Can you get discovery in judicial review proceedings? Yes you can, as the Public Accounts Committee found out when the High Court granted discovery against it in judicial review proceedings brought by former Rehab CEO, Angela Kerins.
The judicial review proceedings arise from Ms Kerins’ voluntary appearance before the Committee in 2014 to answer questions about the expenditure of monies by the Rehab Group. Ms Kerins is seeking various court declarations, including that the Committee had no power to examine her on the matters that it did, the procedures used during the examination were unlawful, and the examination was unfair, tainted by bias, and was of such intensity that it was degrading and affected her health.
DISCOVERY IN JUDICIAL REVIEW PROCEEDINGS
The courts adopt a restrictive attitude to discovery in judicial review proceedings, but that is not due to any bar on the right to seek discovery. Discovery plays a more limited role in judicial review simply because of the nature of the proceedings themselves.
The purpose of discovery is to clarify factual matters. As judicial review proceedings are concerned with the way in which a decision was made or the legality of a decision, the need for discovery is limited. Further, in judicial review proceedings the parties put their evidence on affidavit at an early stage. This may narrow the issues in dispute and reduce the need to seek documents.
In the Kerins case, the Court identified the following three principles from previous court decisions:
- Discovery is rarely granted in judicial review proceedings.
- But, the court can grant discovery if the documents sought are relevant and necessary and will lead to a fair disposal of the matter.
- The court must look at the nature of the proceedings in order to decide whether the documents sought are relevant and necessary.
MS KERINS’ CASE
The Court granted discovery of four out of eight categories of documents sought by Ms Kerins because it found they were relevant and necessary to do justice between the parties. The documents ordered to be discovered related primarily to the Committee’s power to examine Ms Kerins, one of the main issues in dispute, and included documents relating to the Committee’s terms of reference and the basis of its decision to examine Ms Kerins.
We understand that this decision may be under appeal.
- If decisions you or your organisation make are judicially reviewed, discovery may be sought against you.
- It is more difficult to prove that discovery is relevant and necessary in judicial review proceedings, but that does not mean that the court will not grant discovery, if appropriate.
- Be prepared for challenges to your decisions. Good record-keeping is essential here. It will help you form a coherent and clear response to any challenge. It will also form the basis of any response to a discovery request.