An Application by the Teaching Council of Ireland v a Personal Injuries Action in Which an Order was made Under Section 27(1) of the Civil Law (Miscellaneous Provisions) Act 2008

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IEHC 683
• Court: High Court
• Docket Number: [2020 No. 42 MCA]

IN THE MATTER OF AN APPLICATION BY THE TEACHING COUNCIL OF IRELAND AND IN THE MATTER OF A PERSONAL INJURIES ACTION IN WHICH AN ORDER WAS MADE UNDER SECTION 27(1) OF THE CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008

[2020] IEHC 683

David Keane

[2020 No. 42 MCA]

THE HIGH COURT

Personal injuries – Discovery – Objection – Teaching Council of Ireland seeking discovery – Whether the absence of any objection tilted the balance in favour of ordering disclosure

Facts: The Teaching Council of Ireland moved for an order providing it with the title and record number of a certain personal injuries action that it had seen described in two newspaper reports or, in the alternative, an order providing it with the names of the defendants in that action. The Teaching Council submitted that the Civil Law (Miscellaneous Provisions) Act 2008 s. 27 order made in the personal injuries action was intended to protect the plaintiff from identification as a person with a particular medical condition, where that would have been likely to cause him undue stress, and was not intended to protect, or ensure, the anonymity of either of the two Christian Brother defendants. The Teaching Council pointed out that it had clearly identified the public interest it asserted as the basis for its application; that of the proper and effective regulation of the teaching profession with due regard to the particular need to protect children and vulnerable persons in that context. The Teaching Council submitted that the relief it sought – a variation of the s. 27 order, coupled with a direction that it be provided with either the full title and record number of the personal injuries action or the names of the two Christian Brother defendants to it – was a narrow one, fully consonant with the approach endorsed by the Supreme Court in Gilchrist v Sunday Newspapers Ltd [2017] 2 IR 284 (at 314), in that it did not require the High Court to make a binary choice between the unqualified application or disapplication of an in camera requirement. The Teaching Council suggested that the decision on its application was unlikely to create a significant precedent because: (a) instances where professional disciplinary concerns arise from matters at issue in civil proceedings covered by reporting restrictions under s. 27 are likely to be rare; and (b) the court was not being asked to establish or apply a new principle, nor to depart from any established line of authority.

Held by Keane J that the plaintiff in the personal injuries action had indicated to the Teaching Council through his solicitors that he would abide by any order the court makes. In the usual way, Keane J took that to mean that, while the plaintiff did not consent to the disclosure of the relevant information, he did not object to it. Keane J held that the absence of any objection tilted the balance in favour of ordering disclosure, however weak the argument for that disclosure may otherwise be.

Keane J proposed ordering that the plaintiff in the personal injuries action make discovery to the Teaching Council of all of the pleadings exchanged in that action, subject to the provision by or on behalf of the Teaching Council of an undertaking to pay the plaintiff’s reasonable costs of that discovery. Further, Keane J proposed ordering that the terms of the s. 27 order made in the personal injuries action be varied to permit the publication of the contents of the information contained in the pleadings in that specific and limited way. Keane J imposed the following restrictions on the Teaching Council: (a) any hearing that takes place before a panel of the Disciplinary Committee as part of a disciplinary inquiry on foot of any complaint made by the Teaching Council under s. 42(1) of the 2008 Act based on the documentation discovered shall occur otherwise than in public in so far as is necessary to protect the anonymity of the plaintiff; (b) any adverse finding against a registered teacher at the conclusion of the fitness to teach process shall be anonymised in so far as is necessary to protect the anonymity of the plaintiff; (c) an undertaking shall be given on behalf of the Teaching Council that the documentation discovered by the plaintiff in the personal injuries action shall not be divulged to anyone other than the parties to any resulting fitness to teach complaint, the Director, the relevant Investigating Committee, the relevant Disciplinary Committee and those persons otherwise necessarily associated with the fitness to teach inquiry process; (d) all persons who learn of the contents of the documentation discovered (or any of them) in the course of the fitness to teach inquiry process or in any subsequent proceedings or in any other way are bound by the s. 27 order which is varied by the court only to the limited extent already specified and subject to these conditions.

Discovery order granted subject to conditions.

JUDGMENT of Mr Justice David Keane delivered on the 21st December 2020

Introduction

1 The Teaching Council of Ireland (‘the Teaching Council’) moves for an order providing it with the title and record number of a certain personal injuries action that it has seen described in two newspaper reports or, in the alternative, an order providing it with the names of the defendants in that action.

2 The Teaching Council presents the legal issues at stake as beguilingly simple, although in my judgment they are not. At the same time, the Teaching Council characterises its failure to identify the appropriate respondents or notice parties to its application; the appropriate form of order to secure for it the information it seeks; and the appropriate person or persons to whom that order should be directed, as the exercise of restraint in deference to the wide discretion of the court, rather than as an inappropriate invitation to the court to advise, as well as adjudicate, upon that application.

The newspaper reports

3 The first newspaper report has been retrieved from the website of the Irish Examiner (‘www.irishexaminer.com’), where it appears under the headline ‘Man who claimed he was sexually assaulted by scout leader and two Christian Brothers settles case’ (‘the Examiner story’). It is written by Ann O'Loughlin and is dated Thursday, 25 July 2019. In material part, it reads as follows:

‘A 56-year-old man who claims he was sexually assaulted by two Christian Brothers teachers and a Scouting Ireland scout leader when he was a schoolboy has settled his High Court action.

The man who is from the south of the country cannot be identified by order of the court.

The action had been taken against the Christian Brothers in Ireland, two named Christian Brothers, Scouting Ireland and a former scout leader for alleged sexual assault in the 1970s.

On the second day of the case today, Mr Justice David Keane was told that it had been settled. The man's counsel Sasha Louise Gayer SC said the case could be struck out.

It will be mentioned before the court next October in relation to the implementation of the settlement.

…

At the outset, Mr Justice David Keane was told the case against the State defendants was being discontinued.

Against the Christian Brothers in Ireland and two named Christian Brothers, it was claimed that there was an alleged failure to take any proper precautions for the child's safety and there was an alleged failure to take any proper steps to protect him from the potential of sexual assault, battery or trespass to his person.

There was it was claimed an alleged failure to warn the boy of the dangerous nature of the schools he was attending. The claims were denied by the Christian Brothers in Ireland which claimed the case was statute-barred.

One of the Christian Brothers had admitted the abuse. Neither of the Christian Brothers has attended court for the case.’

4 The second newspaper report is one retrieved from the website of the Irish Times (‘www.irishtimes.com’), where it appears under the headline ‘Scouting and child abuse case settled for six figure sum’ (‘the Times story’). It is dated Sunday, 28 July 2019, and is written by Jack Power. In relevant part, it reads as follows:

‘A man who claimed he was sexually assaulted by two Christian Brothers teachers and a scout leader, when he was a schoolboy in the 1970s, has settled his High Court action for a six figure sum.

Scouting Ireland and the Christian Brothers are understood to each be paying half of the cost of the settlement. The religious order had indicated that it would not contribute more than half of the sum, sources said.

The settlement, reached last Thursday, is subject to a confidentiality clause but several sources confirmed it runs into six figures.

The man, aged in his 50s, cannot be identified by order of the court. The action had been taken against the Christian Brothers in Ireland, two named Christian Brothers, Scouting Ireland and a former scout leader.

Last Thursday, the second day of the case, Mr Justice Keane was told it had been settled. Sasha Louise Gayer SC, for the man, said the case could be struck out.

…

Against the Christian Brothers in Ireland and two named Christian Brothers, it was claimed there was a failure to take proper precautions for the child's safety and to protect him from the potential of sexual assault, battery or trespass to his person. It was also claimed there was failure to warn the boy of the dangerous nature of the schools he was attending.

Both the Christian Brothers in Ireland and Scouting Ireland had denied the claims and contended the action was statute barred.

Ms Gayer said one of the Brothers was later prosecuted in relation to an assault on the boy when he was in fifth class in national school. At the time, the Christian Brothers in Ireland said when the man made a complaint in 1998, the Christian Brother was removed from teaching and sent for counselling.

…

The man had been represented by Coleman Legal Partners, which...