In the Matter of the Air Navigation and Transport Acts 1936-1998.

And in the Matter of an Application Pursuant to Article 4 of the Air Navigation (Notification and Investigation of Accidents and Incidents) Regulations 1997.

Irene Stokes (applicant) v The Minister for Public Enterprise, The Chief Inspector of Air Accidents and Frank Russell (respondents).

Practice and Procedure - Discovery - Investigation into air accident - Applicant the widow of deceased pilot - Applicant served with draft final report - Applicant seeking discovery of documents in order to comment on the draft final report - Whether applicant having right to discovery - Criteria to be applied in ordering discovery - Air Navigation (Notification of Accidents and Incidents) Regulations 1997(SI No 205).

The High Court (before Mr Justice Kelly); judgment delivered 3 July 2000.

ARTICLE 24 of the Air Navigation (Notification and Investigation of Accidents and Incidents) Regulations 1997 does not confer a right to discovery of documents but sets out the criteria which must be applied by the court where an applicant for discovery is able to demonstrate a right to such information and seeks to exercise that right. Article 24 requires that the authorities shall not make the relevant records available unless the court is of the view that the benefits resulting from disclosure outweigh the adverse domestic and international impact that disclosure may have on the instant or any future investigation.

The High Court so held in ruling that the applicant had not established any right to discovery of the documents sought, and accordingly it was not necessary to engage in the balancing exercise required by article 24.

James O'Reilly SC and Martin Hayden BL for the applicant; Brian Murray BL for the respondents.

MR JUSTICE KELLY said that the application arose out of the crash of a helicopter at Cornakelly, Co Longford, on 27 August 1999. The applicant was the widow of the pilot of the aircraft who, together with his passenger, was killed in the crash. An investigation had been carried out into the incident by the second and third respondents pursuant to the Air Navigation (Notification and Investigation of Accidents and Incidents) Regulations 1997 ("the Regulations").

On 15 May 2000, a draft final report of the investigation was furnished to the applicant pursuant to Article 18(1)(a) of the Regulations, which provides that where an investigator is of opinion that a person is likely to be adversely reflected on by the report he may serve a Notice of Findings on such a person. The person so served is entitled to make comments in respect of the draft report and the inspector is obliged to consider those comments before proceeding to the delivery of the final report.

The applicant had been served with a draft final report and wished to make comments. She sought an order directing the respondents to make available to her "all records, notes and memoranda concerning or pertaining to the investigation." The applicant relied on Article 24 of the Regulations, as well as her general entitlement to fair procedures, and, at the hearing, had confined the application to documents which fell within the express terms of Article 24. The basis for the application was an assertion on the part of the applicant that the adviser whom she had retained to assist her in making comments, required access to those documents to comprehensively comment on the draft final report.

Mr Justice Kelly said that the objective of the regulations was "to improve air safety by facilitating the expeditious holding of investigations, the sole object of which is the prevention of future accidents and incidents." Furthermore, Article 10(4) provided that investigations "shall in no case be concerned with apportioning blame or liability." It was clear from the regulations that an investigation was directed not towards the apportionment of blame or liability but rather the improvement of air safety and the prevention of accidents in the future.

Article 24 provides: "The Minister, the Chief Inspector, the investigator in charge, or any person concerned with the conduct of an investigation into an occurrence . . . shall not make any of the following records available to any person for purposes other than such an investigation, unless the appropriate authority for the administration of justice in the state of occurrence determines that the benefits resulting from disclosure of the records outweighs the adverse domestic and international impact the disclosure may have on that or any future investigation". Article 24 then lists various records.

Mr Justice Kelly said that the negative way in which Article 24 was framed suggested that no right to the listed documents was conferred. Article 24 established criteria which must be applied by the court in circumstances where an applicant was able to demonstrate a right to such information and sought to exercise that right. Furthermore, the regulations as a whole did not envisage a situation where a person who wished to make comment to an investigator had a right of access to information gathered by the investigator. Such a right would be inconsistent with the period of 28 days specified for the making of such comments by Article 18(3). Neither would such a right sit comfortably with the object of the regulations; the regulations required investigations to be conducted in a very limited time, in furtherance of their objective of preventing future accidents. That limited time scale would be difficult, if not impossible, to achieve if a right of the type contended for arose under Article 24, necessitating in each case an application to the court for an order so as to have the documents disclosed.

There being no right of access to documents by the applicant under Article 24, Mr Justice Kelly said that it was necessary to ascertain whether the applicant could establish a right, independent of that section, to the documents. Mr Justice Kelly referred to Haussman v Minister for Marine [1991] ILRM 382, in which the widow of a naval officer who had lost his life in the sinking of a fishery patrol vessel sought the production of a report which had been prepared by an inspector appointed by the minister in advance of a formal inquiry. The applicant in that case had submitted that she needed a copy of the report to avail adequately of the inquiry, because it constituted necessary evidence for her at the inquiry, and because she would be seriously prejudiced if she was unable to have it. The High Court had rejected each of these submissions. Mr Justice Kelly said that that decision supported the proposition that there was no right to these documents which existed per se.

Neither was there any general entitlement to discovery of documents in the possession of the State or other bodies. Mr Justice Barrington in the Supreme Court in Doyle v Commissioner of An Garda Siochana [1999] 1 IR 249 had said that while the High Court had jurisdiction at common law to entertain an action for sole discovery, the authorities established that this jurisdiction was to be exercised sparingly, and it had been exercised only in cases where the plaintiff was in the position to prove that he had suffered a wrong but was not, and the defendant was, in a position to establish the identity of the wrongdoer. Mr Justice Kelly said there was clearly no entitlement of the type suggested in that passage which existed in the present case.

Mr Justice Kelly said that, therefore, the only right which the applicant might have to the documents sought would arise by her demonstrating that either rights of natural justice or constitutional fairness enjoyed by her would be impaired by the non-production of the report. Having considered the draft report, Mr Justice Kelly said that the applicant had not demonstrated that any of her entitlements would be impaired were she not to obtain the documents which she sought.

First, the draft report did not attempt to apportion blame or liability. Neither in the findings made by the second or third respondents, nor in the safety recommendations contained in the draft report, was there anything which would require the production of the documents sought in order to vindicate the applicant's entitlements in natural justice or constitutional fairness.

Furthermore, it was clear from the affidavit sworn by the applicant's adviser that on the basis of the draft report he was already in a position to comment concerning what he alleges are short comings in the draft report. The applicant not having established a right to the documents, it was not necessary to conduct the balancing exercise which was prescribed under Article 24 of the Regulations with a view to ascertaining whether the benefits resulting from the disclosure of the records would outweigh the adverse domestic and international impact which such disclosure might have on this or a future investigation.

Mr Justice Kelly dismissed the application, and made no order as to costs.

Solicitors: Patrick J. Farrell & Co (Kildare) for the applicant; The Chief State Solicitor for the respondents.