of the proceedings, Chief Justice Frank Clarke restored the order of the High Court, subject to one minor amendment.

Background 

The plaintiff, Gavin Tobin, was employed by the Minister for Defence as an aircraft mechanic serving with the Aer Corps at Casement Aerodrome between 1989 and 1999.

In 2014, Mr Tobin issued personal injury proceedings against the Minister and the State, attributing alleged personal injuries to the negligence, nuisance, breach of duty, breach of statutory duty and breach of contract of the State for its failure to provide Mr Tobin with, inter alia, a safe system of work, a safe place of work, safe and proper equipment, appropriate training, and safe and competent fellow employees.

In his claim for personal injuries, Mr Tobin alleges that in the course of his employment he was exposed, through the handling of equipment and inhalation, to toxic chemical fumes; and that he was on occasion subjected to a sort of initiation rite known as “tubbing” – which involved his entire body being doused with chemicals by other Aer Corps personnel while he was tied to a stretcher.

Application for discovery

Mr Tobin sought “a considerable body of documentation” under fifteen headings. The Minister for Defence offered to make discovery of nine categories, six of which were in precisely the same wording as was sought. The Ministers said the discovery sought was unnecessarily wide and would impose too heavy a burden.

In the High Court on October 2016, Mr Tobin was granted a significant portion of the discovery sought, with Mr Justice Paul McDermott rejecting the State’s contention that the breadth was too wide. Mr Justice McDermott considered that the nature of the claim, based on a continuum of events over a number of years involving the use and exposure to dangerous chemicals at work, required that this burden of discovery be imposed.

In the Court of Appeal in July 2018, the State was successful in narrowing the order for discovery, in that Mr Justice Gerard Hogan said that ordering discovery for categories 2, 5, 6, 10, 11 and 14 was premature and that the case was illustrative of the extent of the contemporary burden of discovery. Mr Justice Hogan said that since some of the documents dated back some 28 years, the burden was likely to be very considerable and encouraged a cooperative approach by both parties.

Question of general public importance

Mr Tobin was granted leave to appeal to the Supreme Court, which found that there was a question of general public importance involved in “the proper overall approach to discovery in modern conditions and in circumstances where the burden of complying with discovery is likely, on the facts of the case in question, to be significant”.

Mr Justice Clarke said it might be thought unlikely that issues concerning discovery would ordinarily meet the criteria set out in the 33^rd Amendment to the Constitution for an appeal to the Supreme Court, and that discovery principles were relatively well-settled – but that there had been a growing number of judgments in recent times which had to grapple with the “problems associated with potentially very onerous discovery obligations”.

Necessity and proportionality

Mr Justice Clarke said that the State’s defence placed the onus on Mr Tobin to establish all matters relevant to his claim other than the bare fact that he was employed by the Minister and worked at the Airdrome – no concessions of fact were made, and the potential scope of discovery could have been reduced if the State had taken a more nuanced approach in its defence. Acknowledging that any party is entitled to put its opponent on proof of their case, Mr Justice Clarke said that relying on that entitlement may well extend the scope of potentially relevant documentation. As such, Mr Justice Clarke said the fact that the State made no concessions and potentially expanded the range of issues to be explored at trial was a factor in assessing necessity.

Mr Justice Clarke said the initial onus of establishing whether the discovery of any particular category of documents is “necessary” for the fair and just resolution of the proceedings, at a proportionate cost, lay with the requesting party. However, where that onus is prima facie discharged, it is for the resisting party to establish that there are other means of achieving a fair and just resolution of the proceedings, which are likely to be capable of being delivered at a significantly reduced deployment of resources. 

As such, the real assessment was whether the State had discharged the burden on it to establish that  ordering it to make discovery of the disputed categories would be disproportionate having regard to the burden which that would place on the State and also having regard to the availability of interrogatories which would adequately meet any reasonable needs of Mr Tobin.

Mr Justice Clarke said that the estimate given by the State that it would take approximately two hundred and twenty man-hours to review, locate and categorise the documents sought, was not unreasonable, and noted that it fell “a long way short of the scale of discovery …in commercial litigation where large teams of young lawyers are engaged for many months on the task”. In this case, Mr Justice Clarke said the burden would rightly be categorised as being moderate rather than severe or extreme.

Furthermore, Mr Justice Clarke was not satisfied that the State discharged the onus to demonstrate that alternative procedural measures could give Mr Tobin the information he is reasonably entitled to, but at the deployment of greatly reduced resources.

In all the circumstances, Mr Justice Clarke concluded that “save in one respect, the Court of Appeal was in error and the High Court correct in relation to the issues which were the subject of this appeal”.

Subject to the minor amendment of limiting the discovery in one category to the period during which Mr Tobin was assigned to the Engine Repair Flight workshop (i.e. prior to his transfer in 1994), Mr Justice Clarke allowed the appeal and restored the order of the High Court in respect of the categories of discovery which were the subject of the appeal.

• by Seosamh Gráinséir for Irish Legal News