The High Court has dismissed an application by Peter Sweetman for discovery of correspondence between Ireland and the European Commission about the implementation of EU environmental review rules.
Mr Justice Kelly’s judgment, delivered on 3 April 2009, concerned a judicial review application relating to An Bord Pleanála’s 28 November 2008 approval for the Galway City outer bypass scheme. Sweetman sought leave to challenge that approval, including an order quashing it. He also sought to challenge Ireland’s alleged failure to give proper effect to Article 10a of Directive 2003/35/EC. Leave to seek judicial review had not yet been granted, and the respondents had not filed papers opposing the underlying claims.
The discovery request was made against the State respondents. It covered three categories of material: documents about whether environmental proceedings could be brought without prohibitive expense; documents about substantive review of relevant decisions; and documents about procedural review. Each category also included correspondence with the European Commission concerning alleged inadequate implementation of the directive.
Sweetman argued the material was relevant to his claims and would give him a litigation advantage. The State respondents disputed relevance and necessity and said the documents were protected by public immunity privilege. The judge applied the discovery test under the Rules of the Superior Courts: whether the documents were relevant to the issues and necessary for fair disposal of the case or saving costs.
Justice Kelly concluded the documents met neither requirement. He said the issues were largely legal and turned substantially on interpreting the Planning and Development Act 2000. He followed an earlier decision by Justice Clarke in a similar discovery application, which reasoned that whether EU requirements had been properly implemented should be assessed by comparing the directive with Irish legal measures, rather than by considering the views expressed in government or Commission correspondence.
The judge also refused discovery on privilege grounds. He relied on European court decisions concerning confidentiality in investigations that may lead to infringement proceedings, including after proceedings have begun. He held that the categories of documents sought fell within that protected class, so an affidavit listing each document and asserting privilege was unnecessary.
The ruling concerned discovery only. The court did not decide whether the bypass approval was lawful, whether Ireland had properly implemented Article 10a, or whether Sweetman would receive leave to pursue judicial review. The discovery application was dismissed.