The Court of Appeal has dismissed an appeal by two employees seeking discovery of four categories of State documents in proceedings over alleged losses from unpaid employment awards.
The plaintiffs contend that Irish law did not fully implement an EU directive on employer insolvency. They say they could not afford the costs of winding up their former employer and appointing a liquidator, and seek declaratory relief and damages after failing to recover amounts awarded under the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000.
They argued that the Protection of Employees (Employer’s Insolvency) Act 1984 did not provide the alternative insolvency route set out in the directive: a finding that a business had definitively closed and lacked sufficient assets to justify formal insolvency proceedings. Their discovery request covered documents about the directive’s implementation and advice on it, notifications to the State that it had not been fully implemented, and communications from EU bodies.
The High Court refused all four categories in April 2017, accepting the State’s submission that the central transposition issue was a matter of law and the documents were unnecessary. The plaintiffs appealed, arguing that the material could help establish whether any breach was sufficiently serious to support damages under EU state-liability principles.
In its December 2018 judgment, the Court of Appeal agreed with the High Court that the requested material was not needed to determine whether Irish law had correctly transposed the directive. It described that issue as relatively straightforward and distinguished a separate case in which technical reports had assisted the court.
On the damages claim, the appeal court said only category C—notifications to the State or its agencies that the directive had not been fully implemented—could potentially be relevant. But the plaintiffs had offered no evidence suggesting that such notifications existed. Seeking those documents in the hope that something might emerge amounted to impermissible “fishing”, the court held.
The court dismissed the appeal. It did not decide the underlying damages claim or make a new finding on the plaintiffs’ entitlement to damages.