Tobin v The Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 09 July 2018
• Neutral Citation: [2018] IECA 230
• Docket Number: Neutral Citation Number: [2018] IECA 230
• Court: Court of Appeal (Ireland)
• Date: 09 July 2018

BETWEEN/

GAVIN TOBIN

PLAINTIFF/RESPONDENT

- AND -

THE MINISTER FOR DEFENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

[2018] IECA 230

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2018] IECA 230

Record No. 2016/579

THE COURT OF APPEAL

Discovery – Personal injuries – Damages – Appellant seeking to appeal against the breadth of an order of the High Court – Whether the application for discovery was premature

Facts: The plaintiff/respondent, Mr Tobin, sought damages against the first defendant/appellant, the Minister for Defence, in respect of personal injuries which he claimed to have suffered through allegedly being exposed to toxic chemicals whilst employed as an aircraft mechanic while serving with the Aer Corps at Casement Aerodrome between January 1989 and September 1999. The defendants/appellants appealed to the Court of Appeal against the breadth of an order of the High Court (McDermott J) dated the 14th October 2016 which in turn followed a reserved judgment delivered on the 7th October 2016. The effect of that order was that the Minister was ordered to make discovery to the plaintiff of thirteen categories of documents dating back as far as 1990.

Held by Hogan J that he would allow the appeal so far as categories 2, 5, 6, 10, 11 and 14 were concerned on the ground that the application for discovery in respect of those categories of documents was premature.

Hogan J held that he would allow the appeal and vary the orders of the High Court.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of July 2018

1 Judicial concerns regarding the breadth of discovery orders have been expressed with increasing frequency and – perhaps it would even more correct to say – stridency in the last two decades or so. As I observed in IBM Internet Services Ltd. v. Motorola Ltd. [2015] IECA 282:

‘experience has regularly shown that the practical benefits of such discovery is often entirely outweighed by the costs and delays in the entire process. How often is it the case that even in complex litigation only a relatively small number of documents prove to be the important ones, despite the generation of thousands of documents in the course of the discovery process, most of which are never used or deployed in court?’

2 Similar concerns had also been expressed by Kelly J. in Astrazeneca AB v. Pinewood Laboratories Ltd. [2011] IEHC 159 where he stated that the principles of proportionality governing discovery requests required an assessment of ‘the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of an applicant or damage the case of his opponent.’ Kelly J. added that the public interest in the proper administration of justice ‘is not confined to the relentless search for the perfect truth.’

3 Similar concerns had also been voiced by Fennelly J. in Ryanair Plc v. Aer Rianta Cpt [2003] 4 I.R. 264, 277 where he said:

‘The change made to O. 31, r. 12, in 1999, exemplifies, however, growing concern about the dangers of unnecessarily costly and protracted litigation and, in particular, the burdens on parties and the courts arising from excessive resort to automatic blanket discovery. The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy.’

4 This and other contemporary case-law demonstrates that it is thus necessary for this Court to ensure that the discovery does not potentially overwhelm the action or impose unreasonable burdens on the parties.

5 In its own way the present appeal provides almost a paradigm example of these difficulties. The plaintiff in the present proceedings seeks damages against the Minister for Defence in respect of personal injuries which he claims to have suffered through allegedly being exposed to toxic chemicals whilst employed as an aircraft mechanic while serving with the Aer Corps at Casement Aerodrome between January 1989 and September 1999.

6 The present appeal concerns an order of the High Court (McDermott J.) dated the 14th October 2016 which in turn followed a reserved judgment delivered on the 7th October 2016. The effect of this order was that the Minister was ordered to make discovery to the plaintiff of thirteen categories of documents dating back as far as 1990: Tobin v. Minister for Defence [2016] IEHC 547. Of these categories, far and away the most burdensome is the request contained in category 2 and I will consider this particular category presently.

The background to the present proceedings

7 The present proceedings commenced by way a personal injuries summons dated the 21st January 2014. According to his pleadings, Mr. Tobin worked as an aircraft mechanic serving with the Aer Corps at Casement Aerodrome, Baldonnel. He pleads that he finished the Aer Corp Apprentice School Training in July 1991 and was then assigned to the Engine Repair Flight Workshop (‘the ERF’), a workshop area at Casement Aerodrome, for 10 weeks before being assigned to various other locations for a period of 30 weeks. He then returned to the ERF, where he was employed until February 1994 when he was transferred to another section.

8 Mr. Tobin's case against the Minister may be broken down into two separate, but related, categories of alleged wrongdoing, namely (a) that in the course of his employment as an aircraft mechanic at Baldonnel, he was exposed, through the handling of equipment and inhalation, to toxic chemical fumes; and (b) that he was on occasion subjected to what appears to have been a sort of initiation rite by means of a practice known as ‘tubbing’. This involved his entire body being doused with chemicals by other Aer Corps personnel while he was tied to a stretcher.

9 Insofar as (a) is concerned, the only area within Baldonnel which has been identified as a location at which Mr. Tobin was actually exposed to toxic chemical fumes is the ERF, albeit that McDermott J. held that this does not mean that other parts of the aerodrome were not also relevant. Insofar as (b), the alleged ‘tubbing’, is concerned Mr. Tobin identified only one alleged incident which is said to have occurred at the Light Strike Squadron. It is against this background that Mr. Tobin has claimed that the Minister was guilty of negligence etc. in the manner in which he was provided with a system of work in that he was required to work in a hazardous environment; that he not provided with appropriate training or equipment; that the Minister failed to identify that the chemicals with which he was working were hazardous and that he was provided with ineffective gloves and poor ventilation.

10 Mr. Tobin sought fifteen categories of discovery from the Minister. He responded by offering to make discovery of nine categories, six of which were in precisely the same wording as was sought by the plaintiff. The Minister objected to discovery in these terms because of its burdensome terms. Specifically, the documentation sought related mainly to purchase orders and similar documentation in relation to the purchase of aircraft solvents and other documentation. The uncontested evidence in the High Court was that it would take 10 members of staff – all of whom would have to be diverted from their existing duties - some 220 man hours to review, locate and categorise the documents of which the plaintiff had sought discovery. Many of these records are held only in manual form and are stored in a variety of locations. Given their provenance and age it is simply inevitable that the burden involved in seeking out and cataloguing documents of this kind dating back some 28 years is likely to be very considerable.

The judgment of the High Court

11 In his judgment McDermott J. made orders providing for what amounts to extensive discovery in favour of the plaintiff. In his judgment he disagreed with the Minister's analysis of the case and which was based on an analysis of the plaintiff's pleadings that the only location at which he claimed he was exposed to toxic fumes was the ERF. McDermott J. also ruled that the nature of the claim ‘necessarily requires that this burden of discovery be imposed upon the defendants.’

Modern discovery practice

12 In its own way, this appeal serves to illustrate the crisis – and there really is no other word for it – now facing the courts regarding the extent of burdens, costs and delays imposed on litigants and the wider legal system by the discovery process as it presently operates. I should say immediately that this is not intended in any sense as a criticism of the plaintiff or his legal advisers. They have quite properly sought to follow and apply the existing discovery rules and practice for the benefit of their client. It is rather the existing discovery rules and practice which have become the problem in terms of the burdensome nature of discovery, the significant costs of which are imposed on litigants and, not least, the delays which are entailed in the entire discovery process.

13 The existing rules and practice trace their lineage to the famous words of Brett L.J. in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D. 55, 63 where he said:

‘It seems to me that every document which relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the...