Court to hear strike out motion in Defence Forces case

Former Air Corps staff Gavin Tobin has taken the legal action. Picture: Larry Cummins

The High Court is to hear a motion to strike out the Defence Forces' defence of a legal action brought against it by a former technician.

The hearing has been scheduled because the Defence Forces haven’t complied with a Supreme Court order, in 2019, to hand over documents Gavin Tobin has been seeking since 2013.

Although they sent him a sworn affidavit last week, saying they would provide the documents, they still haven’t sent him the documents he is looking for.

In May, the Irish Examiner reported how the Defence Forces claimed they could not give a signed affidavit to the former air corps technician, because of Covid-19 physical-distancing rules.

This was despite the fact that Defence Forces lawyers were last ordered to provide the affidavit more than eight months before the first case of the virus was found in Ireland. A Supreme Court order was made on July 15, 2019, in favour of Mr Tobin, who is suing the State over his alleged exposure to deadly chemicals on dates during the 1990s.

The army was first ordered by the High Court to provide the information to Mr Tobin’s legal team in 2016, after they declined to give him the information when he first asked for it, in 2013. The information requested is part of the so-called discovery process in a court action, where legal teams seek to discover documents they need to pursue their action.

Mr Tobin alleges he was, on one occasion during the 1990s, subject to 'tubbing' — doused with chemicals by other air corps personnel. He is among several former mechanics suing over alleged exposure to dangerous chemicals and solvents during their employment.

The Defence Forces, the Department of Defence, and the State Claims Agency have previously told the Irish Examiner they do not comment on individual cases due to be heard in a court.

When he was in opposition, Taoiseach Micheál Martin described the air corps chemical-poisoning allegations as "horrific" and "appalling". He called for an inquiry, and a care package for those affected. He also said there should be an end to protracted legal action.

When asked where he now stands, Mr Martin said: "My concerns with this situation are consistent. The Minister for Foreign Affairs, Simon Coveney, is equally concerned about this.

"Now, there is a substantial legal process in place. That creates some difficulties in terms of how the department responds. That said, the minister is practically looking at this in terms of how there can be — without prejudice to the legal situation — how there can be an empathetic response."