The Court of Appeal has excluded a report University College Cork (UCC) sought to introduce in its appeal against the Electricity Supply Board (ESB) over flood damage in November 2009. The court ruled that the report was not relevant to the issues raised in the appeal and that admitting it would be contrary to the appeal court’s role.
The report, prepared by hydrologist Duncan Faulkner of JBA Consulting in March 2017, examined ESB reservoir levels, inflows and discharges during Storm Desmond and Storm Frank in December 2015. UCC argued that the later operations showed the ESB could reduce downstream flooding without a defined flood alleviation standard and could lower reservoir levels by spilling water, rather than solely by generating.
The ESB opposed admitting the report. It argued that the appeal concerned the legal standard for any duty to alleviate flooding, not the practical details of how the dams were operated during later storms. The ESB also said it had acknowledged at trial that the dams could be operated in different ways.
The Court of Appeal said evidence of events after the High Court decision could be admitted without special leave in some circumstances, but the court retained discretion to exclude it. The evidence still had to be relevant to an issue in the appeal. The judgment said the ESB’s grounds challenged the legal basis and standard for the High Court’s liability finding; they did not assert that flood alleviation by a different method was impossible.
The court also said that later conduct, by itself, did not establish fault on an earlier occasion. It found that considering the report would risk reopening matters addressed at trial and could require oral evidence, cross-examination and rebuttal evidence, creating separate determinations within the appeal.
The High Court had found the ESB liable to UCC for the 2009 flood damage and attributed 40 per cent contributory negligence to UCC, with 60 per cent of liability allocated to the ESB. The ESB appealed the liability finding, while UCC contested the contributory negligence finding. Those underlying appeal issues were not decided by this procedural ruling. The Court of Appeal’s order was to exclude Faulkner’s report.