The Supreme Court has refused Student Transport Scheme Limited’s request for discovery in proceedings seeking to reopen the Court’s earlier refusal of leave to appeal.
In a judgment delivered on 29 March 2021, Chief Justice Clarke said discovery in a so-called Greendale application could be ordered only in very limited circumstances. The applicant had to show that disclosure was absolutely necessary to avoid a real and substantial risk that an order which should be treated as a nullity would remain in place.
Student Transport’s original proceedings, against the Minister for Education and Skills and Bus Eireann, failed in the High Court and Court of Appeal. In October 2016, the Supreme Court refused leave to appeal, bringing the proceedings substantively to an end. Student Transport later obtained permission to bring an application asking the Court to reopen that leave determination. The substantive application was listed for hearing the following month.
During case management, Student Transport sought discovery of documents. Its case was that the defence advanced by the Minister, supported by Bus Eireann, had been shown to be false by later matters involving interactions between the European Commission and Ireland, and a Comptroller and Auditor General report. The judgment described the discovery request as wide-ranging.
The Court said a central issue about whether Bus Eireann recovered its costs or earned a surplus appeared to have become irrelevant by the time of the Court of Appeal. The Court of Appeal had dismissed the appeal on grounds that the arrangements fell outside the Public Procurement Directive because they were of indefinite duration, and that the scheme was an administrative arrangement without a concluded written contract.
Chief Justice Clarke said Student Transport had not shown that the requested documents would materially bear on whether the Supreme Court’s refusal of leave involved a sufficiently serious breach of constitutional fairness. Nor had it shown a real and substantial risk that withholding the documents could leave standing an order that should be treated as a nullity. He said a party could not simply make an accusation, provide some evidence and hope to establish its case through discovery.
The Court refused discovery. It did not decide whether Student Transport would meet the high threshold for reopening the leave determination; that question remains for the substantive application, to be argued on the materials already filed.