Tobin v Minister for Defence

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date15 July 2019
Neutral Citation[2019] IESC 57
Docket NumberRecord No: 2018/150,[S.C. No. 150 of 2018]
CourtSupreme Court
Date15 July 2019

[2019] IESC 57

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Record No: 2018/150

Between/
Gavin Tobin
Plaintiff/Appellant
And
The Minister for Defence, Ireland

and

the Attorney General
Defendants/Respondents

Discovery – Proportionality – Issue of general public importance – Appellant seeking to appeal against Court of Appeal judgment – Whether the Court of Appeal was in error

Facts: The appeal of the appellant, Mr Tobin, to the Supreme Court, concerned the scope of the order which should be made concerning discovery on oath of documents relevant to the issues which arose in the proceedings. Issues as to how the courts should respond to the difficulties posed by what might be considered to be the disproportionate burden imposed on the parties to litigation by discovery obligations potentially arose on this appeal and it was for that reason that in a determination of the Supreme Court leave to appeal was granted. In doing so, the Court noted that: “…it appears to this Court that there is a question of general public importance involved in the issues which potentially arise on the application for discovery in this case. There may be a case for arguing that the full breadth of discovery which has been traditionally ordered may be disproportionate in modern conditions. But even if limitations can and should appropriately be applied, an issue of general public importance arises as to the precise manner in which a court can or should seek to limit the scope of discovery, if that be permissible and appropriate in the circumstances of the case in question.” On that basis, the Court determined that: “… an issue of general public importance has been identified which concerns the proper overall approach to discovery in modern conditions and in circumstances where the burden of complying with discovery is likely, on the facts of the case in question, to be significant. Obviously, a consideration of that broad issue would be a necessary component part of determining whether the Court of Appeal was correct to narrow the scope of discovery ordered by the High Court in this case. The Court will, therefore, grant leave to appeal on the basis indicated in the application for leave. It will be for the case management judge to deal with any questions concerning the refinement of the grounds which may be permitted to be pursued to ensure that they come within the scope of the issue of general public importance identified.”

Held by Clarke CJ that, while the initial onus of establishing that the disclosure of any particular category of documents is “necessary” for the fair and just resolution of the proceedings at a proportionate cost lies with the requesting party, where that onus is prima facie discharged it is for the requested party to establish that there are other means of achieving the same ends, being a fair and just resolution of the proceedings, which are likely to be capable of being delivered at a significantly reduced deployment of resources. Applying that principle to the circumstances of this case, Clarke CJ concluded that, save in one respect, the Court of Appeal was in error and the High Court correct in relation to the issues which were the subject of this appeal. Clarke CJ was satisfied that it would have been correct for the High Court to have confined the discovery obligation of the State in respect of certain categories to being the period of time during which Mr Tobin was employed in the Engine Repair Flight workshop.

Clarke CJ held that, subject to that minor amendment to the order of the High Court, he would allow the appeal and restore the order of that Court in respect of those categories of discovery which were the subject of the appeal to the Supreme Court.

Appeal allowed.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 15th July, 2019
1.1

This appeal concerns the scope of the order which should be made concerning discovery on oath of documents relevant to the issues which arise in these proceedings. It might well be thought that it would be unlikely that issues concerning discovery would ordinarily meet the criteria set out in the Thirty-third Amendment to the Constitution for an appeal to this Court. In general terms, the principles to be applied in deciding whether or not to order discovery are relatively well settled. It follows that most questions concerning the scope of discovery involve the application of well established principles to the circumstances of an individual case.

1.2

However, there have been a number of judgments of the courts in recent times which have had to grapple with what, at least in certain types of cases, can be the problems associated with potentially very onerous discovery obligations. As will become clear, part of the reasoning of the Court of Appeal in this case derived from such considerations. There are, therefore, issues as to how the courts should respond to the difficulties posed by what might sometimes be considered to be the disproportionate burden imposed on the parties to litigation by discovery obligations.

1.3

Such issues potentially arise on this appeal and it was for that reason that in a determination of this Court ( Tobin v. The Minister for Defence [2018] IESCDET 202) leave to appeal was granted. In doing so, the Court noted that:-

‘…it appears to this Court that there is a question of general public importance involved in the issues which potentially arise on the application for discovery in this case. There may be a case for arguing that the full breadth of discovery which has been traditionally ordered may be disproportionate in modern conditions. But even if limitations can and should appropriately be applied, an issue of general public importance arises as to the precise manner in which a court can or should seek to limit the scope of discovery, if that be permissible and appropriate in the circumstances of the case in question.’

1.4

On that basis, the Court determined that:-

‘… an issue of general public importance has been identified which concerns the proper overall approach to discovery in modern conditions and in circumstances where the burden of complying with discovery is likely, on the facts of the case in question, to be significant. Obviously, a consideration of that broad issue would be a necessary component part of determining whether the Court of Appeal was correct to narrow the scope of discovery ordered by the High Court in this case. The Court will, therefore, grant leave to appeal on the basis indicated in the application for leave. It will be for the case management judge to deal with any questions concerning the refinement of the grounds which may be permitted to be pursued to ensure that they come within the scope of the issue of general public importance identified.’

1.5

While those broad issues potentially inform the proper resolution of this appeal, they nonetheless arise in the context of the particular circumstances of this case and it is necessary, therefore, to start by saying a little about both these proceedings and the way in which the discovery application which now comes before this Court was dealt with in the High Court and the Court of Appeal. I start by setting out a brief account of the proceedings.

2. The Proceedings
2.1

The plaintiff/appellant (‘Mr. Tobin’) was employed by the first named defendant/respondent (‘the Minister’) as an apprentice aircraft mechanic in the Air Corps in 1989. He commenced service at the apprentice school at Casement Aerodrome, Baldonnel, Co. Dublin, in January 1990 and, following his training, he remained stationed at the Aerodrome until his service ceased in September 1999. Mr. Tobin's case is that in the course of his employment he was exposed to dangerous chemicals and solvents and that on one occasion he was subjected to a practice known as ‘tubbing’, which involved being doused with chemicals by other Air Corps personnel. As a result, he alleges that he has suffered personal injury.

2.2

In January 2014, Mr. Tobin issued personal injuries proceedings against the Minister and the other defendants/respondents (‘the State’) in which he attributed the personal injuries he has allegedly suffered to the negligence, nuisance, breach of duty, breach of statutory duty and breach of contract of the State by reason of what is said to be its failure to provide Mr. Tobin with, amongst other things, a safe system of work, a safe place of work, safe and proper equipment, appropriate training and safe and competent fellow employees. From an affidavit sworn on behalf of the State by Captain Nic Caba of the Air Corps, it is apparent that a number of other individuals formerly employed as aircraft mechanics at the Casement Aerodrome have initiated personal injuries proceedings against the State on the same basis.

2.3

Following the commencement of these proceedings, the State requested particulars of the claim, replies to which were furnished by Mr. Tobin in March 2014. In those replies, amongst other things, detail was provided as to Mr. Tobin's employment at Casement Aerodrome. Mr. Tobin specified that his first exposure to solvents and dangerous chemicals was in the Engine Repair Flight workshop (‘the ERF’) in July 1991 and stated that his last exposure to chemicals ‘as part of his day to day employment’ was in February 1994, when he was transferred to Air Support Company Signals to work in IT. A list of those chemicals to which he was allegedly exposed, being those of which Mr. Tobin stated that he was aware, was also provided.

2.4

In the defence delivered by the State in June 2015, every allegation or assertion made by Mr. Tobin in his personal injury summons was denied, save for the fact that it was accepted that he had been employed as an aircraft mechanic at Casement Aerodrome. In effect, Mr. Tobin was put on full proof in relation to his...

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