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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Meaney v. Minister for Education and Science [2002] IEHC 77 (19 July 2002)
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Cite as: [2002] IEHC 77
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Meaney v. Minister for Education and Science [2002] IEHC 77 (19 July 2002)
    THE HIGH COURT
    2000 No. 57 JR
    BETWEEN
    MARY MEANEY
    APPLICANT
    AND
    THE MINISTER FOR EDUCATION AND SCIENCE
    RESPONDENT
    DECISION of the Master dated 19th July 2002
    1.      This is a discovery application in Judicial Review proceedings. It is the essence of discovery that the documentary material being sought should be relevant to the issues in the case. The party seeking discovery hopes that the material discovered may provide evidence, or point in the direction of evidence, of probative quality in regard to issues of fact.
    2.      It is to be hoped that the above would generally be accepted as an unremarkable description of the nature of this interlocutory application. Closer scrutiny, however, reveals that in the particular context of judicial review proceedings there is one clear difficulty in that we do not start with any recital of factual allegations. The Grounds listed in the application mix fact and law. But it is in the general nature of judicial review that there are usually only issues of law to be tried. Judicial Review is the process by which the legality of the exercise of a statutory discretionary power is reviewed: no more and no less.
    3.      The Grounds for seeking relief consist largely of assertions of legal principle coupled with ancillary allegations of fact to which the principles are to apply. And where, as in most Judicial Review applications, the facts are not disputed (as opposed to the legal significance or consequences of such facts) discovery is not called for. (This holds true no matter how curious the applicant is, and even in cases where there might be an entitlement under the Freedom of Information Act).
    4.      For example it will be asserted in some cases that the exercise of the particular power under review is one which attracts the application of the principles of natural justice, and if so, there may be a factual issue as to the actual circumstances in which the discretion was exercised: was there a fair hearing, was there prejudice, etc. Of course, there will be a factual issue to be tried only when the factual allegations are disputed. In cases not involving natural justice issues, a factual issue might have to be tried as part of an allegation of abuse of power: improper purpose, irrelevant consideration etc.
    5.      By and large, however, simple cases of ultra vires involve only an examination of the legal structure of the power in question, and perhaps a question or two of statutory interpretation e.g. is the procedural requirement mandatory or not. In such cases, where there are no factual matters to be tried, discovery is not appropriate.
    6.      It follows therefor that to ground an application for discovery in Judicial Review the applicant must be able to point to disputed assertions of fact, and establish that these factual issues fall to be determined as a necessary part of the Judicial Review application. To this end, one must read the “Grounds for seeking relief” in the Statement grounding the application as inclusive of all factual assertions which may be inquired into if disputed (if and only if they are ingredients of an alleged illegality).
    7.      Additional factual material in the affidavits does not extend this list. The practical problem for practitioners, and clients, in this field, is that the practise of filing grounding and replying affidavits of what I might describe as “comprehensive” length is now well established. It is to be regretted, but is of course understandable in the case of the applicant, given the time constraints under which he is obliged to file his papers. Once the applicant has filed a blockbuster affidavit, the respondent feels he must respond likewise. The consequence is a drift towards what I might describe as Tribunal of Inquiry-type requests, in Judicial Review applications, for a complete investigation by the Court of all matters touching on the nature and exercise of the Statutory Power in question. We have lost all precision and all rigour in the explosion of Judicial Review applications in recent years.
    8.      In this case the applicant, a school inspector, was offered an interesting job in a Reading Initiative project, but when she applied to her superiors in the Department of Education for secondment, her application was refused. The refusal was conveyed by letter of 22nd December 1999. The legality of the refusal is challenged.
    9.      There are six grounds for the challenge. The first two are identical. So that leaves five. They are, (in summary form):
    1. The said decision (to refuse) was in breach of Natural Justice “in that no proper appeal was provided against the original decision” (applicant's words)
    2. The said decision was “made unreasonably” (oppressively, arbitrarily, capriciously) “in view of” (a) the decision maker’s failure to consult the applicant or others and (b) the resulting damage to the plaintiff’s career.
    3. The said decision was not on merit, but instead derived from inflexible policy (i.e. complete failure to exercise discretion); “alternatively from improper considerations” (abuse of power)
    4. Failure to offer a contract with the respondent (my emphasis) was itself in breach of contract
    5. Said failure is in breach of the Employment Equality Act 1998.
    10.      Leave to apply for Judicial Review was granted on 14th February 2000, listing a variety of possible reliefs. Concerning grounds 4 and 5 above (which do not relate to the decision of December 1999 but rather to an alleged contract with the respondent) the reliefs sought include, inconsistently - presumably in the alternative, a declaration as to her employment status under the alleged contract, and Mandamus to require the respondent to “provide” the applicant with the Contract contracted for. I do not think that matters of contract should have been slipped into these judicial review proceedings perhaps camouflaged by use of the term Mandamus. They are in no way matters of public law. Justification for their inclusion might derive from the desire to avoid duplication of litigation, and for the saving of costs, but their inclusion, in the long run, serves only to confuse and lengthen the case - even the application for discovery!
    11.      The Statement of Opposition was filed in April 2000. It is no criticism of it to describe it as akin to a Defence - certainly it clearly flags the assertions of the applicant with which the respondent takes issue.
    12.      Reading the affidavits filed, one for the applicant, two for the respondent, there are many disputed facts of the sort we are familiar with: (who said what to whom; and when) and most are peripheral to the factual disputes arising out of the applicant’s specified Grounds.
    13.      Anticipating a full inquiry by the Court, the Respondent has also averred to the considerations prompting the challenged decision.
    14.      Discovery will not extent to all facts - only those facts which are relevant to the factual issues which are integral to one or more of the listed Grounds for seeking relief. (A “catch-all” or residual ground - such as exists in this case - will not be allowed to feed an application for “general” discovery. The Courts frown on such non specific applications and have traditionally condemned them as “fishing expeditions”.)
    15.      In summary, then, the Court must employ the yardstick of relevancy to any application for discovery and in the case of a Judicial Review application only documents probative of facts which are integral to the illegality asserted will be discoverable.
    16.      The following are the categories of documents sought in this case. (We will ignore, for the sake of pursuit of the larger goal of encouraging rigour and precision in these applications, the obvious technical deficiencies in the papers grounding the application).
  1. The National Reading Initiative

  2. The role of the Marino Institute in said “initiative”

  3. Departmental procedures regarding secondment applications and appeals from refusals

  4. Applications for secondment by Department Inspectors 1990 to 1999

  5. Conversations by named personnel with the applicant

  6. The Applicant’s application (i) for the Reading Initiative job (ii) for secondment and (iii) appealing the decision

  7. Meetings of Department Officials with Finance ditto.

  8. The views of the Department of Finance

  9. All conversations of two officials “with each other or third parties” concerning “the position of the Plaintiff (sic)”

    10. 17.      I cannot, of my own motion, supplement the reason offered in respect of any particular category. For example, for category 5 above the reason discovery is sought is the fact that such conversations took place. I can identify no dispute regarding the occurrence of these conversations, or indeed, if there was a dispute, any material significance in whether or not the conversations took place. This is possibly somewhat pedantic but is an inexactitude or imprecision of language which afflicts many categories. Category 2 is sought in order to prove that the principles of Natural Justice apply to all such secondment applications. That is clearly not an issue of fact. Anyhow, the respondent does not appear to be making the case that natural justice principles do not apply in this instance - I make no comment on whether it was open to them to make such a case.
    18.      For the purposes of arriving at the purely factual issues with which the Court will ultimately be concerned in ordering adequate discovery, the legal issues must be set to one side. The factual issues distilled in this way, in this case, are the applicant’s assertions that
    (a) the appeal against the decision was not “proper”. (This is clearly non specific: it follows that discovery cannot be ordered)
    (b) the opinion of the applicant and/or her colleagues (as to her “redeployment”) was not sought (The first part is clearly at variance with the applicant’s own evidence, and the second is not disputed)
    (c) there was a failure to consider the following, namely, the merits of the application and career damages resulting from refusal. (Other “improper considerations” not specified, perhaps a reference to consultation with Finance?)
    (d) the respondent contracted, as of 10/12/1999, to offer the Reading Initiative job, but did not do so.
    19.      I cannot marry these factual issues with the categories of documents sought, reading the category as sought solely for the reasons specified by the applicant.
    20.      Some might argue that I should cut to the core and order discovery of the one file which, properly sought, the applicant might hope to access - the file concerning her application for secondment. In fairness also to the respondent, however, I must have regard to the documents already exhibited on his behalf. Against that backdrop, I am of the view that discovery, as such, is now unnecessary.
    21.      I refuse the application.

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