Court of Appeal allows appeal against discovery order, remitting jurisdictional issues to High Court for determination first.

THE COURT OF APPEAL

[2015 No. 254]

Ryan P.

Finlay Geoghegan J.

Hogan J.

BETWEEN

ANGELA KERINS

APPLICANT/RESPONDENT

AND

DEPUTY JOHN McGUINNESS, DEPUTY MARY LOU McDONALD,

DEPUTY SHANE ROSS, DEPUTY ÁINE COLLINS,

DEPUTY PAUL J. CONNAUGHTON, DEPUTY JOHN DEASY,

DEPUTY ROBERT DOWDS, DEPUTY SEÁN FLEMING,

DEPUTY SIMON HARRIS, DEPUTY EOGHAN MURPHY,

DEPUTY GERALD NASH, DEPUTY DEREK NOLAN,

DEPUTY KIERAN O’DONNELL, THE CLERK OF DÁIL ÉIREANN,

THE CLERK OF THE PUBLIC ACCOUNTS COMMITTEE,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

JUDGMENT of the Court delivered by Ms. Justice Finlay Geoghegan on the 10th day of December 2015

1. This is an appeal by the respondents in High Court judicial review proceedings against orders for discovery made by the High Court

(Kennedy J.) by order of the 13th May, 2015, pursuant to a written judgment delivered on the 8th May, 2015. The applicant has a

cross appeal against the refusal in the same order to make orders in respect of additional categories of documents and in respect of

one category adjourning the application “pending the outcome of the trial of the First Module herein”.

2. The applicant is the former Chief Executive Officer of the Rehab Group. The first to thirteenth named respondents are or were in

2014 members of the Public Accounts Committee. I will refer to all of the respondents as the PAC as was done by the High Court

judge.

Background to proceedings

3. The applicant was employed as Chief Executive Officer of the Rehab Group, a company limited by guarantee and a registered

charity from December 2006. The Rehab Group has within it a mix of charitable and commercial companies operating in Ireland and

elsewhere. It derives its income from a number of different sources and includes payment by the HSE for services pursuant to service

level agreements under s. 39 of the Health Act 2004. It also receives payment for services from other State agencies including SOLAS

and from the Department of Justice and Equality under the charitable Lotteries Scheme. By a letter of the 18th February, 2014, the

Rehab Group was invited to assist the PAC in relation to expenditure by the HSE, SOLAS and the Department of Justice and Equality.

The applicant was invited to attend before the PAC.

4. The applicant voluntarily attended at a hearing of the PAC on the 27th February, 2014. She contends that instead of the notified

examination in relation to expenditure by HSE, SOLAS and the Department of Justice and Equality to Rehab she was subjected to

questioning in relation to payments by Rehab which was not the subject of the letter and which included the applicant’s own salary

and conditions of employment and those of other persons. She also alleges that the questioning was pursued in a hostile manner and

unfairly and in so doing PAC and its members have pursued a political and/or personal agenda. The applicant alleges that she suffered

injury “as a result of the bias” of the individual members of the PAC during the hearing on the 27th February and was hospitalised

thereafter.

5. The applicant did not attend a further hearing of the PAC on the 10th April, 2014 and also makes complaint in relation to comments

made by members of the PAC at that hearing and in the case of the third named respondent in writing in the media.

6. Thereafter solicitors for the applicant sought to be heard by the Committee on Procedures and Privileges in relation to identified

issues concerning the continuation of the then investigation by PAC. The PAC sought from the Committee on Procedures and

Privileges compellability powers in relation to a future attendance of the applicant before it. This was refused.

Judicial review proceedings

7. The applicant was granted leave to seek the reliefs set out at para. (D) of her statement of grounds upon all the grounds set out

at para. (E) by order of the High Court (Hedigan J. ) on 24th July, 2014. Thereafter the motion issued and the statement of grounds

verified by a lengthy affidavit of the applicant. A notice of opposition was filed and grounded upon a number of affidavits. The

applicant sought voluntary discovery which was refused and a discovery motion was heard and determined by Kennedy J. Prior to

determining the issues which arise on this appeal in relation to the discovery granted and refused by Kennedy J. there is a preliminary

issue which, whilst not formally in issue on the appeal is relevant to the discovery appeals and must be addressed. It relates to the

manner in which the applicant’s judicial review proceedings are to be determined in the High Court.

8. The issue is whether all reliefs sought and claims made by the applicant in her statement of grounds are to be heard and

determined together or whether those claims which relate to the alleged lack of jurisdiction of the PAC to conduct the inquiry which it

conducted at the hearing on the 27th February, 2014, should be firstly determined and thereafter the remaining issues which relate to

her claim principally for damages and certain other reliefs in relation to alleged breaches to her right to constitutional justice and

misfeasance in public office.

9. In the High Court, as appears from the judgment of Kennedy J. it was submitted on behalf of the PAC inter alia that there should be

what was referred to as a modular hearing with the jurisdictional issues, as put by the High Court judge “whether there was

unlawfulness on the part of the respondents” firstly heard and determined and thereafter the applicant’s claim for damages which, in

the High Court, appears principally to have focused on the alleged misfeasance in public office.

10. The trial judge acceded to this proposed approach and indicated that following the approach of Clarke J. in Telefonica O2

(Ireland) Limited v. Commission for Communications Regulation [2011] IEHC 265, that the applicant’s claim for damages should only

be addressed “after the determination of whether there was unlawfulness on the part of the respondents”. For that reason she

adjourned the application for the documents sought at para. (iii) of the notice of motion until after “the First Module has been

determined”.

11. Whilst the applicant in the notice of cross appeal contested the decision to leave over discovery sought at para. (iii) of the notice

of motion, the notice of cross appeal as such does not challenge the approach taken by the High Court judge that the judicial review

proceedings should be heard firstly by hearing and determining the challenges to the jurisdiction of the PAC and leaving over the claim

for damages. Nevertheless, in the written submissions on appeal and at hearing of the appeal, Mr. Rodgers S.C. on behalf of the

applicant disputed this approach. One of the submissions made, was that there had been no formal application for a modular hearing.

In addition submissions were made against the proposed approach having regard to the grounds relied upon in the proceedings.

12. The Court considers that the High Court was correct in these judicial review proceedings on the hearing of the application for

discovery to accede to the submission made on behalf of the PAC that there should be firstly a determination of the jurisdictional

issue prior to a determination of the remaining issues raised by the statement of grounds and notice of opposition even in the absence

of any formal notice of motion seeking a modular hearing.

13. The reasons for this approach derive from the nature of the judicial review proceedings themselves. Judicial review proceedings

are commonly primarily concerned with the jurisdiction of the respondent to make the challenged decision or take the challenged

actions. Frequently, there are ancillary claims made or reliefs sought which are dependent upon the applicant establishing a lack of

jurisdiction of the respondent. It must also be recalled that judicial review proceedings are commenced by originating notice of motion

and, hence, are from the very commencement of the proceedings under judicial control and subject to directions hearings. In the High

Court, it is common place in judicial review proceedings that at some point prior to the full hearing either by agreement or if in dispute

by a determination of the court a decision would be made for the initial determination of jurisdictional issues and the leaving over of

any consequential claims, most commonly damages claims without the necessity of a formal notice of motion. One well known example

included amongst the authorities furnished on the appeals are the proceedings in Kennedy v. The Law Society of Ireland and Others

[2002] 2 I.R. 458 and [2005] 3 I.R. 228. In some instances the jurisdictional issues will dispose of the entire proceedings. In others if

the applicant establishes a lack of jurisdiction, there may have to be further hearings to resolve all the claims. The suitability of this

approach for fair determination of judicial review proceedings in both a cost and judicial resource effective manner depends of course

on the issues raised by the statement of grounds for which leave was granted. Accordingly Kennedy J. was entitled to make such a

decision in the course of the discovery motion without a separate motion. Further it was desirable that such decision was made at

that stage as it affected the ambit of the discovery to which the applicant was entitled.

14. The next question is whether having regard to the issues raised by the statement of grounds and notice of opposition the trial

judge correctly exercised her discretion in deciding that the jurisdictional issues should be determined in advance of the claim for

damages. The statement of grounds is a lengthy document but helpfully divided into factual and legal grounds. The legal are further

subdivided under four headings:

• Powers and competence of the respondents.

• Examination vitiated by bias.

• Breach of rights to constitutional justice.

• Damages for misfeasance in public office and breach of constitutional rights.

15. The grounds set out under the first two headings relate to the alleged absence of jurisdiction of the PAC to conduct the inquiry

which it did conduct at the hearing on the 27th February 2014. First it is contended that the PAC pursuant to Standing Order 163 did

not have jurisdiction to conduct an inquiry, as it did on the 27th February 2014 into payments made by the Rehab Group. It is

expressly claimed at para. 28, that:

“Any examination and/or report by the Respondents in connection with the financial affairs of the Rehab Group or any

individual officer or employee of the said Group is ultra vires the powers of the Respondents. . . .”

16. Secondly it is claimed that if the PAC did have jurisdiction to conduct an inquiry into payments by the Rehab Group that the

manner in which the examination of the applicant was conducted on the 27th February 2014, exceeded such jurisdiction.

17. The subsequent grounds relate to claims for alleged breach of constitutional rights of the applicant and for damages for

misfeasance in public office. It is agreed the latter is dependent upon the applicant establishing a lack of jurisdiction in the PAC to

conduct the inquiry and examination of the applicant at the hearing on the 27th February 2014. The claims for damages and other

reliefs for alleged breaches of the applicant’s constitutional rights do not contend that the alleged breaches deprive the PAC of

jurisdiction. They are linked with the grounds upon which the claim for damages for misfeasance is based which is dependent upon the

jurisdictional issue and suitable for decision after determination of the jurisdictional issues.

18. Accordingly, the Court is of the view, the trial judge was correct in deciding that the jurisdiction issues should be decided in

advance of the remainder of the claim. The precise ambit of the remaining claims will be dependent upon the outcome of the

determination of the jurisdictional issues.

19. It follows from this conclusion that the Court will consider the appeal and cross appeal against the decisions of the trial judge on

discovery upon the basis that the jurisdictional issues will be determined in the proceedings in advance of the remaining issues or as

put as a first module.

High Court order for discovery

20. The trial judge ordered the discovery sought in paras. (i), (ii) (iv) and (v) of the notice of motion:-

(i) All documents relating to the identification by the Public Accounts Committee of the terms of reference or the precise

subject of examination before the public accounts committee on the date when a decision was made to commence the

examination of payments made to the Rehab Group which subsequently required the attendance of the applicant before

the public accounts committee.

(ii) All documents relating to (including but not limited to minutes and/or recordings of meetings of the Public Accounts

Committee and/or between individual members whether in private or public session) and/or considered by the Public

Accounts Committee when it made the decision(s) to commence the examination into payments by the Rehab Group

pursuant to which the applicant was requested to attend before the Public Accounts Committee.

(iv) All documents (including but not limited to minutes and/or recordings of meetings of the Public Accounts Committee

and/or between individual members whether in private or public session) relating to the decision of the Public Accounts

Committee to make an application to the Committee on Procedure and Privileges of Dáil Éireann for an order under Part 7

of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 to compel the applicant to attend before

it;

(v) All minutes or records (including audio or visual records) of any meetings of the Public Accounts Committee that took

place since 1st December, 2013 (including private meetings) at which the public accounts committee discussed or

referred to:

a) the Rehab Group;

b) the applicant;

c) whether payments to the applicant or other members of staff employed by Rehab could be or should be subject

of examination; and

d) whether the Public Accounts Committee could or should seek the attendance of the applicant as a witness

before the Public Accounts Committee.

21. The trial judge decided that the documents sought at para. (iii) of the notice of motion related to the issue of the claim for

damages and the application should be adjourned until after the first module had been determined. She refused the material sought at

paras. (vi) and (vii) as being superfluous having regard to the order made in respect of the documents in paras. (i) and (ii).

Appeal

22. The PAC appealed the orders made on a number of grounds which may be summarised under two general grounds:-

(i) Whilst the trial judge identified correctly the principles applicable to discovery in judicial review she applied those

incorrectly to the jurisdictional issues to be firstly tried and determined. None of the documents sought are relevant or

necessary for the fair determination of the jurisdictional issues in dispute.

(ii) The order for discovery ought not to have been made as it is futile by reason of the privilege attaching to the

documents pursuant to s. 92 of the Houses of Oireachtas (Inquiries, Procedures and Privileges) Act 2013. Reliance was

also placed on Article 15 of the Constitution.

Discovery in judicial review

23. It was agreed that the trial judge had correctly set out the legal principles applicable to discovery in judicial review. It is also

agreed that the same tests of relevance and necessity apply as do in other proceedings. However, by reason of the very nature of

judicial review, the tests of relevance and, in particular, necessity are more difficult to establish. On the question of necessity the

trial judge referred to an oft cited passage from a judgment of Sir Thomas Bingham M.R.. in R. v. Secretary of State for Health, ex p.

Hackney London Borough Council (Unreported, English Court of Appeal, 24th July, 1994), at p. 82:-

“The basic approach is that discovery and production will be ordered in judicial review proceedings where they are

necessary for disposing fairly of the application but not otherwise. The rules themselves provide no guidance as to when

discovery should be treated as necessary for disposing fairly of an action or application, but over the years a practice has

developed, the broad principles of which are clearly understood, even if the application of those principles inevitably gives

rise to controversy in individual cases. It is undesirable to attempt any precise definition of the existing practice, but I

think it is broadly true to say that discovery will be regarded as necessary for disposing fairly of the action, or application,

if a party raises a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to try

the issue fairly, fairly that is to all parties, without discovery of documents bearing on the issue one way or the other.”

24. Counsel for the PAC relied on the above and also drew attention to the observation made by Clarke J. in MacAodháin v. Ireland

and the Attorney General [2012] 1 I.R. 430 at para. 14:-

“. . . it seems clear that in judicial review proceedings it is important, when considering relevance, to identify how the

document concerned can be relevant to the specific types of issues which will arise in the relevant judicial review

application rather than being relevant to the substantive questions which were before the decision maker.”

Issues relevant to jurisdiction

25. As already stated the applicant makes two separate challenges to the jurisdiction of the PAC to conduct the inquiry and

examination of her which it did on the 27th February, 2014. First she contends that the PAC did not have jurisdiction to inquire into

payments by the Rehab Group. A consideration of the statement of grounds and the notice of opposition clearly identifies that the

opposing contentions relate to the proper construction of Standing Order 163 and two reports of the Controller and Auditor General

from 2005 and 2009, to which reference is made by the PAC. Those reports have already been disclosed.

26. The issue in dispute to be decided is whether or not the PAC did have jurisdiction to inquire into the payments made by the Rehab

Group and, in particular, to examine the applicant in relation to her salary and the payments made to her. This question will, however,

fall objectively to be determined by reference to the Standing Orders and the Controller and Auditor General Reports upon which

reliance is placed. There are no relevant factual issues in dispute. For those reasons the Court is of the view that none of the

documents referred to in paras. (i), (ii), (iv) or (v) are either relevant or necessary to the issues to be determined by the court on

the jurisdiction or competence of the PAC to conduct the inquiry in relation to payments by the Rehab Group.

27. The second jurisdictional issue relates to the contention that even if the PAC did have jurisdiction at the outset of the hearing on

the 27th February, it lost or deprived itself of that jurisdiction by reason of the manner in which its members conducted the

examination of the applicant on that date and by reason of further comments made at a subsequent hearing on the 10th April, 2014,

when the applicant was not present and certain statements made in the media by members of the PAC subsequent to that date.

28. In the statement of grounds the applicant sets out in some detail the factual basis of her claim in relation to exchanges which

took place on the 27th February, 2014, and on the 10th April, 2014. The applicant has been furnished with the transcripts of both

those hearings. There is no dispute that the transcripts are the relevant evidence of what took place. At para. 29 of the statement

of grounds the applicant puts the legal basis of this part of her claim as follows:-

“29. As apparent from the transcripts of hearings and the media audit commissioned on behalf of the applicant, the focus

of the respondents’ examination has been on payments by the Rehab Group rather than payments to the Rehab Group and

more specifically, on the private affairs of the applicant who is not a public officer holder but a private citizen. In pursuing

this examination (beyond its remit), the respondents and/or individual members of the Committee have acted neither

impartially nor independently nor fairly by have pursued a political and/or personal agenda with regard to the questioning

of the applicant in a manner which vitiates the examination on grounds both of (i) the appearance of bias or objective

bias and/or (ii) actual or subjective bias. There has been a failure on the part of the first named respondent to disclose a

prior interest in the matters under examination and his previous contact with the applicant in this regard and to properly

remove himself from the Committee in consequence thereof.”

29. The facts relating to the alleged failure on the part of the first named respondent to disclose a prior interest set out at para. 7 of

the statement of grounds and relate to an intervention by the first named respondent in relation to a proposed cessation of

employment by the Rehab Group of a Mr. Fitzpatrick and exchanges between the applicant and the first named respondent in relation

thereto. None of the documents ordered to be discovered relate to that issue. The principal facts are not in dispute. There is a minor

dispute on the affidavits as to what occurred at one particular dinner.

30. That apart as appears, the applicant is relying upon the transcripts of the hearings and the media audit commissioned on behalf of

the applicant as disclosing the facts upon which the legal ground is based. There is no relevant fact in dispute. There is, of course, a

significant dispute as to the inferences to be drawn from those facts.

31. As also appears from para. 29 of the statement of grounds the claim of bias relates to the manner in which the examination was

conducted by the PAC as disclosed by the transcript of the hearings and also by subsequent statements made to the media by

individual committee members. All of these documents are already available to the applicant.

32. Counsel for the applicant submitted that the main contention being made on behalf of the applicant in the proceedings is that the

PAC and its members were activated by malice towards the applicant and that, consequently, she was entitled to discovery of the

documents sought in paras. (i), (ii) and (iii) (and possibly other paragraphs) as being relevant and necessary for the determination, in

particular, of allegations that the PAC lost jurisdiction by reason of the manner in which the examination of the applicant was

conducted on the 27th February, 2014, along with the comments made at the hearing on the 10th April, 2014 and certain of the

statements made to the media. In support of this submission he referred in particular to para. 22 of the statement of grounds (which

forms part of factual grounds) which states:-

“22. There has been significant media reporting of the business of the Public Accounts Committee including the fact that

the respondents were given legal warning prior to February 2014 that it was straying outside its remit in the way it was

carrying out its hearings and investigations. The respondents thus sought the appearance of the Applicant before it in the

full knowledge that the examination it was conducting in relation to expenditure by the Rehab Group went beyond its

lawful remit. In so doing it appears that the Public Accounts Meetings and its members were motivated by political and

public relations objectives rather than the proper and lawful discharge of the functions of the respondents. When

engaging in hostile questioning of the applicant, the respondents did so knowing that they were acting beyond their lawful

remit.”

33. The Court does not consider that this paragraph supports such submission. Rather it emphasises that central to the applicant’s

claim is that the PAC did not have jurisdiction to conduct an inquiry or examination of payments made by the Rehab Group. It further

contends, of course, that the PAC knew that it did not have the requisite jurisdiction when it sought the appearance of the applicant

before it. Until such time as it is objectively determined whether or not the PAC had jurisdiction, the question as to what the members

of the PAC did know of their jurisdiction is not relevant.

34. At para. 29 the claim is made that the PAC summoned the applicant to appear before it at a time when the members knew of the

lack of jurisdiction. It is further alleged that the applicant was questioned improperly for improper political and public relations motives.

It is, however, of some importance that no claim is made that if the PAC did have jurisdiction to conduct such enquiry or examination

of payments made by Rehab Group, their motives in inviting the applicant to appear could affect their jurisdiction. It is only the

manner of the examination of the applicant – as distinct from the fact that she was summoned before the PAC - which is claimed to

have deprived them of jurisdiction by reason of these supposedly improper political and public relations motioves.

35. The first jurisdictional issue must be determined objectively by reference only to the Standing Orders and reports of the Controller

and Auditor General upon which the PAC rely. The alleged subsequent loss of jurisdiction is claimed by reference to what actually took

place and what was done by examination, comment or statements to the media. Those facts are not in dispute and are already

evidenced by the transcripts and media audit. Accordingly, none of the categories of documents which were the subject of the High

Court order are relevant or necessary to the determination of either jurisdictional issue. In the event that the court decides that the

PAC did not have jurisdiction or that it lost its jurisdiction by reason of the manner in which the applicant was examined by the PAC,

then the question of the relevance or necessity of certain of the documents sought by the applicant will have to be reconsidered.

36. By reason of the conclusions reached in accordance with what were termed the traditional judicial review principles it is

unnecessary to consider the further grounds of appeal based upon futility by reason of the claimed constitutional and legislative

privilege.

Cross Appeal

37. For the reasons already set out, the Court considers that the trial judge was correct in adjourning the application for the

documents sought at para. (iii) of the notice of motion until after the determination of the jurisdictional issues. For the reasons set

out above it is also of the view that the trial judge was correct in refusing the documents sought at paras. (vi) and (vii) of the notice

of motion at this stage in the proceedings.

Conclusion

38. The Court will allow the respondents’ appeal against the order of the High Court of the 13th May, 2015, directing discovery of

documents by the respondents at this stage in the proceedings and in lieu thereof will make an order remitting to and adjourning

before the High Court the applications for discovery until after the determination of the jurisdictional issues. Consistent with this

approach, on the cross appeal the High Court order refusing the documents sought at paras. (v) and (vi) should be vacated and in

lieu thereof an order adjourning that application until after the determination of the jurisdictional issues.