The High Court has refused an applicant’s request for discovery of communications between the Hungarian authorities and the Garda National Immigration Bureau (GNIB) concerning an EU citizen’s residence in Hungary. The court also ordered the applicant to pay the Minister for Justice’s costs of the discovery motion.
The ruling, delivered by Ms Justice Tara Burns on 9 March 2021, concerns a judicial review challenge to the refusal of a review of a decision refusing the second applicant a permanent residence card and revoking his existing residence card. The substantive proceedings remain separate from the discovery application addressed in this judgment.
The applicants’ case includes a claim that the Minister breached constitutional justice by relying on information that had not been disclosed or particularised. The Minister denied that claim. An affidavit from a Higher Executive Officer in the department’s EU Treaty Rights Division said the information held was that the first applicant had been living and working in Hungary since 2012, and that this had been communicated to the applicants before the initial decision. The affidavit also said no additional information from GNIB or the Hungarian authorities was before the Minister for either the initial or review decisions.
The applicants sought documents about communications between the Hungarian authorities and GNIB, saying they needed to check whether the information described in the affidavit was complete and accurately characterised. Their counsel said discovery was sought for verification. The judge found no factual dispute had been raised and no basis had been established for suspecting the affidavit was inaccurate.
Justice Burns said discovery in judicial review is generally more limited because the court examines the legality and process of a decision, rather than deciding whether it was correct on its merits. In this case, she found the requested documents were not shown to be necessary or relevant to the pleaded claim: the Minister’s position was that the information had been disclosed and was particularised. Seeking documents to test the affidavit without evidence suggesting it was wrong amounted to speculation and a fishing expedition, she said.
The judgment records that the applicants also relied on decisions concerning disclosure after a party relied on privileged correspondence. The judge said those cases did not apply because relevance and necessity had not been established here. She refused the discovery order and awarded the Minister costs of the motion against the applicant. The judgment does not determine the underlying judicial review challenge.