The Court of Appeal has set aside a High Court order requiring discovery in former Rehab Group chief executive Angela Kerins’s judicial review case, directing that the discovery applications be considered after the proceedings’ jurisdictional issues are determined.
In a judgment delivered on 10 December 2015, the appeal court allowed an appeal by the respondents, who included members of the Public Accounts Committee (PAC), Ireland and the Attorney General. It remitted the discovery applications to the High Court and adjourned them until after the jurisdictional issues are decided.
Kerins’s judicial review concerns the PAC’s examination of Rehab Group payments at a hearing on 27 February 2014. She alleges that the questioning went beyond the subject set out in the invitation, included her salary and employment conditions, and was conducted unfairly and with bias. She also complains about comments at a later PAC hearing and statements to the media. These are allegations in the proceedings, not findings made in this appeal.
The High Court had ordered discovery in four categories of documents, including records about the PAC’s decision to examine Rehab payments and its discussions about seeking Kerins’s attendance. It adjourned a separate category relating to her damages claim until after the first module and refused two further categories. Both sides appealed aspects of that discovery decision.
The Court of Appeal agreed that the judicial review should proceed in modules, with the jurisdictional questions decided before the remaining claims, including claims for damages. It said the High Court could direct that sequence while hearing the discovery motion, without a separate formal application for a modular hearing.
The jurisdictional questions are whether the PAC had power to inquire into Rehab Group payments and whether it lost any such power through the way Kerins was examined or through later comments. The court said the first question turns on the interpretation of Standing Order 163 and two Controller and Auditor General reports, which had already been disclosed. For the second, it noted that transcripts of the PAC hearings and the media audit were available and that the relevant facts were not in dispute for the discovery application.
The court concluded that the discovery categories covered by the High Court’s order were not relevant or necessary to decide either jurisdictional question at this stage. It did not decide whether the PAC had jurisdiction, whether it lost jurisdiction, or whether Kerins’s allegations were established. It also did not consider the respondents’ separate arguments based on constitutional and statutory privilege.
The court ordered the discovery applications returned to the High Court and adjourned until after the jurisdictional issues are determined. It also vacated the High Court’s refusal of the applications for documents under paragraphs (v) and (vi) and adjourned those applications to the same stage. The judgment says certain discovery questions may need to be reconsidered if the High Court finds that the PAC lacked or lost jurisdiction.