Neutral Citation No:  NICA 3
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
MORGAN LCJ (delivering the judgment of the court)
The history of discovery in this case
(i) By virtue of Order 18 Rule 20(1)(a) RCJ the pleadings in the action were deemed closed on 10 February 2012. Order 24 Rule 2(1) RCJ required each party, within 14 days after the pleadings in the action were deemed to be closed, to make and serve on the other party a list of the documents which were or had been in their possession, custody or power relating to any matter in question between them in the action. The applicant did not comply with that Order and on 2 March 2012 the Master made an Order requiring the applicant to provide the list. The applicant failed to do so and on 21 June 2013 the Master made an Order that the applicant's defence should be struck out and the respondent have judgement against the applicant unless he served a list of documents verified by affidavit within 21 days from service of the Order. It is accepted that there has been no explanation for the failure to comply with the requirements of the Rules and Orders between February 2012 and June 2013.
(ii) Thereafter further extensions of the time for compliance with the Unless Order were made by agreement. Both parties agreed that there was a period of approximately one year between June 2013 and October 2014 when extensions were agreed in order to facilitate negotiations between the parties and to await the outcome of investigations by PONI regarding potential charges against PSNI officers. The respondents also contend that the stated complexity of the discovery process was one of the reasons for granting the extensions.
(iii) In or about October 2014 PONI indicated that it was not going to pursue criminal proceedings against the relevant PSNI officers. That led to a change of pace in the litigation. On 11 November 2014 the applicant obtained permission to amend its defence and on 17 November 2014 served an amended defence in which it admitted:
(a) that Informant 1 was at all material times acting as a covert human intelligence source providing information to the applicant;
(b) that the respondent was assaulted by Informant 1 on or about 12 March 1992 as alleged;
(c) that a person acting on behalf of and at the behest of Informant 1 placed an improvised explosive device underneath the respondent's motor vehicle as alleged; and
(d) that the applicant admitted that the police officers under his direction and control and for whose conduct he was legally responsible were guilty of misfeasance in public office within the second limb of Lord Steyn's definition of that tort in Three Rivers District Council v Bank of England (No 3)  2 AC 1.
On 13 November 2014 the applicant served a list of documents containing the pleadings and open correspondence on the basis that the admissions meant that there was no longer a liability issue in the action.
(iv) The applicant submitted that he had complied with the obligation under Order 24 Rule 2 RCJ. That issue came before the Master on 11 March 2015. He rejected the applicant's submission and made an Order that the applicant should make discovery of 94 categories of documents as sought by the respondent. An appeal was lodged in accordance with the Rules and in light of the application for specific categories of documents Stephens J directed that the application should be pursued pursuant to Order 24 Rule 7 which enables the court to order discovery of specific documents where it is contended that they relate to one or more of the matters in question in the action.
(v) A summons was duly issued on 21 August 2015 and heard by Colton J. He stated that the test of relevance was that any document which it is reasonable to suppose contains information which may enable a party either to advance his own case or to damage that of his adversary, if it is a document which may lead to a train of enquiry which may have either of those two consequences, must be disclosed (see Peruvian Guano  11 QBD 55). He was satisfied that notwithstanding the admissions that had been made there remained a number of significant matters in issue between the parties:
"(a) Was "Informant 1" acting as a servant or agent of the defendant in relation to the attacks on the plaintiff and in particular is the defendant vicariously liable for the assaults committed by a person identified as Informant 1 or on his behalf on the plaintiff?
(b) Is the defendant liable in negligence to the plaintiff?
(c) Did the defendant conspire to assault and injure the plaintiff?
(d) What was the extent of the misfeasance in public office committed by the defendant its servants and agents? In particular is it limited to "untargeted malice" which has been admitted?
(e) What is the measure of compensatory damages to which the plaintiff is entitled?
(f) What is the measure of exemplary damages to which the plaintiff is entitled?"
Those issues required determination of a number of factual matters some of which were also identified by the judge:
How often did Informant 1 meet or talk with police officers?
How much was he paid and when?
What did police officers know about the extent of his activities?
Did the police officers know the plaintiff was or remained a target?
What steps did police officers take to protect Informant 1 from being either apprehended or prosecuted?
What was the degree of control exercised over Informant 1?
Did police officers approve or instigate any of Informant 1's activities and in particular the assaults on the plaintiff?
(vi) Colton J expressed himself satisfied that at some stage there had been in the possession, custody or power of the applicant documents which were material to the outstanding issues in the case. He noted that an affidavit had been filed by Supt Middleton on 5 November 2015 stating that no relevant documentation existed in respect of whether there had been any pre-emptive intelligence available to the RUC relating to either of the two assaults on the respondent. It was asserted that this involved taking a cursory look at more than 4500 documents in an exercise which comprised more than 200 hours by those doing so. Subsequently however, it was accepted in a skeleton argument submitted on 26 January 2016 that there had in fact been information received by police on 20 April 1987 of a non-specific threat from one identified loyalist paramilitary group to a number of named individuals, one of whom was the respondent. This had already been disclosed in the Ballast Report. The judge concluded that this was evidence that the applicant had not taken the obligation to provide discovery seriously.
(vii) The judge then turned to the question of proportionality. The affidavits lodged on behalf of the applicant indicated that extensive work would be required with significant resource implications in order to complete discovery. The identification of the material was only the beginning. Because of the sensitivity associated with the material each document would have to be examined to identify material requiring consideration for PII. This required a detailed assessment of each document and the involvement of authorising officers. Consideration would have to be given to the protection of life and protection of methodology. In addition questions would arise in relation to ongoing investigations by the PSNI and the DPP may also have to be involved in the exercise. At that stage consultation with counsel would be required in order to pursue the PII claim by way of submission of the documentation to the Chief Constable. Thereafter the PII submission would have to be examined in relation to each document. It was estimated that this process in this instance could take of the order of two years.
(viii) Colton J accepted that an Order for specific discovery in the action may well be laborious and time-consuming. He considered, however, that much of the relevant discovery should be capable of being readily identified as it was provided to PONI for the Ballast Report. He considered that resources arguments were unattractive where grave allegations had been made against agents of the state. He accepted that when the documentation was identified PII considerations would need to be investigated. He noted that the Master's Order referred to 94 categories of documents and as a result of a further hearing he concluded on 16 June 2016 that the Order should issue in respect of 13 categories of documents. To that extent, therefore, the applicant's appeal was successful.
(ix) The trial judge gave leave to appeal to the Court of Appeal but that appeal was dismissed in 24 February 2017. The court took the view that the applicant's actions in relation to discovery had not been prompt. The court considered that discovery in this case may be a complicated process and that there would be expense involved but concluded that the benefit of providing the discovery outweighed the burden. In the course of that appeal it was accepted on behalf of the respondent that there would be delay in the discovery process.
(x) On 8 March 2017 the discovery application was relisted before Stephens J and he directed that the applicant should comply with the Order by 13 June 2017. Following the application to extend time he gave the ruling on 21 July 2017 which is the subject of this appeal.
The trial judge's analysis
(i) the discovery process is complex for the applicant;
(ii) there is a resource implication for the applicant though not to the extent suggested. The judge did not indicate what element of the resource implication he did not accept.
(iii) the identification of relevant documents did not present the difficulty suggested by the applicant and in any event the failure of the applicant to do anything useful about discovery over many years is unacceptable;
(vi) years have passed without compliance;
(v) there was no clear, acceptable plan for future compliance; and
(vi) all of this had to be seen in the context that there was no evidence of any attempt by the applicant to comply with its initial obligation under the rules to serve a list of documents or to comply with all the orders made by the Master over many years.
The submissions on appeal
Leave to appeal
(i) that the documents relevant to the issues and facts identified by Colton J should be provided forthwith in unredacted form to the lawyers representing the applicant;
(ii) that those documents should be considered by the legal representatives in order to determine the most effective way in which to make disclosure;
(iii) that the parties should meet within 4 weeks of the delivery of this judgment to prepare a timeframe for the completion of the disclosure process; and
(iv) that this case should be listed before the Queen's Bench Judge 5 weeks from today in order to determine whether any further extension of time for compliance should be given.