Halpin v National Museum of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 27 February 2019
• Neutral Citation: [2019] IECA 57
• Date: 27 February 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 57

BETWEEN/

ANDREW HALPIN

RESPONDENT/PLAINTIFF

- AND -

NATIONAL MUSEUM OF IRELAND

APPELLANT/DEFENDANT

[2019] IECA 57

Irvine J.

Irvine J.

Baker J.

Kennedy J.

Neutral Citation Number: [2019] IECA 57

[2018 222]

THE COURT OF APPEAL

Discovery of documents – Medical records – Sealed discovery – Appellant seeking discovery of documents – Whether the High Court judge was correct in ordering sealed discovery

Facts: The defendant/appellant, the National Museum of Ireland, appealed to the Court of Appeal against an order of the High Court (Murphy J) dated the 1st May 2018. By notice of motion dated the 23rd October 2011, the defendant applied for an order pursuant to Ord. 31, r. 12 of the Rules of the Superior Courts requiring the plaintiff/respondent, Mr Halpin, to make discovery of “all documentation concerning, evidencing or relating to the plaintiff’s mental health including but not limited to any of the following; stress; pressure; anxiety; depression and counselling under gone by him including GP and other clinicians’ consultant notes and reports and counselling notes to cover the period of 1st January, 2005 to date.” By her order, the High Court judge directed the plaintiff to swear an affidavit making discovery of the above-described “category (vi)” documentation. Somewhat unusually, she further required that this affidavit and the documents produced thereunder “be sealed and placed on the Court file to be available to the trial court in respect solely of the issue of remedy and depending on the outcome of the trial”. This dispute in respect of discovery occurred in the wider context of the plaintiff’s claim in his substantive proceedings, which had yet to be heard, that he was suspended unlawfully from his employment by the defendant, and that he should not be required to undergo medical assessment at its insistence. In appealing the order of Murphy J of the 1st May 2018, the appellant essentially contended that the High Court judge erred in failing to order discovery in the conventional way. The respondent in his cross-appeal claimed that no discovery ought to have been made.

Held by Irvine J that the High Court judge erred in law in making the order for discovery which she did on the 1st May 2018. Irvine J held that the discovery of the respondent’s medical records was neither necessary nor relevant for the proper and fair determination of any issue in the proceedings. Furthermore, Irvine J held that the order made by the High Court judge was not in accordance with the Rules of the Superior Courts. Irvine J held that whilst the court has in inherent discretion to make an order for discovery which is not strictly in accordance with the rules where it is necessary in order to achieve justice between the parties, no such departure was warranted on the facts of this case.

Irvine J held that she would dismiss the appeal and allow the cross appeal.

Appeal dismissed and cross appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 22nd day of February 2019

1 This is an appeal by the defendant, the National Museum of Ireland (‘the Museum’), against an order of the High Court (Murphy J.) dated the 1st May 2018.

2 By notice of motion dated the 23rd October 2011, the defendant applied for an order pursuant to Ord. 31, r. 12 of the Rules of the Superior Courts requiring the plaintiff to make discovery of ‘all documentation concerning, evidencing or relating to the plaintiff's mental health including but not limited to any of the following; stress; pressure; anxiety; depression and counselling under gone by him including GP and other clinicians” consultant notes and reports and counselling notes to cover the period of 1st January, 2005 to date.’

3 By her order, the High Court judge directed the plaintiff to swear an affidavit making discovery of the above-described ‘category (vi)’ documentation. Somewhat unusually, she further required that this affidavit and the documents produced thereunder ‘be sealed and placed on the Court file to be available to the trial court in respect solely of the issue of remedy and depending on the outcome of the trial’.

4 This dispute in respect of discovery occurs in the wider context of the plaintiff's claim in his substantive proceedings, which have yet to be heard, that he was suspended unlawfully from his employment by the defendant, and that he should not be required to undergo medical assessment at its insistence.

Background

5 The plaintiff has been employed by the defendant and its predecessor since 1994. He currently holds the office of Assistant Keeper of Irish Antiquities.

6 In 2006, the defendant conducted an investigation into a complaint of sexual harassment against the plaintiff. It is not in dispute that, as a result of this investigation, the plaintiff was found guilty of sexual harassment and was subject to the imposition of certain sanctions, including the loss of salary increments for a three-year period and a requirement to undertake counselling. According to the replies to particulars, dated the 19th May 2017, the plaintiff attended counselling from 2006 until approximately 2011.

7 In 2015, a further complaint of sexual harassment against the plaintiff was made by an intern to management. This coincided with a complaint from another source regarding material on the plaintiff's work computer, which consisted of several hundred images of tall women, some of which had been digitally altered to make the women seem taller.

8 An investigation was undertaken on the part of the defendant into these events in 2016. The intern who had made the complaint of sexual harassment did not participate in this investigation. Its outcome was that the plaintiff was directed to have no physical content with his colleagues beyond a normal handshake; that he was not to work alone with female colleagues/interns; that his internet access was to be withdrawn with the exception of a small number of official websites; that he was to seek professional assistance from the employee assistance programme. It was envisioned that the plaintiff would be subject to quarterly review meetings regarding his work performance, however these meetings did not materialise, nor was the plaintiff's internet access ever in fact restricted. The computer images were not deemed to be pornographic.

9 It is perhaps worth noting that around this time, and in particular since the appointment of a new Board to the defendant in or around mid-2016, the defendant had been subject to some media scrutiny, with several reports appearing in the media alleging a long-standing dysfunctional working environment. In late 2016, the Board undertook a survey of wellbeing amongst its employees which found very low levels of morale and a lack of trust in management. On foot of these findings, the Board sought a report from management on all human resources issues, which was due for discussion at a board meeting on the 16th March 2017.

10 On the 16th February 2017, an article appeared in the Irish Independent newspaper under the headline ‘Man keeps job at Museum despite sexually harassing colleague’. On the following day, the same newspaper published an article titled ‘National Museum Board “urgently examining” sex pest case’. The plaintiff was not named in these articles. However, it is common ground that the articles referred to him and in particular the complaint of sexual harassment made against him in 2006. Further, the plaintiff contends that he was identified as the subject of the articles on social media.

11 On the day of the publication of the second article, the 17th February 2017, the plaintiff attended a meeting with Raghnall O'Floinn, the Director of the Museum, at a Dublin hotel. At this meeting, it appears that the plaintiff was asked to take a leave of absence on full pay, and told that he would otherwise be suspended. The plaintiff agreed to take leave with pay and confirmed this by a letter to Mr O'Floinn on the same date. A number of days later, the plaintiff changed his mind. He considered that he had been pressured into taking leave, and so by email he revoked his decision and indicated his decision to attend work on the 1st March 2017. In his email, he rejected the reason which had been proffered for his placement on leave, namely that the stress of the media coverage may cause him to again engage in behaviour which would place his colleagues at risk, and suggested that the true reason for the decision was the publication of the article in the Irish Independent on the 16th February 2017.

12 On the 28th February 2017, Mr O'Floinn replied to the plaintiff, reminding him that the complaint investigated in 2006 was not the only complaint made against him, and warning him that should he attend for work on the 1st March he would be formally suspended. Following a further exchange of correspondence, Seamus Lynam, the Head of Operations of the Museum who was deputising in the absence of the director, sent an email formally notifying the plaintiff of his decision to suspend the plaintiff on full pay with immediate effect, pending a review by the Board of all human resources matters, and directing that he should not attend work. In his email, Mr Lynam set out the reasons for his suspension of the plaintiff in the following terms:-

‘As you are aware there has been adverse negative publicity about the NMI in the national media in the last number of weeks. In particular, and while you have not been named, the Irish Independent has published two articles which are directly related to you. I am also aware that you have been made aware of comments made on-line.

In light of their contents, I must consider what you believe is best for both of you and all staff within the NMI. I have not taken this decision lightly, however, having read the investigation reports into the two allegations of sexual harassment made against you, I note that in the...