Purtill v Aer Lingus Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 22 November 2023 |
| Neutral Citation | [2023] IEHC 649 |
| Court | High Court |
| Docket Number | 2020 6087 P |
[2023] IEHC 649
2020 6087 P
THE HIGH COURT
Andrew Walker SC and Donal O'Rourke for the plaintiff instructed by Holmes O'Malley Sexton
Paul Sreenan SC and Graham Quinn for the defendant instructed by Flynn O'Driscoll
JUDGMENT of Mr. Justice Garrett Simons delivered on 22 November 2023
This judgment is delivered in respect of an application for the discovery of documents. The proceedings take the form of a personal injuries action. The Plaintiff asserts that, during the course of her employment as a flight attendant with Aer Lingus, she suffered injuries as a result of what she describes as a “ hard” or “ abrupt” landing. More specifically, it is asserted that the aircraft upon which she had been working during a transatlantic flight on 28 June 2019 made an abrupt and/or hard landing at Boston Airport, as a result of which she sustained personal injuries.
One of the principal areas of dispute between the parties centres on whether it is appropriate to direct discovery of records of flight data monitoring and cockpit voice recordings. The resolution of this dispute requires consideration of Regulation (EU) No 996/2010 on the investigation and prevention of accidents and incidents in civil aviation.
The question of whether a category of documents is relevant falls to be determined by reference to the pleadings. The scope of the issues which arise for the trial and which, thus, inform the extent of the documentation which may be considered relevant, is determined by the way in which the parties choose to plead their case ( Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 I.R. 211 (at paragraph 57)).
The position has been put as follows by the Court of Appeal in O'Brien v. Red Flag Consulting Ltd [2021] IECA 172 (at paragraph 27):
“[…] A document is relevant if it may reasonably form the basis of a line of enquiry which may lead to the discovery of information that will advance the case of the seeker and/or weaken that of the party against whom it is sought. It is sufficient that a document may contain such information. It is not necessary to prove that it will. Relevance is determined on the basis of the pleadings and not the evidence. A plea must be taken at its high watermark and it is generally not the role of the court to embark on an enquiry as to the strength of the case or the probability of proving a pleaded fact. However, it is not open to a party to submit a bare and unparticularised plea in the hope of using discovery to obtain evidence in support of a claim that is not particularised. In particular, a document cannot be sought for the purposes of demonstrating the existence of a claim where there is no other evidence to suggest that one exists. Discovery may be permitted for the purposes of evidencing a sparsely particularised claim where the impugned activity is alleged to have been committed in a surreptitious and clandestine fashion.”
The fact that a document may be confidential is something which goes to the question of whether an order for discovery is necessary. Where an application for an order for discovery is made in respect of confidential documentation, the court should only order discovery in circumstances where it becomes clear that the interests of justice in bringing about a fair result of the proceedings require such an order to be made ( Tobin v. Minister for Defence [2019] IESC 57, [2020] 1 I.R. 211 (at paragraph 42)). A court will adopt appropriate measures to respect the importance of confidentiality by ensuring that it is only displaced when the production of confidential documentation proves truly necessary to the just resolution of proceedings ( ibid, at paragraph 44).
The approach to be taken to an application for the discovery of confidential documents has recently been considered by the Court of Appeal in Ryan v. Dengrove DAC [2022] IECA 155 and in A.B. v. Children's Health Ireland (CHI) at Crumlin [2022] IECA 211.
These judgments emphasise that the court must engage in a balancing exercise as follows ( Ryan v. Dengrove DAC at paragraph 67(7)):
“In that context, a balance has to be struck between the likely materiality of any given document to the issues likely to arise in the proceedings and the degree of confidentiality attaching to it. A confidential document (and particularly one that is highly confidential) should not be directed to be discovered unless the court is satisfied that there is a real basis on which it is likely to be relevant at the hearing. The more material the document appears to be — the greater the likelihood that the document will have ‘ some meaningful bearing on the proceedings’ — the more clearly the balance will be in favour of disclosure. Such an assessment necessarily requires the court to look beyond the threshold test of Peruvian Guano relevance. The ‘ nature and potential strength of the relevance’, and the degree to which the document is likely to advance the case of the requester, or damage the case of the requested party, are appropriate considerations in this context.”
The Court of Appeal indicated (at paragraph 67(9)) that an incremental approach to the discovery of confidential material may be appropriate as follows:
“It must always be remembered that contested issues of discovery are almost always addressed in advance of trial. The court must assess issues of relevance and necessity on the basis of the pleadings. At that stage, it will be difficult to predict the course of the trial. As proceedings move closer to hearing, some issues will loom larger and other will recede in significance. At the hearing of a discovery application, it may be very difficult to confidently assess the extent to which a document or category of documents (which, generally, the court will not have reviewed) will bear upon the resolution of any of the issues in dispute. The court will be concerned to adopt the approach that involves the least risk of injustice. Accordingly, where there appears to be any material risk that refusing discovery could give rise to unfairness, the court should generally err in favour of directing discovery (if necessary, on terms).”
The disclosure of records relating to civil aviation safety investigations is constrained by Regulation (EU) No 996/2010 on the investigation and prevention of accidents and incidents in civil aviation (“ EU Regulation”). The EU Regulation reflects the provisions of Annex 13 of the Convention on International Civil Aviation signed in Chicago on 7 December 1944 (“ Chicago Convention”) which lays down international standards and recommended practices for aircraft accident and incident investigation.
The EU Regulation is directly applicable in the domestic legal order. Certain administrative details in respect of the precursor to the EU Regulation are addressed under the Air Navigation (Notification and Investigation of Accidents, Serious Incidents and Incidents) Regulations 2009 ( S.I. 460 of 2009). These regulations provide that the authority concerned with the conduct of an investigation shall not make certain prescribed records available to any person for purposes other than such an investigation unless the High Court directs disclosure. (See, generally, Ryanair Ltd v. Besancon [2021] IECA 110).
The restrictions on disclosure are, for the most part, directed to records in the possession of, or prepared by, the safety investigation authority. These include, for example, statements taken by the safety investigation authority in the course of the safety investigation, and drafts of preliminary or final reports or interim statements.
The position in respect of flight data monitoring records and cockpit voice and image recordings is different. The disclosure of such records is precluded without reference to the identity of the entity in whose possession the records are held. Put otherwise, the preclusion on disclosure is not directed solely to the safety investigation authority. This, presumably, is intended to reflect the particular sensitivity of records of this type: the records are protected irrespective of whose hands they are in.
Article 14 of the EU Regulation, in relevant part, reads as follows:
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1. The following records shall not be made available or used for purposes other than safety investigation:
(g) cockpit voice and image recordings and their transcripts, as well as voice recordings inside air traffic control units, ensuring also that information not relevant to the safety investigation, particularly information with a bearing on personal privacy, shall be appropriately protected, without prejudice to paragraph 3.
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2. The following records shall not be made available or used for purposes other than safety investigation, or other purposes aiming at the improvement of aviation safety:
(a) all communications between persons having been involved in the operation of the aircraft.
[…]
Flight data recorder recordings shall not be made available or used for purposes other than those of the safety investigation, airworthiness or maintenance purposes, except when such records are de-identified or disclosed under secure procedures.
The preclusion on disclosure is subject to the following proviso at Article 14(3) of the EU Regulation:
3. Notwithstanding paragraphs 1 and...
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