Wicklow County Council ordered to disclose documentation in legal battle with Sinn Féin politician

About this case:

• Judgment:
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Mr John Brady is a Sinn Féin politician recently re-elected a Wicklow county councillor. During the course of his political career, Mr Brady has sometimes made criticisms of local government, and in May 2013 supported a “sit-down” protest by a number of homeless women at Bray Town Council (since made part of Wicklow County Council).

Since that event, Wicklow County Council has sought to bill Mr Brady for the costs of the protest.

The Council has also conducted a Council inspection of Mr Brady’s Council-owned house, which has led to allegations that an attic conversion constitutes a fire risk, in turn leading to a protracted dispute and an eventual “Notice to Quit” being issued to Mr Brady and his family.

Mr Brady and Mrs Brady claim that they have been targeted by the Council, and have made allegations that the Council have acted in bad faith. They note that others in their neighbourhood have made the same attic conversion without any similar issues being raised.

The current order relates to documentation sought by Mr and Mrs Brady in relation to this dispute, through an order of discovery.

The documentation sought includes any documentation related to the initial inspection of the home, documentation in relation to the Notice to Quit, and documentation in relation to attic conversions carried out by Mr and Mrs Brady’s neighbours.

Delivering the Court’s judgment, Mr Justice Max Barrett first explored the purpose of discovery.

Citing Carlow Kilkenny Radio Limited v. Broadcasting Commission of Ireland 3 I.R. 528, the Court noted that discovery is necessary when “there is a clear factual dispute on the affidavits that would have to be resolved in order properly to adjudicate on the application.”

Further, the Court noted Fitzwilton Limited v. Judge Alan Mahon and Others IEHC 48, in which it was found that discovery should be ordered when “it is necessary having regard to the ground on which an application is founded or the state of the evidence.”

The Court found that the principles related to discovery had been most recently outlined in McEvoy v An Garda Síochána Ombudsman Commission IEHC 203, which found that “a reasonable possibility that the documents are relevant is sufficient.”

The Court then considered Wicklow County Council’s submission that Mr and Mrs Brady’s request amounted to a ‘fishing expedition’, being sought to “shore up” allegations of bath faith and misfeasance in public office.

While noting that this expression is often deployed in discovery proceedings as a criticism of disproportionate or unreasonable requests for documentation, the Court found that the “rather opaque term ‘fishing expedition’, though often encountered in discovery applications, in truth seems best left to the columns of Irish Angler’s Digest.”

The Court noted that all discovery orders are to some extent “a voyage into the unknown”.

However, rather than consider whether the current requests amounted to a “fishing expedition”, the Court assessed the “relevance, necessity, proportionality and reasonableness” of the request for discovery, stating that such terms were those “a court of law can grapple with and adjudicate upon.”

In relation to the specific requests, the Court found that the documentation requested was relevant and necessary, with one slight amendment to ensure the documentation relating to attic conversions were specific to the dates and houses relevant to the current dispute.

Thus, the order was granted.

In concluding, the Court noted that “The Council had every legal right to object as it did to production of the various documents sought of it by Mr and Mrs Brady; but just because one is entitled to do something does not always mean that one ought to do that something.”