Student Transport Scheme Ltd v The Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 29 March 2021
• Neutral Citation: [2021] IESC 22
• Court: Supreme Court
• Docket Number: [Appeal No: 116/2016]
• Date: 29 March 2021

Between/

Student Transport Scheme Limited

Applicant

and

The Minister for Education and Skills

Respondent

and

Bus Eireann

Notice Party/Respondent

[2021] IESC 22

Clarke C.J.

O'Donnell J.

MacMenamin J.

Charleton J.

O'Malley J.

[Appeal No: 116/2016]

THE SUPREME COURT

Discovery – Leave to appeal – Breach of law – Applicant seeking discovery – Whether the applicant had demonstrated that very exceptional circumstances existed

Facts: The applicant, Student Transport Scheme Ltd (Student Transport), commenced proceedings alleging various breaches of law against both the respondent, the Minister for Education and Skills, in respect of the conduct of elements of a scheme designed to provide transport for school students, and against the notice party/respondent, Bus Eireann, as the party who was operating those parts of the scheme which were argued by Student Transport to be in breach of law. The proceedings failed in the High Court ([2012] IEHC 425) and in the Court of Appeal ([2016] IECA 152). Student Transport then sought leave to appeal to the Supreme Court. For the reasons set out in a determination dated 10th October, 2016 ([2016] IESCDET 123), the Court declined to grant leave to appeal. Student Transport sought to bring an application before the Court on foot of the Greendale jurisprudence (Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514), under which it is possible, in very limited circumstances, to seek to reopen a matter such as the failed application for leave to appeal in this case. In accordance with Practice Direction SC17, the question of whether Student Transport should be allowed bring such an application was considered by the Chief Justice, who came to the view that it was appropriate, in all the circumstances, to allow the application to be brought. Thereafter, the application was the subject of case management at which Student Transport, the Minister and Bus Eireann were represented. The substantive application, in which it was sought to permit the question of leave to appeal to be reopened, was listed for hearing before the Court. In the context of that application, it was suggested on behalf of Student Transport during case management that it should be entitled to discovery of certain documents.

Held by Clarke CJ that he did not consider that Student Transport had demonstrated that there was a real and substantial risk that the absence of disclosure of any or all of the documents sought might give rise to a situation where an order which ought, in accordance with the Greendale jurisprudence, to be considered a nullity, would nonetheless stand. In those circumstances, Clarke CJ held that it would be a matter for Student Transport to seek to persuade the Court that the high Greendale threshold had been met on the basis of the materials already filed.

Clarke CJ held that he agreed with the view of the Court that the application for discovery should be refused.

Application refused.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 29th of March, 2021.

1. Introduction

1.1 These proceedings have a very long history but the issue to which this judgment relates is novel and important. The plaintiff/applicant (“Student Transport”) commenced these proceedings alleging various breaches of law against both the respondent (“the Minister”), in respect of the conduct of elements of a scheme designed to provide transport for school students, and against the notice party/respondent (“Bus Eireann”), as the party who was operating those parts of the scheme which were argued by Student Transport to be in breach of law.

1.2 The proceedings failed in the High Court (see- Student Transport Scheme Ltd. v. Minister for Skills and Education [2012] IEHC 425) and in the Court of Appeal (see- Student Transport Scheme Ltd. v. Minister for Skills and Education [2016] IECA 152). Student Transport then sought leave to appeal to this Court. For the reasons set out in a determination dated 10th October, 2016 (see- Student Transport Schemes Ltd. v. Minister for Skills and Education [2016] IESCDET 123), this Court declined to grant leave to appeal so that the proceedings were, substantively, at an end.

1.3 However, Student Transport has recently sought to bring an application before this Court on foot of what is regularly referred to as the “ Greendale” jurisprudence (see- Re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514), under which it is possible, in very limited circumstances, to seek to reopen a matter such as the failed application for leave to appeal in this case. In accordance with Practice Direction SC17, the question of whether Student Transport should be allowed bring such an application was considered by the Chief Justice, who came to the view that it was appropriate, in all the circumstances, to allow the application to be brought. Thereafter, the application was the subject of case management at which Student Transport, the Minister and Bus Eireann were represented. The substantive application, in which it is sought to permit the question of leave to appeal to be reopened, is currently listed for hearing before this Court next month.

1.4 However, in the context of that application, it was suggested on behalf of Student Transport during case management that it should be entitled to discovery of certain documents. It is to that issue that this judgment is directed.

2. The Procedure

2.1 The procedure for bringing a Greendale application is set out in Practice Direction SC17. In cases where permission to bring the application is given, the substantive matter is dealt with, in accordance with that practice direction, by originating motion.

2.2 When the question of discovery arose during case management, directions were given requiring all three parties to set out their position. In the context of Student Transport, it was required that correspondence be sent to the other two parties, and copied to the Court, setting out the discovery which was sought and setting out its argument as to why such discovery should be ordered. In that context, specific attention was drawn during case management to the need to address the question of the circumstances in which it might be appropriate to direct discovery in the unusual circumstances of an application such as this, where there has been a final order of this Court bringing proceedings to an end but where it is sought to reopen the proceedings through the mechanism of a Greendale motion.

2.3 Both the Minister and Bus Eireann were required to respond by correspondence, again to be filed in court, setting out the position of those parties both on the matter of principle as to the proper approach to discovery in circumstances such as this and their submissions on the specific request for discovery to be made by Student Transport. Thus the issues between the parties in respect of this discovery matter were set out in correspondence filed as a result of directions from the Court.

2.4 An oral hearing followed on 18 March, 2021. Having considered the written and oral submissions, the Court communicated to the parties that it would not direct discovery. It was further intimated that reasons for coming to that conclusion would be set out in a judgment to be circulated later. This judgment is directed towards setting out those reasons. It seems to me to be appropriate to turn first to the issue of principle.

3. The Principle

3.1 The starting point has to be to acknowledge the important constitutional framework within which these issues arise. Article 34.5.6 of the Constitution is in brief but clear terms. It states “the decision of the Supreme Court shall in all cases be final and conclusive”. In cases such as Greendale itself, but also in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, it has been recognised that there may be “rare and exceptional” cases where this Court can properly exercise a jurisdiction to set aside a final judgment of this Court and thus, in substance, bypass Article 34.5.6. However, it is also clear that the jurisdiction in question can only be exercised “where there was a clear breach of a constitutional right or justice” (see- Bula at p. 438).

3.2 It is for that reason that the procedures contained in Practice Direction SC 17 have been put in place. To simply allow a party to bring an application to set aside a final order of this Court, without any filter, would be a breach of the clear language of Art. 34.5.6 and would be contrary to the “rare and exceptional” nature of the jurisdiction to set aside. It is for that reason that a party wishing to bring such an application must file the papers on which it intends to rely so that they can be considered either by a judge or a panel of judges. The purpose of that procedure is to enable the judge or panel, as the case may be, to ascertain whether there is any sufficient basis for considering that the “rare and exceptional” jurisdiction might be exercised. If the judge or panel concerned is not so satisfied, then the application will not even be permitted to be brought.

3.3 However, it seems to me that the clear language of Art. 34.5.6., and the very limited nature of the Greendale jurisdiction as set out in the jurisprudence, also carries with it additional implications for the process. In that context, I fully agree with the submissions principally made by counsel for Bus Eireann (but also adopted by counsel for the Minister), which suggested that an application for discovery in the context of a so-called Greendale motion could not be determined on the same basis as an ordinary application for discovery made while a case was, for example, pending trial in the High...