RESOURCES AS AN EXCUSE NOT TO COMPLY WITH DISCOVERY ORDERS IN CIVIL ACTIONS IN CONFLICT RELATED LEGACY LITIGATION CRITICISED: THE JUDGMENT IN JOHN FLYNN V PSNI
KRW LAW LLP is instructed by John Flynn who is taking a civil action against the PSNI as the inheritor of the legacy of the RUC. John Flynn, who survived two murder bids against him from the UVF, has already established an admission from the PSNI that the RUC misused its powers in handling paramilitary agents. The PSNI has agreed to pay Mr Flynn damages for the negligent acts of the RUC.
However, the PSNI hold material which is relevant to the truth of the activities of the RUC in this case and access to which could determine the extent of the wrong doing and contribute to the amount of damages to be received by My Flynn. The PSNI argued that providing discovery of everything being sought could also have disproportionate implications for costs and resources.
This argument does not satisfy the demands of human rights when there has been a violation – an attempt to take the life of Mr Flynn – with the knowledge and complicity of the state, whose role should be to protect life and where there the civil litigation process of discovery would be mechanism to reveal evidence of the state knowledge and complicity in the attempted violation of Mr Flynn’s most fundamental right – his right to life.
In his judgment today in the High Court in Belfast Mr Justice Colton noted:
“The defendant (the PSNI) says that it would be disproportionate and unduly oppressive for the court to make an order requiring him to disclose the documentation sought in this application, in light of the admissions which have been made … Whilst I do accept that an order for specific discovery in this action may well be laborious and time consuming I consider that there is a force in the plaintiff’s submission that the defendant has not taken its discovery obligations seriously at least prior to the admission defence. The statement of claim in this action was served on 14t November 2011. Despite a number of court orders and the freestanding obligation to provide discovery irrespective of any application brought on behalf of the plaintiff it appears that no steps were taken by the defendant to prepare a list of documents in this action.”
Mr Justice Colton concluded by saying that the material that had been provided by the PSNI did not comply with the appropriate rules of the court.
Last month, the Deputy Chief Constable Drew Harris was question by the Justice Committee of the Northern Ireland Assembly:
“Sean Lynch MLA: You mentioned civil actions and legal fees. You seem to spend a huge amount on challenging cases. To the ordinary person, that does not seem to be anything other than trying to prevent disclosure. I am sticking to the budget aspect of this.
Deputy Chief Constable Harris: There is always a decision to be taken about whether to advance a case. In large part, it comes down to our article 2 and article 8 responsibilities. The article 2 responsibilities that we have concerning individuals weigh heavily on us and place an obligation, at times, to engage, in effect, in a legal argument. That sets a principle by which we can move forward. The overall principle is that we are there very much to assist the courts and to do all in our power to assist the various processes. I know that we get a lot of bad media and it has sapped public confidence in certain areas of the coronial process, but we are there as agents of the coroner, working for the coroner in delivering an ECHR-compliant inquest. That is our overall, general and overriding purpose in this.”
Today’s criticism of the PSNI by Mr Justice Colton will do nothing to dispel either the bad media or the public confidence when it comes to disclosure and discovery of Conflict related Legacy material held by the PSNI frustrated by its reliance on resource arguments
Claire McKeegan, of KRW LAW LLP, who is instructed by John Flynn, said:
“We are very pleased with the decision of Mr Justice Colton. The PSNI have tried at every turn to avoid disclosing any relevant material to allow us to resolve this case. In light of today’s decision we will be engaging with the legal representatives of the PSNI to ensure that full disclosure is made urgently.
This decision is important not only to the matter at hand but to all of our Legacy litigation where the state representatives have cited resources as justification for non-compliance with the rules. We see today’s decision as a marker that this position will not be accepted.”
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