Chapter 8 - Court Adjournment – Related High Court Action
Shortly before the hearing date fixed for the District Court proceedings in late May 2008, the HSE's solicitors asked my Office to agree to an adjournment of these proceedings. This was on the basis, as explained by the solicitors, that a case was to come for hearing before the High Court in early June 2009 "which engages issues which are almost identical to those arising ... in the present case." Those issues, it was explained, involved a situation in which the HSE had provided to a statutory body "materials generated for the purposes of an in camera hearing ... where prior permission for that disclosure was neither sought nor obtained from the Court". The HSE sought to adjourn the District Court proceedings on the grounds that this "identical issue" would be "determined authoritatively in the High Court". As mentioned above, the District Court refused an adjournment of the proceedings and the case was struck out.
At my meeting with the CEO of the HSE I had learned that this High Court hearing involved the Ombudsman for Children as the statutory body to which "in camera" type material had allegedly been provided.
From my perspective, there was no pressing need for such an adjudication as the current law is sufficient to enable the provision by any party of material which is otherwise covered by the "in camera" rule. However, were the matter to be dealt with by the High Court, it would clearly be of relevance to know the Court's adjudication. In fact, I had at that stage a separate HSE complaint on hands in which the provision of such material was a key element in my examination. I had deferred the requirement to be provided with this material pending the outcome of the promised High Court hearing.
In the event, it seems that the High Court proceedings involving the Ombudsman for Children did not, as anticipated by the HSE, go to hearing. Accordingly, the High Court gave no determination on the issue of the right of the Ombudsman to be provided with documentation which might otherwise be covered by the "in camera" rule. Despite its knowledge that I had a direct interest in the outcome of that particular case - after all, the HSE had informed me of its existence and stressed its relevance to my situation - the HSE failed to inform me that the case did not go to hearing and that the High Court had not given a judgment. My Office discovered this fact in August 2009.
What concerns me about this episode is the possibility that there was a never a realistic prospect of the High Court delivering a judgment as suggested by the HSE that it would. I am not familiar with the full details of this High Court case nor with the form taken by the proceedings. It may be the case that the proceedings were in such a form that a written judgment could not reasonably be expected. I know from my own experience with the HSE that some of its predictions of the likely course of action of the District Court proved quite incorrect. I would be concerned that it may have been somewhat reckless in anticipating how the High Court would choose to deal with the particular proceedings involving the Ombudsman for Children. As with the District Court proceedings into which my Office was unwillingly drawn, it may well be that parties were drawn unwillingly into the High Court proceedings and that, as was my own experience, nothing was achieved other than the incurring of high legal costs - all paid for by the Exchequer.