The High Court has ordered the State to make further and better discovery in a personal injuries action brought by former Air Corps mechanic Gavin Tobin, after finding that its searches for documents about chemicals used at Casement Aerodrome were inadequate.
Mr Justice Mark Heslin delivered the ruling on 28 February 2023. The motion concerned compliance with a 2019 Supreme Court discovery order, limited to the period from 1 January 1990 to 28 February 1994, when Mr Tobin was assigned to the Engine Repair Flight (ERF).
Mr Tobin’s claim alleges that he was exposed to dangerous chemicals and solvents while working at Casement Aerodrome and suffered injury as a result. The State’s defence denies liability and puts him to proof of his claims. The discovery dispute was about whether the State had properly searched for and disclosed records identifying chemicals, their purchase quantities and dates, and the associated safety data sheets.
The State’s 2020 affidavit of discovery listed five safety data sheets. The judgment noted that the State acknowledged that further relevant documents had existed but were no longer available, while its second schedule referred generally to “Original Material Safety Data Sheets” without identifying the chemicals to which missing sheets related. The State had not contacted suppliers to seek copies. The judge also considered an earlier affidavit on its behalf stating that it was in a position to discover safety data sheets for chemicals used at Casement Aerodrome.
The court found that the State had not complied properly with its discovery obligations. It concluded that searches to date were inadequate, including because the search process was not described in sufficient detail and no enquiries had been made of third-party suppliers. The judge directed that further discovery should address those deficiencies, including searches of physical and electronic records across relevant locations, enquiries with suppliers, identification of those conducting searches, and detailed explanations for documents that remained missing.
However, the court refused Mr Tobin’s request to strike out the State’s defence. Although it found a failure to comply with the Supreme Court order, it was not satisfied that the failure was deliberate or wilful. It also found that a fair trial remained possible and that there was no basis to conclude further discovery would be futile. The ruling concerns discovery in the ongoing action; it does not decide whether Mr Tobin was exposed to the chemicals alleged or whether that exposure caused injury.
The judge said the parties should submit an agreed draft order to the Registrar within 14 days. He considered Mr Tobin entirely successful on the motion and said the normal rule that costs follow the event should apply, subject to any dispute about the final order.