The High Court has dismissed Jenny Kilbride’s application for leave to challenge a Marine Casualty Investigation Board report into a kayaking incident off Dublin in September 2020, finding she had not shown an arguable case that the report’s findings were irrational or unreasonable.
The application concerned an incident on 13 September 2020, when a group of about 15 kayakers set out from Bullock Harbour for Dalkey Island on a tour organised by Kilbride. The parties disputed what happened. The Board’s report described kayakers in difficulty, three calls to emergency services, and a participant being repeatedly thrown from a single kayak before being assisted back in. It said all participants and instructors returned safely to shore. Kilbride’s account described the tour as routine and said it was interrupted by the arrival of rescue services.
Justice Charles Meenan said he could not resolve that factual dispute at this hearing. He was satisfied, however, that there was considerable evidence of a “marine casualty” warranting an investigation under the Merchant Shipping (Investigation of Marine Casualties) Act 2000. The judgment also noted that an earlier judicial review ruling had found a basis for the investigation.
The current proceedings were at the leave stage, and the judge stressed they were not an appeal against the report’s findings. He said disagreement with those findings was not enough: Kilbride had to establish an arguable case that they were irrational or unreasonable. The court found she had not done so in relation to her challenges concerning weather and sea conditions, VHF radio use, or a small craft warning.
The judge also ruled that claims about the Board’s composition, the investigator’s appointment and alleged bias, European law and predetermination either had been or could have been raised in the earlier proceedings, and could not be raised again without good cause. He rejected the arguments that the report was undermined by alleged procedural unfairness, GDPR issues or an alleged breach of the European Convention on Human Rights. The judgment said Kilbride had been given an opportunity to make observations before publication and that the investigator had excluded some third-party information considered of minimal probative value and potentially prejudicial to her.
The application was dismissed. Meenan gave a provisional view that the Board was entitled to costs, including reserved costs, to be adjudicated if the parties could not agree. He directed Kilbride to file any costs submissions by 22 September 2023, with the Board’s response due by 13 October, and listed the matter for mention on 20 October 2023.