Popovici and Another v Nicholson and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice de Valera
• Judgment Date: 26 April 2006
• Neutral Citation: [2006] IEHC 152
• Docket Number: No. 483 J.R./2004
• Court: High Court
• Date: 26 April 2006

[2006] IEHC 152

THE HIGH COURT

No. 483 J.R./2004

POPOVICI & ANDREEVA v NICHOLSON & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) AND IN THE MATTER

OF THE IMMIGRATION ACT 1999 AND IN THE MATTER OF THE ILLEGAL

IMMIGRANTS (TRAFFICKING ACT 2000 )

BETWEEN

LEONID POPOVICI AND ANNA ANDREEVA

APPLICANTS

AND

JAMES NICHOLSON, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AIB BANK PLC v ERNST & WHINNEY 1993 1 IR 375

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED

AYAYA v MIN JUSTICE & ORS 2003 2 IR 93

RSC O.31

RSC NO 10 APPENDIX C

PRACTICE AND PROCEDURE

Discovery

Judicial review- Leave not contested - Claim of bias - Statistics not already available - Fishing exercise - Whether respondent required to compile statistics - Discovery of existing documents ordered (2004/483JR -de Valera - 26/4/2006) [2006] IEHC 152 Popovici v Refugee Appeals Tribunal

the applicant obtained leave to apply for judicial review of a decision of the first respondent on the basis, inter alia, that he had a reasonable apprehension of bias on the part of the decision maker, evidenced by the pattern of findings made by him and the procedures adopted in assigning cases to him. The applicant thereafter sought discovery of various documents relating to the decisions and procedures of the respondents in the course of conducting appeal hearings in general and with respect to the applicant in particular.

Held by de Valera J in ordering discovery of a limited category of documents that the discovery process was designed to narrow the issues which needed to be resolved between the parties and to facilitate the resolution of the case in as speedy and cost efficient manner as possible. However, the limitation on discovery was that it should not be s fishing exercise and it was not sufficient for an applicant simply to make an assertion which was not based on any substantial fact and then seek discovery in the hope that there would exist documents which supported the contention.

Reporter: P.C.

Mr. Justice de Valera

1 This is an application for the production of certain documents set out in detail at paragraphs (i)-(v) of the notice of motion herein relating to the decisions and procedures of the first and second named respondents in the course of conducting appeal hearings concerning the applicants pursuant to the provisions of the above mentioned Acts of the Oireachtas. The description "discovery" does not appear in the notice of motion but is used in the affidavit of Mr. Durkan, the applicants” solicitor, supporting the application.

2 It should be noted that in the case of paragraph (ii) and paragraph (iii) of the notice of motion paragraphs are further subdivided into (viii) and (ii) divisions respectively.

3 This application is made subsequent to an order for leave to proceed by way of judicial review which was made on the 9th day of February 2005.

4 The application for leave was accompanied by a statement of grounds, supported by an affidavit from Leonid Popovici and subsequently a statement of opposition was filed supported by an affidavit sworn by John English.

5 The applicants” case can be summarised as claiming a general bias on behalf of the first and second named respondents evidenced by the alleged pattern of findings by the first named respondent and the procedures in assigning cases adopted by the second named respondent and a specific complaint concerning the manner in which the first named respondent conducted the appeal hearing in question.

6 The application for leave was not contested by the respondents and the hearing of the substantive judicial review is pending. This application is made in the course of these proceedings.

7 It should be noted that the affidavit of John English, sworn on the 21st April, 2005, pre-dates the letter seeking voluntary discovery dated the 5th May, 2005, and the notice of motion herein which is dated the 18th July, 2005, and anticipates the application for discovery (at paragraph (xv) of John English's affidavit).

8 There is a fourth affidavit sworn on behalf of the respondents on the 18th July, 2005, resisting the application for discovery.

9 In conceding the application for leave to seek judicial review the respondents must be taken to have conceded that there were "substantial grounds" on which to base the applicants” claim. This being so the dictum of Finlay C.J. inAIB Bank Plc. v. Ernst and Whinney [1993] 1 I.R. 375 is relevant:

"The basis purpose and reason for the procedure of discovery… is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of being presented to the court by the parties concerned, so that justice on...