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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ahern v. Minister for Industry and Commerce & Anor [1988] IEHC 22 (11 March 1988) URL: http://www.bailii.org/ie/cases/IEHC/1988/1988_IEHC_22.html Cite as: [1988] IEHC 22

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THE HIGH COURT

JUDICIAL REVIEW 1987 No. 251

BETWEEN

MICHAEL AHERN

APPLICANT

AND

THE MINISTER FOR INDUSTRY AND COMMERCE AND THE

CONTROLLER OF PATENTS, DESIGNS AND TRADEMARKS

RESPONDENTS

Judgment of Mr. Justice Lardner delivered the 11th day of March 1988.

This is an application for an Order for further and better discovery brought in an application for Judicial Review. The Applicant is a Senior Examiner in the Office of Patents, Designs and Trademarks where he has been employed since 1971 and has been an established officer since 1974. By Order of MacKenzie J., made on the 31st of July 1987 leave was given to apply for Judicial Review to quash an Order of the Minister for Industry and Commerce evidenced by a certain minute of the 6th of February 1987 purporting to place the Applicant on compulsory sick leave and an Order of Mandamus directing a statement to be made to the Applicant by the Department that the Applicant was not on sick leave or compulsory sick leave from the 6th of February 1987 to the 5th of May, 1987 and that his absence from duty during this period was authorised, on the grounds, inter alia, that the Order was made in a manner contrary to natural justice, and r in breach of the natural and constitutional rights of the Applicant and in consequence of which a false official record had been established concerning him which was prejudicial to his official status and career prospects. The statement of the grounds of opposition, inter alia, were that the Applicant was suspended from continuing the discharge of his functions as a Civil Servant on medical grounds and in the absence of any medical evidence being produced by the Applicant to confirm his fitness for duty and this was done in the administrative discretion of the Minister following consultation with officers of the Patent, Design and Trademark Office and the Chief Medical Officer and that the decision was made after consideration of reports from members of the staff of the Patents, Design and Trademark Office by the Chief Medical Officer and his decision thereon. The evidence on affidavit for the Respondents discloses that there was a considerable number of complaints concerning the difficulties experienced, both by his superiors and fellow officers, in working with the Applicant and it was alleged on this basis that his conduct was disruptive. It is not necessary to consider these matters in any detail for the present application. Three officers submitted reports detailing these complaints to the Chief Medical Officer and they were apparently the basis of his subsequent requirement J and recommendation. Having received these reports he then required the Applicant to submit himself for examination by a nominated psychiatrist. The Applicant refused to do this and for a time refused to consult a psychiatrist of his own choice. At this point the Order which it is sought to review was made. The Applicant has obtained an Order for Discovery of documents and the Respondents have sworn and filed an Affidavit made by Mr. Paul Bennet, Personnel Officer of the Department on the 29th of January 1986 in which objection is made to produce the documents listed in the second part of the Schedule on the grounds of public policy; that disclosure of them would considerably interfere with the day-to-day running of a Civil Service Department and would breach fundamental concepts of confidentiality which pertain to the ability of officers to report on the conduct of officers they supervise and because disclosure would disrupt the day-to-day working of the Civil Service and would have a deleterious effect on the morale of the Patent, Design and Trademark Office staff.

The Applicant challenges this claim for privilege in respect of Item 111 in the second part of the schedule which comprises the three reports already referred to, namely, reports by Mr. Fitzpatrick, Mr. O'Farrell and Mr. Slevin, the Applicant's immediate superior which were sent to the Chief Medical Officer and on the basis of which he advised that the Applicant should be required to submit to p examination by a nominated psychiatrist or in default be placed on compulsory sick leave. The present application is for an Order that the Respondents do discover these reports.

It is undisputed that at no time did the Chief Medical Officer examine or interview the Applicant and that he acted on the basis of these reports. The issue on the present application is whether an Order for further Discovery of these reports should be refused on the grounds of public interest and public policy referred to or whether the administration of justice requires that they should be discovered. It has been agreed by Counsel for both parties that I should read the documents and then make a decision. On the one hand must consider what is the public importance of these documents in the adjudication of the issues in the present case and on the other whether the documents should be withheld on the grounds of public interest and public policy referred to. The Affidavits filed on behalf of the Respondents refer to a deteriorating pattern of conduct over a period of several years of which some instances are given. Having considered the reports in respect of which privilege is claimed I am satisfied that they contain considerably more extensive and detailed evidence or statements of the complaints which existed concerning the Applicant in connection v/ith his work. If true they are capable of being considered material upon which the Chief Medical Officer could have decided to require the Applicant to be examined by a psychiatrist or in default to suspend him on sick leave. As such I think they may probably be important evidence at the hearing and determination of this Judicial Review.

Conversely, I am not satisfied that if these reports are required to be disclosed it will interfere with or disrupt the day-to-day running of the Civil Service or would have a profoundly deleterious effect on the general morale of the office staff. The reports were made solely with a view to enabling the Chief Medical Officer to form a view and then take such steps as he thought appropriate. In my view the reports add a considerable volume of additional detail and statements of specific instances of complaint to the more generalised evidence contained in the Affidavits. But as the reports were effectively the only matters before the Chief Medical Officer, evidence of the additional detail and of the specific instances of complaint may in my view probably be important in determining the issues in the Judicial Review.

There is the further consideration that this application, if granted, would not extend generally to the Applicant's personal file. For these reasons I will disallow the claim of privilege made by the Respondents and Order that the three reports, namely, those made by Mr. Fitzpatrick, Mr. O'Farrell and Mr. Slevin, being the documents contained in Item 111 in the Second part of the Schedule to the Respondents' Affidavit of Discovery be discovered to the Applicant. The Respondents should have an opportunity of deciding whether they wish to appeal this decision and for that purpose the Order will not issue for ten days from today and it is limited to the three reports mentioned in Item 111 of the Schedule in the Affidavit of Discovery of the Respondents.