MB v Collins

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR. JUSTICE MICHAEL PEART
Judgment Date17 May 2018
Neutral Citation[2018] IECA 146
Date17 May 2018
Docket NumberNeutral Citation Number: [2018] IECA 146

[2018] IECA 146

THE COURT OF APPEAL

Peart J.

Peart J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2018] IECA 146

Record Number: 2017/422

BETWEEN:
MB
PLAINTIFF/APPELLANT
- AND -
MARY COLLINS, MARY CHRISTIAN, CHRISTINA GORMAN, NOREEN O'SHEA, THE ARCHDIOCESE OF DUBLIN, THE MINISTER FOR EDUCATION AND SKILLS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
DEFENDANTS/RESPONDENTS

Damages – Discovery – Residential Institutions Redress Act 2002 – Appellant seeking damages – Whether the trial judge ought to have ordered discovery

Facts: The plaintiff/appellant commenced High Court proceedings by way of plenary summons seeking damages. The defendants/respondents, Ms Collins, Ms Christian, Ms Gorman, Ms O’Shea, the Archdiocese of Dublin, the Minster for Education and Skills, the Minister for Justice and Equality, Ireland and the Attorney General, applied to dismiss the plaintiff’s proceedings because the plaintiff previously made an application for an award of compensation under the redress scheme established under the Residential Institutions Redress Act 2002 and accepted an award made by the Residential Institutions Redress Board. They sought discovery of the information and/or evidence that was before the Redress Board when it made the award. On the 28th July 2017, the High Court (White J) ordered discovery, included the award made, and the waiver signed by the plaintiff as required by s. 13 of the 2002 Act. The trial judge further ordered that the defendants may adduce before the Court such documents and/or evidence pursuant to s. 28(5A) of the 2002 Act, and further, that all information obtained by way of such discovery was to be treated as confidential information and was to be used solely for the purposes of the proceedings. The plaintiff appealed to the Court of Appeal against that order.

Held by Peart J that the trial judge was correct to reject the plaintiff’s arguments based on s. 28 of the 2002 Act and correct in his conclusions in relation to the plaintiff’s submissions under the Data Protection Act 1988. Peart J held that the plaintiff could not rely on any understanding or even contractual obligation on the part of the Board that such information would never and under no circumstances be disclosed, where it was the plaintiff alone who commenced the proceedings, which arguably were in breach of s. 13(6) of the 2002 Act, and where the legislative provisions identified actually permit disclosure where it is necessary for the administration of justice.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 17th DAY OF MAY 2018
1

The Appeal in the above matter was heard in conjunction with the appeals in respect of four other appeals in which the same issues arise for determination in advance of certain motions by the defendants to dismiss all these proceedings in limine for the reasons explained hereunder. Those other appeals arise in similar proceedings commenced against various defendants, by plaintiffs AJ, ND, CW and KW, and bear appeal record numbers: 419/2017, 420/2017, 421/2017, 423/2017.

2

The issue on these appeals is whether the High Court (White J.) was correct to order discovery of the plaintiffs' documents and/or evidence relating to their application to the Residential Institutions Redress Board for a financial award under the scheme established under the Residential Institutions Redress Act, 2002 (‘the Act’). The discovery ordered in respect of each plaintiff included the award made, and the waiver signed by each as required by s. 13 of the Act. The trial judge further ordered that the defendants may adduce before the Court such documents and/or evidence pursuant to s. 28(5A) of the Act, as inserted by s. 34 of the Commission to Inquire Into Child Abuse (Amendment) Act, 2005 (‘the 2005 Act’), and further, that all information obtained by way of such discovery was to be treated as confidential information and was to be used solely for the purposes of the proceedings.

3

That order was made in each case on the 28th July 2017 in the context of the defendants' applications to dismiss the various plaintiffs' High Court proceedings which they have subsequently commenced by way of plenary summons seeking damages under a number of headings arising from their experiences in the various institutions in which they were placed during their childhood. Each plaintiff's case is necessarily different on its facts, but the matters to be determined on this appeal are the same.

4

The defendants are seeking to have those proceedings dismissed because each plaintiff previously made an application for an award of compensation under the redress scheme and accepted an award made by the Board. That fact is not in dispute. Each plaintiff will have signed a waiver when accepting such award as required by s. 13 (6) of the Act which provides:

‘(6) Where an applicant accepts an award (including an award reviewed under section 15 the applicant shall agree in writing to waive any right of action which he or she may otherwise have had against a public body or a person who has made a contribution under section 23(5) and to discontinue any other proceedings instituted by the applicant, against such public body or such person, that arise out of the circumstances of the application before the Board.’

5

Section 13(12) of the Act is also relevant. It provides:

‘(12) An applicant who receives an award under this Act shall not institute civil proceedings arising out of the same, or substantially the same, acts complained of in an application in respect of which a public body or a person who has made a contribution under section 23(5) is a party if such proceedings concern the institution referred to in section 28(4)(b) and the period of residence at that institution referred to in section 28(4)(c).’

6

Quite apart from the inability at common law to achieve double recovery for the same injury, there is in the present cases a specific statutory prohibition in that regard.

7

The defendants consider, and wish to argue on their applications to dismiss, that in their proceedings the plaintiffs are seeking to recover damages in respect of the same injury or substantially the same injury as that for which they accepted an award under the Act, and accordingly that these proceedings must be dismissed in limine. For that reason they seek discovery of the information and/or evidence that was before the Redress Board when it made the award. They consider that such material is both necessary and relevant to the issues arising on their motions to dismiss, as it will establish whether or not the injuries for which they received their award are the same or substantially the same as those for which damages are claimed in these proceedings.

Section 28 of the Act
8

The solicitor who has represented all these plaintiffs, Ms. McMahon, has resisted the application for disclosure of this material on a number of grounds, including that, on what she contends to be the proper interpretation of s. 28 of the Act, the plaintiffs may not disclose the information to the defendants without being in breach of the confidentiality attaching to that material and information under the Act, and would commit an offence. Article 28 (as amended by s. 34 of the 2005 Act by the insertion of subsections 5A and 5B) provides:

‘28(1) A person (including the Board and the Review Committee) shall not, subject to this section, disclose information other than the information specified in subsection ( 4) or (5) that is provided to the Board or the Review Committee and obtained by that person in the course of the performance of the functions of the person under this Act.

(2) A person referred to in subsection (1) shall disclose information so referred to for the purpose of the performance of the functions of the person under this Act.

(3) Documents that are (a) provided to or prepared by the Board and where appropriate the Review Committee, or (b) prepared by a person for the Board or the Review Committee in the course of the performance of the functions of such person as a member of the Board, Review Committee, a member of the Board or the review Committee or an adviser, shall not constitute...

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