University College Cork - National University of Ireland v Electricty Supply Board

JurisdictionIreland
Judgethe President
Judgment Date22 September 2017
Neutral Citation[2017] IECA 248
Date22 September 2017
CourtCourt of Appeal (Ireland)
Docket Number[C.A. No. 92 of 2016],Neutral Citation Number: [2017] IECA 248
BETWEEN
UNIVERSITY COLLEGE CORK – NATIONAL UNIVERSITY OF IRELAND
RESPONDENT
AND
ELECTRICITY SUPPLY BOARD
APPELLANT

[2017] IECA 248

Ryan P.

The President

Neutral Citation Number: [2017] IECA 248

[2016 No. 92]

THE COURT OF APPEAL

Procedural motion – Additional evidence – Exclusion of evidence – Appellant seeking exclusion of evidence – Whether evidence was inadmissible

Facts: The appellant, the Electricity Supply Board (ESB), was held liable by the High Court to the respondent, University College Cork (UCC), for damage by flooding that happened in November 2009 and UCC was held blameworthy of contributory negligence. In a judgment dated 5th October 2015 the High Court concluded that the apportionment of liability was 60% to be borne by the ESB and 40% by UCC. The ESB appealed to the Court of Appeal against the finding of liability in favour of UCC and the latter contested the finding of contributory negligence. The appeal was fixed for hearing over a number of dates in November 2017. A procedural motion arose concerning additional or further evidence that UCC intended to adduce on the hearing of the appeal, if it was permitted to do so. The evidence sought to be introduced was contained in a report of Mr Faulkner of 13th March 2017 concerning events during storms that occurred on two dates in December 2015. UCC maintained that it was not required to apply for or to obtain any special leave to adduce the evidence but the ESB contended otherwise. The matter arose in the course of case management and the parties were in accord that it was desirable and necessary that the position regarding the evidence should be clarified in advance. In view of UCC's position as to its entitlement to put the disputed evidence before the court, the ESB brought its motion to have the evidence excluded.

Held by Ryan P that the proposed further evidence was inadmissible on grounds of relevance, necessity, convenience and material gain in respect of doing justice in the case. Ryan P held that it would be contrary to principle and authority to permit it.

Ryan P held that the Court would exclude Mr Faulkner's report.

Leave to admit additional evidence refused.

Judgment of the President delivered on 22nd September 2017
The Motion
1

The appeal in which this procedural motion arises is in respect of the judgment and orders made by the High Court whereby the ESB was held liable to UCC for damage by flooding that happened in November 2009 and UCC was held blameworthy of contributory negligence. In a lengthy judgment dated 5th October 2015 the High Court concluded that the apportionment of liability was 60% to be borne by the ESB and 40% by UCC. The ESB appeals against the finding of liability in favour of UCC and the latter contests the finding of contributory negligence. The appeal is fixed for hearing over a number of dates in November 2017. The motion the subject of this judgment concerns additional or further evidence that UCC intends to adduce on the hearing of the appeal, if it is permitted to do so. The evidence sought to be introduced is contained in a report of Duncan Faulkner of 13th March 2017 concerning events during storms that occurred on two dates in December 2015. UCC maintains that it is not required to apply for or to obtain any special leave to adduce the evidence but the ESB contends otherwise. The matter arose in the course of case management and the parties are in accord that it is desirable and even necessary that the position regarding the evidence should be clarified in advance, which is the procedure approved generally by the Supreme Court. In view of UCC's position as to its entitlement to put the disputed evidence before the court, the ESB brought its motion to have the evidence excluded. Since it is a procedural question arising in an appeal I have jurisdiction to decide the issue.

The Further Evidence sought to be Introduced
2

Mr. Duncan Faulkner, a member of the firm of JBA Consulting, is a hydrologist who gave evidence at the trial in the High Court. He produced a report in March 2017 based on information obtained from the ESB. At paragraph 1, he sets out the purpose of his report as follows:

'In this note, I make some observations on the operation of the Lee Reservoirs during the floods of December 2015. I have concentrated on two events: Storm Desmond on 4-6 December and Storm Frank on 29-30 December. I have noted several aspects of the reservoir operation that appear to differ from what was stated during the trial.'

3

Mr. Faulkner provides information as to reservoir levels, inflows and discharges as stated in data provided by the ESB on 25th April 2016, and based on the data supplied, he calculated inflows to the reservoirs and discharges. He provides details under headings as to levels in advance of floods, spilling in advance of floods, spilling during floods and spilling in aftermath of floods. He does not identify the statements made during the trial with which this material is inconsistent, but it is to be understood that his information and conclusions or comments reflect his view that the information provided by the ESB as to what happened during these two storms in December 2015 describes 'several aspects of the reservoir operation that appear to differ from what was stated during the trial'.

4

Counsel for UCC, Mr. Declan McGrath SC submitted that the new report will ground the submission that on the occasions of these significant flood events in December 2015 the ESB were able to manage their dam and provide flood alleviation without having a standard and were also able to reduce their water levels down to the top operating level for non-flood conditions by spilling and not solely by generating.

The Rules
5

The rules relevant to the question that arises on the motion are contained in O 86A, r. 4(a), (b) and (c). They are as follows:

'4. Subject to the provisions of the Constitution and of statute—

(a) the Court of Appeal has on appeal full discretionary power to receive further evidence on questions of fact, and may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner,

(b) further evidence may be given without special leave on any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought,

(c) on any appeal from a final judgment or order, further evidence (save as to matters subsequent as mentioned in paragraph (b)) may be admitted on special grounds only, and only with the special leave of the Court of Appeal (obtained by application by motion on notice setting out the special grounds)

UCC's Case
6

UCC argues that special leave is not required to adduce the report because it comes within the provision of O. 86A, r. 4(b) as evidence 'as to matters which have occurred after the date of the decision from which the appeal is brought'. Although the rule does not say so, according to the authorities the court has a discretion as to whether to admit the evidence, which should be exercised in this case in favour of admission.

7

Mr. McGrath SC submitted that the evidence in Mr. Faulkner's report is relevant first because of a contention by the ESB in the High Court and in their Notice of Appeal that it is simply not possible for the ESB to engage in flood alleviation without having a standard to which they can operate. UCC wants to introduce the evidence to demonstrate that in December 2015, the ESB were able to operate their dams in a way that reduced or almost eliminated downstream flooding without having a standard in place and so they did not need a standard.

8

Secondly, he argues that the ESB's position is that water cannot be spilled down to desired or appropriate levels but rather can only be generated down and this evidence demonstrates that they can and did on this occasion spill water to get down to the specified level in advance of these storms taking place and floodwaters coming into the reservoirs, and again, that deals with the point that is raised in the Notice of Appeal.

9

Thirdly, it was said that advance discharges are limited to the downstream channel capacity of 150 cubic metres per second and this further evidence demonstrates that in relation to these storms, advance discharges took place at a level higher than that, even when the inflows to the reservoirs were below 150 cubic meters per second.

10

Mr. McGrath referred to the ESB's cited case of Rye Investments v Competition Authority [2012] IESC 52 that the touchstone of the exercise of the discretion is relevance. Counsel said that these facts in the Faulkner report assist UCC in establishing that the ESB criticisms of the judgment are not well-founded. It is submitted that if the report is not admitted, UCC will be deprived of evidence that is supportive of its opposition to ESB's appeal. It is therefore clearly in the interests of justice that the report is admitted.

11

On the question as to how the evidence of Mr. Faulkner, if permitted to be adduced, would be tested, Mr. McGrath said that there was no need to test it because it is information entirely provided by the ESB and:

'There is very little by way of analysis in the sense of he is not expressing opinions in relation to matters. He is just simply, if you like, taking ESB data and has presented it to the court in a user friendly and legible form.'

12

He said that is not expressing opinions and is not revising opinions he gave in the High Court. However, it seems to me that he is undoubtedly saying that this material is in conflict with evidence given by the ESB in the High Court.

Relevant Grounds of Appeal and Issues
13

The ESB's Notice of Appeal grounds 21(d) and 30 are as follows.

'21. The Lee Regulations do not fail to "deal with" floods less than the design storm.'

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