The High Court has refused an application by Keith Harrison for discovery and interrogatories in his judicial review challenge to a costs decision made by the Disclosures Tribunal.
In a judgment delivered on 18 November 2020, Ms Justice Niamh Hyland held that the documents and questions sought were neither relevant nor necessary to determine the proceedings. The ruling dealt only with the discovery and interrogatories application; it did not decide the substantive judicial review challenge to the costs decision.
The Tribunal, established in 2017 to investigate protected disclosures and other matters, examined two terms of reference concerning Garda Keith Harrison and TUSLA. After a 19-day hearing, its second interim report rejected allegations made by Harrison and Marisa Simms. In December 2019, the Tribunal decided Harrison was entitled to legal costs up to and including the opening day of the substantive hearings, but made no costs order for days two to 19. It said costs depended on cooperation, including telling the truth, and concluded it could not award costs for the remainder of the hearing.
Harrison’s judicial review challenge raised grounds including alleged errors in the Tribunal’s approach to costs and a failure to give him an opportunity to address the basis for limiting his costs. The respondent opposed the challenge. The High Court had ordered by consent that the application for leave be treated as the hearing of the substantive judicial review application. Harrison later sought three categories of documents and 28 interrogatories.
The document requests concerned the sharing of statements with third parties, the decision not to interview Harrison before the public hearings, and correspondence about costs applications. The judge found the relevant facts about the statements and the absence of an invitation to withdraw allegations were undisputed. She also found that the pleadings did not raise a claim of unequal treatment in the conduct of the hearings or in the costs awarded to other participants. A general plea that the costs decision was ultra vires and breached natural and constitutional justice did not sufficiently set out such a claim.
The court also refused interrogatories about the Tribunal’s handling of the inquiry, its decision not to interview Harrison, other participants’ costs, and matters recorded in the report and hearing transcripts. Some information was already available to Harrison, while other questions concerned matters outside the pleaded issues or sought to probe the Tribunal’s reasoning. The judge concluded that the materials already available to Harrison included the relevant report, transcripts, correspondence and costs decision.
All three categories of discovery and the interrogatories were refused. The court did not determine the underlying judicial review grounds in this ruling.