Supporting Documents:
150-18 AFL.pdf 150-18 Rspndt Notce.pdf

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Plaintiff / Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 9th July, 2018

DATE OF ORDER: 9th July, 2018

DATE OF PERFECTION OF ORDER: 27th September, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 10th October, 2018 AND WAS IN TIME.

General Considerations

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3. In that context it should be noted that the respondent opposes the grant of leave.

Decision

4. As can be seen from the notices referred to earlier, the issue with which this potential appeal is concerned relates to discovery. Orders for the disclosure of documents in the context of civil litigation are commonplace, and issues arising in that context could not meet the threshold of “matter of general public importance” or “interests of justice” which would justify granting leave to appeal to this Court. The application of well-established principles to the facts of a particular case is a matter for the High Court and, potentially, if it is said that the High Court has erred in the proper application of those principles, for the Court of Appeal.

5. It is also true to say that there is some merit in the criticism made in the respondent’s notice filed on behalf of the defendants in the underlying proceedings (“the State”), to the effect that the application for leave to appeal focuses unduly on the merits of the appeal and is limited in the extent to which it seeks to demonstrate that the constitutional threshold is met. However, the real question for consideration on this application for leave to appeal comes down to an issue of whether there is anything new or general in the approach to discovery identified in the judgment of the Court of Appeal in this case which would warrant this Court considering an appeal which would address the proper overall approach to orders of discovery.

6. At para. 18 of his judgment, Hogan J. (speaking for the Court of Appeal) (Tobin v. Minister for Defence & ors. [2018] IECA 230) indicated that there was something seriously amiss with the discovery system as it currently operates and that it behoves courts to seek out and to contemplate alternative solutions. Reference is then made to a number of decisions made in the context of the specific rules which apply in the Commercial Court, in which attempts have been made to limit the scope of discovery.

7. Against that backdrop, 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.

8. While there are a number of decisions of both the High Court and the Court of Appeal which touch on such questions, there has not, in recent times, been a definitive determination of this Court. That being said, it is also true to say that there have been some indications in the authorities which suggest that this Court was aware of the problems attending modern discovery and the possible need to refine or adjust the test for determining the scope of discovery which should be ordered.

9. In those circumstances, the Court is persuaded 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.

And it is hereby so ordered accordingly.