Kerins v Dáil Éireann

JurisdictionIreland
JudgeJustice Alexander Owens
Judgment Date29 July 2022
Neutral Citation[2022] IEHC 489
CourtHigh Court
Docket Number[2014 No. 431 J.R.]
Between:
Angela Kerins
Applicant
and
Dáil Éireann, Ireland and The Attorney General
Respondent

[2022] IEHC 489

[2014 No. 431 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Discovery – Misfeasance in public office – Damages – Applicant seeking discovery of documents – Whether documents were relevant and necessary for the fair disposal of the action

Facts: The applicant, Ms Kerins, sought damages for alleged misfeasance in public office of members of the first respondent, Dáil Éireann, acting in the Public Accounts Committee. The applicant and the first respondent applied to the High Court for discovery of documents. The applicant sought documents of the Committee held by Dáil Éireann. Those documents were under the control of the Clerk of the House. The applicant claimed that in a public session of the Committee on 27 February 2014, members of the Committee engaged in a sustained attack on her character which damaged her health and caused her loss. She claimed that this attack continued in subsequent public proceedings of the Committee. She claimed that the Committee members were aware that they were acting improperly and that they deliberately abused their powers. She claimed that activities within the Committee in private session led to mistreatment of her by members in public session. She sought disclosure of documents of the Committee which were not in the public domain on grounds that they were relevant and necessary for the fair disposal of the action.

Held by Owens J that the Court would dismiss the applicant’s application for discovery. He held that he was precluded by Article 15.13 of the Constitution from entertaining the application because the gravamen of her claim called for judgment on speech and debate by members of Dáil Éireann. He noted that Articles 15.10, 15.12 and 15.13 of the Constitution recognise and protect freedom of speech and debate within the Houses of the Oireachtas. He noted that the Houses are given autonomy in regulation of parliamentary speech and debate; this autonomy includes autonomy of disciplinary authority over parliamentary speech and debate. He noted that the protection extends to proceedings and actions of members in committees of the Houses. He held that propriety of speech and debate by members in private sessions of a committee of the Houses may not be the subject of litigation. He noted that it also covers documents of the Houses and of their committees which relate to speech and debate. He held that the documents which the applicant sought were intimately connected with protected speech and debate in a committee of Dáil Éireann; as such, they were protected. He held that there may be circumstances in which a court would grant an order for discovery of documents held by Dáil Éireann and the fact that the House has made standing orders under Article 15.10 of the Constitution to protect its official documents from release without consent may not be an absolute bar to a court order for disclosure. He found that whether a court would compel disclosure may depend on the nature of the issue giving rise to an application for sight of the material. He held that this action was not of a type which would justify such a course.

Owens J held that if his reasoning was correct, it followed that the applicant’s claim for damages for misfeasance in public office was not maintainable. He held that discovery which the first respondent sought from the applicant would not be necessary. He held that if the action were maintainable, the first respondent would be entitled to the documents sought. He considered that they were relevant and necessary for fair disposal of the claim. He proposed adjourning generally the first respondent’s application for discovery with liberty to re-enter for the purpose of making an order on foot of this determination if it transpired that an appellate court did not agree with him.

Applicant’s application dismissed. First respondent’s application adjourned.

JUDGMENT of The Hon. Justice Alexander Owens delivered on the 29th day of July 2022

1

Where it appears to any court that the immunity of members in respect of speech and debate in the Houses and the exclusive authority of the Houses may be relevant to any issue before that court, the court must address that matter of jurisdiction immediately.

2

This action relates to proceedings of the Public Accounts Committee (the Committee) of Dáil Éireann. The applicant seeks damages for alleged misfeasance in public office of members of Dáil Éireann acting in the Committee.

3

The applicant and the first respondent have applied for discovery of documents. This judgment relates to these applications. The applicant seeks documents of the Committee held by Dáil Éireann. These documents are under control of the Clerk of the House.

4

The applicant claims that in a public session of the Committee on 27 February 2014, members of the Committee engaged in a sustained attack on her character which damaged her health and caused her loss. She claims that this attack continued in subsequent public proceedings of the Committee. She claims that the Committee members were aware that they were acting improperly and that they deliberately abused their powers.

5

She claims that activities within the Committee in private session led to mistreatment of her by members in public session. She seeks disclosure of documents of the Committee which are not in the public domain on grounds that they are relevant and necessary for the fair disposal of the action.

6

The tort of misfeasance in public office concerns abuse of power or authority by those entrusted by law with performance of public functions. The applicant must prove malice. This means that she must prove intention by a person exercising public authority to harm her or conscious indifference to the probability of such harm. She must also prove that the person knew that public power was being abused or was recklessly indifferent to whether the power claimed was conferred by law.

7

The categories of documents which the applicant seeks concern the “how” and the “why” of the circumstances in which she came to be before the Committee in public session, and the “what” and the “when” of knowledge of members of the Committee that they were outside their remit in pursuing her.

8

She wishes to see documents having a bearing on knowledge by members of the Committee that they were requesting her attendance at public sessions in pursuit of an inquiry which was outside the Committee's terms of reference.

9

She also seeks documents relevant to awareness of members of the Committee that they should confine questions or comment to matters agreed in advance between the chairman of the Committee and herself.

10

She seeks any record of legal advice received by the Committee that its proposed engagement with her was in excess of powers or otherwise improper. A newspaper report in late January 2014 alleged that a legal adviser had warned the Committee that it had departed significantly from its remit and that members discussed seeking additional powers.

11

Documents sought include anything tending to show intention of members of the Committee to use public sittings to damage the reputation of the applicant, or reckless indifference to this as a possible consequence. The request includes transcripts and recordings of private sessions of the Committee. It is argued that the tone of words spoken by members of the Committee captured in such recordings may show animus towards the applicant.

12

The period covered by the request for discovery runs from late 2013 to July 2014. In July 2014 the Committee on Procedure and Privileges of Dáil Éireann declined to give compellability powers to the Committee because it was acting outside its remit. The applicant claims that this effort to compel her further attendance before the Committee was an abuse.

13

This Court must dismiss the applicant's application for discovery. I am precluded by Article 15.13 of the Constitution from entertaining this application because the gravamen of her claim calls for judgment on speech and debate by members of Dáil Éireann.

14

Articles 15.10, 15.12 and 15.13 of the Constitution recognise and protect freedom of speech and debate within the Houses of the Oireachtas. The Houses are given autonomy in regulation of parliamentary speech and debate. This autonomy includes autonomy of disciplinary authority over parliamentary speech and debate.

15

The protection extends to proceedings and actions of members in committees of the Houses. Propriety of speech and debate by members in private sessions of a committee of the Houses may not be the subject of litigation. It also covers documents of the Houses and of their committees which relate to speech and debate. The documents which the applicant seeks are intimately connected with protected speech and debate in a committee of Dáil Éireann. As such, they are protected.

16

There may be circumstances in which a court would grant an order for discovery of documents held by Dáil Éireann. The fact that the House has made standing orders under Article 15.10 of the Constitution to protect its official documents from release without consent may not be an absolute bar to a court order for disclosure. Whether a court would compel disclosure may depend on the nature of the issue giving rise to an application for sight of the material. This action is not of a type which would justify such a course.

17

If my reasoning is correct, it must follow that the applicant's claim for damages for misfeasance in public office is not maintainable. Discovery which the first respondent seeks from the applicant will not be necessary. If this action were maintainable, the first respondent would be entitled to the documents sought. I consider that they are relevant and necessary for fair disposal of the claim. I propose to adjourn generally the first...

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