High Court grants discovery of documents showing when Irish Aviation Authority knew suspension evidence was unsustainable.

[2016] IEHC 805

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 371 JR]

BETWEEN:

PAUL MCMAHON

APPLICANT

-AND-

IRISH AVIATION AUTHORITY

RESPONDENTS

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 29th day of February, 2016

1. This case concerns a motion for discovery by the applicant, Paul McMahon, against the respondent, the Irish Aviation Authority,

which was heard by me on 22nd February, 2016.

2. There were seven categories of discovery in the Motion filed on 29th January, 2016.

3. I was advised by the parties at the hearing that Categories 2 and 3 had been withdrawn by Mr. McMahon. I was also advised by

the parties that the Irish Aviation Authority had consented to Category 4 prior to the commencement of the hearing. In relation to

the remaining categories of discovery; Categories 1, 5, 6 and 7, I was advised at the hearing that an affidavit dated 22nd February,

2016, by Mr. Niall Cummins on behalf of the Irish Aviation Authority was delivered to Mr. McMahon’s counsel on the morning of the

hearing.

4. It was contended by counsel on behalf of Mr. McMahon that this affidavit was not properly served on him. However, it was agreed

by the parties that the hearing could proceed on the basis that it had been properly served.

5. This affidavit provides, inter alia, an undertaking on behalf of the Irish Aviation Authority not to rely on any of the documents

contained in Category 5, Category 6 and Category 7. For this reason, during the course of my hearing, counsel for Mr. McMahon

accepted that these undertakings meant that Mr. McMahon would withdraw his request for discovery of these three categories of

documents.

6. This left Category 1 for me to consider at the end of the hearing. This Category of documents is described as:-

"all documents which identify the time when it became apparent to the Respondents Investigation Team that no

factually sustainable evidence existed to support the suspension which they had imposed on the Applicant."

The reason Mr. McMahon provides for seeking this category of documents is that they are "relevant and necessary because the

Applicant claims general and aggravated damages".

7. The test for discoverability of documents in the words of Order 31, rule 12(1) that the documents "relate to any matter in

question" in the proceedings. [emphasis added].

8. According to O’Flaherty J. in Stafford v. Revenue Commissioners, Supreme Court, Unreported 27 March 1996, the "most singular

thing about discovery is that the documents sought to be discovered ought to be relevant to the matter in issue." [emphasis

added]. As is clear from the decision of BAM v. National Treasury Management [2015] IECA 246 relevance in this context is

determined by reference to the pleadings.

9. In this case, Mr. Mahon's pleadings state at paragraph 6 of his Statement of Claim that he:-

"seeks damages because the Respondents neglected and or failed to act decisively and with due speed to ensure that

the initial complaint that was levied against him was investigated, fully and promptly."

In paragraph 7 of his Statement of Claim Mr. McMahon states that:-

"in aggravation of damages the Applicant will rely on the fact that since this Honourable Court delivered its judgment on the 9th of

September 2014 the Respondent has refused to make any proposal as to damages, despite a request."

At paragraph 8 of his Statement of Claim Mr. McMahon states that:-

"in aggravation of damages the Respondent, has, despite numerous requests, refused to make amends and/or offer the Applicant a

suitable apology for the serious breach of his constitutional right to his good name."

10. Thus, it can be seen that Mr McMahon’s claim is, in part, for aggravated damages. This is based on the alleged failure of the Irish

Aviation Authority to make a proposal regarding damages, amends or an apology, even though, one assumes that in Mr. McMahon’s

view it was obvious that they patently should have made such an apology, offer of amends or offer of damages.

11. In this context, it seems to me that the timing of when the Irish Aviation Authority’s investigation team became aware that there

was no factually sustainable evidence to support the suspension on Mr. McMahon could, to quote Costello J. in Irish Shell v. Dan Ryan

Limited, unreported High Court 22 April, 1986, “reasonably be said to either directly or indirectly advance [Mr. McMahon’s case] or

damage the case of the [Irish Aviation Authority]".

12. I say this, because according to the judgment of Hogan J. in McMahon v. Irish Aviation Authority, unreported High Court, 1

September, 2014, the Irish Aviation Authority suspended Mr. McMahon from February 2013 until June 2014. It seems to me that if

shortly after the suspension in February 2013, the Irish Aviation Authority’s investigation team became aware that there was no basis

for the suspension, but took no positive steps to deal with this new state of affairs until June of 2014, then this could be said to be

an aggravating factor in any consideration of the damages which are being sought by Mr. McMahon.

13. For this reason, I take the view that if there are any documents within the possession, power or procurement of Irish Aviation

Authority that identify the time when it became apparent to the respondent’s investigation team that no factually sustainable

evidence existed to support the suspension which they had imposed on Mr. McMahon, then these should be disclosed to Mr.

McMahon.

14. I do not believe that a discovery order, which relates only to the timing of when the Irish Aviation Authority became aware of this

information could be said to be onerous or disproportionate to the matters at issue.

15. Accordingly, I grant to the applicant an order for discovery of the documents set out in Category 1 being:-

“all documents which identify the time when it became apparent to the Respondents Investigation Team that no

factually sustainable evidence existed to support the suspension which they had imposed on the Applicant".

16. I order that this discovery should be completed within 6 weeks of today’s date and it is noted that the parties intend to adjourn

the hearing of the matter which was due to begin on 8th March, 2015.

17. I will reserve the costs of this application to the judge who hears the matter.