Judgment Title: Keating v Radio Telefís Éireann & ors
Neutral Citation:  IESC 22
Supreme Court Record Number: 381/2008
High Court Record Number: 2003 11249 P
Date of Delivery: 09/05/2013
Court: Supreme Court
Composition of Court: McKechnie J., Clarke J., MacMenamin J.
Judgment by: McKechnie J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 2008/381
RADIO TELEFÍS ÉIREANN
THE COMMISSIONER OF AN GARDA SÍOCHÁNA
THE REVENUE COMMISSIONERS
Judgment of Mr. Justice William M. McKechnie delivered on the 9th day of May, 2013.
3. Notwithstanding these concerns however, and in clear disregard of the preceding announcement, it is claimed that the plaintiff’s name was identified on three occasions during the transmission and partially identified on a number of other occasions. Further, it is also claimed that R.T.É. failed to adequately block out images of Mr. Keating and to properly redact his name and other identifiers, through means readily available and at its disposal. In addition, it is asserted that by reason of the clear images shown of his then and former residence and of his motor vehicle it is evident that any person who knew the plaintiff could readily identify him from this published material. Finally, it is also alleged that from the overall broadcast it is quite obvious that he was a central figure in the programme as a whole.
4. In the pleadings it is asserted on the plaintiff’s behalf that during the programme, he was characterised as a “criminal insider” who was a member of a criminal gang “before he ever contacted the Gardaí”, that he “served two masters”, that he “stored major quantities of cannabis, cocaine and ecstasy tablets around his house”, that in addition to a quantity of drugs seized by the gardaí, he imported “50,000 ecstasy tablets”, and that he was the “transportation manager” for this major drugs gang.
5. At para. 8 of the statement of claim it is pleaded that in their ordinary and natural meaning the aforementioned words meant and could reasonably have been understood to mean, inter alia, that the plaintiff:
(b) “acted in the course of his involvement with a criminal gang for his own personal advantage and benefit;”
(c) “diverted quantities of the aforementioned consignments of drugs for his own personal advantage and benefit;”
(d) “rendered assistance to the said criminal gang for his own personal advantage and benefit;”
(e) “had possession of and control over large quantities of illegal drugs;”
(f) “stored quantities of illegal drugs in his house;”
(g) “acted illegally and in disregard of the law;”
(h) “was a person of treacherous and immoral character”;
(i) “was an untrustworthy, irresponsible, unreliable and dishonest person”;
(j) “was not a fit, decent, responsible and law-abiding member of society”;
(k) “was unfit to have the company of all decent, responsible, law-abiding and/or right-thinking members of society.”
7. The one exception exempted from this plea, is the defamatory imputation set out at para. 5(c) above. It is accepted that such is libellous and it is stated that a sum of money has been lodged in respect thereof.
8. Following the close of the formal pleadings, a series of notices seeking further particulars of both the claim and the defence were served. Ending with a reply in January, 2006, the following further information, relevant to the plaintiff’s activities, were revealed by him:
(ii) between January, 1995 and December, 1996, he made ten trips in all to Holland, ostensibly as part of the gang, but in reality in furtherance of the above arrangements then in place between himself and the gardaí;
(iii) the third trip, in March, 1995, was the first occasion upon which he imported drugs into this country (save for a sample which he brought back from his first trip in January 1995), as well as meeting in person, also for the first time, a senior member of the drugs squad. Upon disembarking the ferry at Cork until the drugs were dropped off at a point nominated by the gang, the entire operation was garda-monitored;
(iv) the fourth trip is notable because the gardaí told him that Customs and Excise intended to arrest him so as to prevent 20,000 ecstasy tablets from getting onto the streets. Apparently however, after some discussion between the State agencies, Customs was satisfied with a garda undertaking that they would prevent that happening: in the follow up and in order to give an appearance of reality to the gang, a check point was put in place with the plaintiff being directed to crash through the erected barriers, dump his car and then escape. He says that this in fact is what occurred;
(v) in September, 1995 (the seventh trip), the plaintiff was directed by the gardaí to take home a small amount of hash; and
(vi) on the ninth trip he was stopped by a Customs and Excise official at an Irish ferry port: present also was a plain-clothed member of the gardaí, who told the plaintiff to drive off, which he did, while another member had a heated discussion with that official; however, though complying with that instruction he was immediately followed by a number of unidentified cars. Eventually, and after a prolonged period, his motor vehicle was taken from him by gardaí whom he claims drove it around the Dublin mountains for several hours afterwards so as to lose any Customs official who might have been following him.
10. As is evident from the foregoing it is admitted in the pleadings that the plaintiff imported controlled drugs into this State on more than one occasion and that he did so, ostensibly, as part of a criminal gang. It is also admitted that he was otherwise involved in major criminal activity. Save perhaps as to detail and degree, these matters will not be in issue at trial. What will be however, is whether his involvement in such activity was at all times under the direction of the gardaí, or whether at any time, either for self-gain or gain for others, he acted independent of that arrangement.
Motion for Discovery:
2. all documentation regarding the nature and operation of “The Witness Protection Programme” and the plaintiff’s eligibility therefor, and participation in, allowing for redaction where strictly necessary to prevent identification of the undisclosed current residence of the plaintiff; and
3. all documentation relating to any and all criminal convictions of the plaintiff, whether incurred in this State or any other jurisdiction.
13. The response, by way of letter dated the 14th January, 2006, confirmed that voluntary discovery of categories 1 to 4 would be made within four weeks of that date. Category number 5 was not mentioned. Ms. Whelan subsequently wrote to the plaintiff’s solicitors on a number of occasions seeking confirmation as to whether or not the plaintiff intended to make discovery of category 5, to no avail. The time line as given by the plaintiff’s solicitors and subsequently extended, was not in fact adhered to, as the plaintiff’s solicitors apparently had some difficulty in obtaining instructions from their client. Further slippage followed. Eventually the defendant issued a motion on the 21st June, 2006 seeking discovery against the plaintiff in the same terms as previously sought. The Master of the High Court made the requested order on the 2nd November, 2006 and allowed a period of twelve weeks for due compliance. That order was not appealed. However, to date, R.T.É. has generally been dissatisfied with the plaintiff’s response and issued a further motion to have the proceedings struck out for failure to make proper discovery. That motion which was eventually struck out by consent has not materially altered the situation.
The High Court Judgment:
16. It should be noted that this generalised justification applies to all documents so identified: in addition, legal professional privilege is also claimed in respect of two of these documents. As is evident from what has previously been stated, the validity of the privilege objections, as raised by this non-party is yet to be determined.
17. On the 21st day of November, 2008, the Revenue appealed against the said High Court order on fourteen grounds. These may be grouped into the following categories, all suggesting that the learned judge, in a variety of ways, erred in law or in fact, or in combination of both:
(ii) in holding that the documents sought were relevant and necessary and that the criteria for third party discovery had otherwise been satisfied;
(iii) in failing to have due regard to the fact that the documents sought would be subject to a privilege plea;
(iv) in failing to pay any or any due regard to the competing interests involved in such a claim, in particular that referable to the sensitive and confidential nature of the information requested;
(v) in failing to find that R.T.É.’s move was merely a fishing exercise to reinforce justification for the upcoming action; in any event the discovery order was overly broad and oppressive; and
(vi) in failing to exercise his discretion properly and refuse the order sought.
18. The legal submissions filed in support of the appellant can conveniently be understood in the context of the affidavit evidence sworn by Mr. Brian Smyth, an Assistant Principal with the Central Intelligence and Drugs Enforcement Branch of the Revenue’s Customs Service, in opposing the High Court application, in which he also draws on the affidavit filed, for a similar purpose, by the Commissioner of An Garda Síochána. Before dealing with that however, an overview of what the Revenue factually says.
19. It is stated by the Revenue firstly, that it has a shared competence with the gardaí in the enforcement of drug legislation and to that end, has a deep interest in information gathering and surveillance. Trust, confidence and cooperation are critical for the effective functioning of this inter-unit responsibility. Secondly, whilst the actual existence of material falling within the parameters of what is sought is not denied, the same was obtained in confidence and any forced disclosure would seriously impact on the free flow of such information, as trust is the vital commodity underpinning such arrangements. Therefore, access to such documents would gravely prejudice the success of both agencies in this regard. Thirdly, it further says that the force of this argument is enhanced by the support which it receives from the affidavit of the Commissioner which it also relies upon.
20. In his affidavit, which like that of Mr. Smyth’s was sworn prior to the High Court hearing, Chief Superintendent Cloonan informs us that the plaintiff is a participant in the Witness Protection Programme and that such programme is designed to deal only with matters of the highest security and to provide protection for those admitted, who invariably face a serious threat to their lives. For such programme to function effectively there must be full trust, confidence and cooperation between all involved: this demands that the identity of an individual who participates in the Programme should remain absolutely immune from disclosure, at all costs.
21. The Chief Superintendent goes on to say that securing an unrestricted flow of confidential information between statutory agencies with which the gardaí have a relationship in their fight against crime, is essential: if trust should break down, that line of vital communication would be hampered. It is thus critical that the arm of discovery should not extend in the far-reaching way as now suggested by the plaintiff.
22. Furthermore, he says that “there is little to be gained and in fact there is much to be lost”, should the Commissioner be directed to make non-party discovery where a claim for privilege will be asserted, and where that claim most likely will be upheld by the courts. In such circumstances therefore, this discretionary remedy should be refused.
23. Anchoring itself firmly within this setting, the Revenue submits that the trial judge miscalculated the competing interests in play and should have assigned to those advanced on behalf of the public – the prevention, investigation and prosecution of serious crime, including the agency’s methodology, tactics and procedures – far greater weight than what he did. To produce, even to list by description the requested documents, would prejudice the functioning of the Customs & Excise office in this important area, thus discovery from the outset and as a matter of principle should be refused (Director of Consumer Affairs and Fair Trade v. Sugar Distributors Ltd.  1 I.R. 225(“Director of Consumer Affairs”); Foley v. Bowden & Anor.  2 IR 607 (“Foley”); and McLoughlin v. Aviva Insurance (Europe) & Anor.  I.L.R.M. 487).
24. While acknowledging that the issue of privilege does not, as such arise, it is nevertheless submitted that as non-party discovery is a discretionary matter, the Court, in light of the privilege plea which is almost bound to succeed, should terminate the proceedings, even at this stage. To do otherwise would ultimately be pointless: see Corscadden v. BJN Construction Ltd. & Anor.  I.E.H.C. 42.
25. The Revenue also states that the raison d’être for R.T.É.’s application is simply to buttress its defence inter alia of justification for the forthcoming trial, a purpose which cannot justify a general trawl for relevant documentation. Hannon v. The Commissioner of Public Works & Ors. (Unreported, High Court, McCracken J.) 4th April, 2001 is cited in support.
26. On the vitally important question of “necessity”, it is asserted that such has not been established for a number of reasons: firstly, R.T.É. has not disclosed what material it already possess relating to Mr. Keating’s activities; secondly, the correct respondent to such a request would be An Garda Síochána, as it is the particular relationship between it and Mr. Keating which is in issue and not the Revenue’s relationship with him; thirdly, if R.T.É. succeeds in rebuffing the claim of privilege as advanced by An Garda Síochána, the documents then obtainable will render the application against the Revenue moot; fourthly, equally if R.T.É. fails on this issue, it is also most likely that it would fail in its application against the Revenue, thereby once again rendering the application moot; and lastly, the plaintiff himself may be the depository of such documents.
27. Finally it is said that the order as drawn is overly broad (McDonagh v. Sunday Newspapers Ltd.  4 IR 528 (“McDonagh”)) and is oppressive in nature.
29. With regard to the objection based on an alleged trawling exercise, R.T.É. firmly rejects this: it says that it is unnecessary to disclose the full extent of the justification evidence which it has, it being sufficient to point to what the pleadings have already disclosed. In addition it seeks to distinguish McDonagh on the basis that a simple plea of justification was raised in that case, with effectively no particulars of any kind being furnished before the discovery application was moved. Furthermore, it is entirely dismissive of the “oppression” point, particularly in light of the Gardaí’s discovery affidavit dated the 22nd December, 2008, which lists a total of only seven documents, six of which it claims privilege over. Given their similar roles in the investigation of drug trafficking, it is difficult to see any merit whatsoever in this argument. Moreover, given the specific and precise category of document sought – namely that relating to the questioning of Mr. Keating by a Customs Excise officer on the 3rd June, 1998, and the subsequent report – it cannot be argued with any credibility, as is attempted, that such is a randomised chase for documentation.
30. It is also submitted that an assertion of privilege in itself does not in any way exempt a party or a document from the discovery process: if an order for discovery is made, the document has to be listed in the affidavit in the normal way but, if relevant and applicable, privilege can be pleaded in respect of it (Haughey & Ors. v. Moriarty & Ors. (Unreported, High Court, Geoghegan J.), 20th January, 1998 (“Haughey”) at p. 10). While there can be circumstances where a claim of privilege can defeat an application for discovery, such would be very much an exception to the general rule and can only arise in very limited circumstances, which do not exist in this case. In any event, where such a plea is made, the onus lies on the party so asserting to establish it: such is not achieved by simply relying on a general public interest claim in doing so. Whilst the appellant expresses general concerns for inter-agency co-operation and for the free exchange of information and also mentions the effectiveness of the Witness Protection Programme, it does not outline how the documents sought might affect any of these matters. Moreover, it is for the courts, not the executive to determine such an assertion (Ambiorix & Ors. v. Minister for the Environment & Ors. (No. 1)  1 I.R. 277 (“Ambiorix”); Breathnach v. Ireland & Ors. (No. 3)  2 I.R. 458 (“Breathnach”); Livingstone & Ors. v. Minister for Justice & Ors. (Unreported, High Court, Murphy J.) 2nd April, 2004; and Foley).
31. The respondent finally submits in this regard that while there are some differences between the criteria relating to inter- and non-party discovery, the essential elements remain the same, i.e. whether the documentation sought is both relevant and necessary. None of the additional factors highlighted by Finlay C.J. in Allied Irish Banks plc & Anor. v. Ernst & Whinney & Anor.  1 I.R. 375 (“Allied Irish Banks plc”) are relevant in the instant case. It is therefore said that the High Court, having properly identified the non-party criteria, correctly applied the resulting test.
Discussion - Conclusion:
The Decision Maker:
33. Underpinning this argument was the crucial submission that on so certifying the Minister, as part of the executive organ of government, should, as such and by reason of his own judgment, be allowed to withhold such document. That argument gave rise to a central issue in the case which Walsh J. characterised as follows:
35. Several years later the Supreme Court was asked to revisit Murphy: it did so in Ambiorix, but rejected any alteration to the stated principles, which Finlay C.J. (not by way of expansion or qualification), summarised at p. 283 as follows:
2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.
3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.
4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the Government.
5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.”
(ii) this exercise may not always be necessary. On rare occasions, it may be possible for the court to come to a decision solely by reference to the description of the document as set out in the affidavit; that is, without recourse to an examination of the particular text of the document itself (Breathnach p. 469);
(iii) in all cases however (and this is the crucial point) it will be for the examining court to both make the decision and to decide on what material is necessary for that purpose; and finally
(iv) in performing this exercise, no presumption of priority exists as between conflicting interests.
38. Given the complexity of modern government, at both national and local level, it is no surprise to see that many different forms of public interest, asserted in support of the effective functioning of the public service, have been offered as a defence to disclosure requests. Some of these include:
(ii) the making of a complaint to the Director of Consumer Affairs, who has important law enforcement functions (Director of Consumer Affairs);
(iii) the general investigation and prevention of crime (Breathnach); and
(iv) the statutory functions of the Garda Síochána Complaints Board (Skeffington v. Rooney & Anor.  1 I.R. 22).
39. In applying the above principles it is clear that the Revenue’s first line of resistance to the application under appeal cannot be allowed to succeed, for if it was, such would seriously trespass upon what is the lone province of the court in determining the underlying dispute between itself and R.T.É. on the discovery issue. In effect, as a party to the motion, it seeks also to become a judge in the cause. This it cannot do: there is but one arbiter which has the authority to determine such a matter. That competence cannot be foreclosed upon and neither by design nor default can it be assumed by any other. This simply reflects what the Constitution ordains. Thus, the only decision maker in this type of situation is the judicial power. Any other course would be to subvert the constitutional role of the courts, to distort the separation of powers and to step down the safeguards which these values seek to uphold. Accordingly, the suggested approach of the Revenue is incompatible with constitutional norms, as identified in the established case law and must therefore be rejected.
40. The position as outlined would only call for a different analysis if the extreme situation postulated in Murphy or one of equal gravity came to exist, in which event, an opinion from the executive branch, depending on circumstances, may have entirely different consequences. Walsh J., in the following passage at p. 234 made reference to this point:
41. This particular issue was also touched upon in Ambiorix by Finlay C.J. who, having clearly read the above passage as confining such cases to those relating to the security of the State, added the following:
42. Likewise, it is not my intention to do so, but may I be permitted to make but one observation on what the situation would be if the type of threat referred to should come to pass. It is that the public interest, in our institutional structures and their functioning, in the integrity of citizens, as individual persons and as a collective body, in the security of homes, property and other possessions, or in whatever particular area should immediately be under peril, would have to be evaluated by reference to the circumstances actually presenting and be judged against the public interest in ensuring that the rule of law, in its full judicial sense, continued to afford true and meaningful protection to all. As with the former types of public interest, the latter is likewise crucial to the safety and security of the State. That said however, as such matters do not fall for consideration in this case, like Walsh J. in Murphy and Finlay C.J. in Ambiorix, I too would defer any further discussion of State safety until the issue should actually arise.
43. Accordingly, as the Revenue has not advanced any further argument in support of its first submission, this ground of appeal must fail.
The Privilege Plea:
45. It is not suggested by the Revenue that by simply asserting a claim for privilege, a person, either a party or non-party to litigation, is thereby excluded from the discovery process: that is not and never has been the situation, nor is it stated to be. Accordingly, the normal Rules of Court apply which means that all relevant documents must be listed in Part Two of the First Schedule, if privilege is sought in respect of them. Having done that, the nature both of the asserted privilege and of the document the subject thereof, must be sufficiently particularised so as to permit the court to evaluate the claim. Generalised, non-specific details will not suffice: O’Brien v. Minister for Defence & Ors.  2 I.L.R.M. 156 at p. 159. In the vast majority of cases, it is only via this procedure that the privilege issue will be determined.
46. That being said however, there is also no doubt but that on a discovery motion the court has an inherent jurisdiction to refuse the application on the basis that its entire purpose, namely access to relevant evidence capable of aiding or defeating a particular claim, can never be achieved in the face of a privilege plea which inevitably must succeed. Before holding however that the normal process can be abridged in this way and that privilege can ground a refusal for a discovery order as distinct from an inspection order, the court will have to be satisfied that such plea permits of no other possible result. For if it should or might, the court will not refuse to grant a discovery order on such grounds. To view the situation otherwise would be to conflate distinct steps in a two-tier process which involve addressing different questions and determining different issues. Accordingly, when the matter is raised at this stage of the process, the first enquiry must be to determine whether success on the plea is unavoidable. It is only if it is, that an affidavit as to documents will not be required.
47. This view of the process is not in any way inconsistent with the decision of Geoghegan J. in Haughey. In fact the observations of the learned trial judge at p. 10 of the judgment are entirely supportive of what should normally be done. As it happened in that case, because of the great urgency involved, the two stages of the process were merged into one with the agreement of all parties; who to that end made available for the hearing all relevant documents, appropriately described and particularised. The case therefore, as the trial judge himself said, is an exception to what will routinely happen.
48. When examining the factual side of the instant case in the context of these principles it is clear that I should refrain from expressing any view more than what is necessary to deal with the particular point, for to do otherwise may risk pre-empting the ultimate outcome of the privilege issue. In light of that I refer only to the following matters:
(ii) what is requested is documents which were generated in or about 1995/1997 to coincide with the plaintiff’s criminal activities. As such, it is difficult to see how they could have any relevance to his participation in the Programme which only commenced in 2001;
(iii) as the plaintiff has never given State evidence in any criminal trial of third parties arising out of these activities, it must be very doubtful at this remove if he ever will;
(iv) it must be at least arguable, or perhaps even likely, that the expressed concerns regarding the exchange of information may be overstated as the relevant events occurred almost 15 years ago;
(v) further it seems a surprising proposition in law, that the sharing of information with third parties would, by reason of that fact alone, insulate such information from disclosure; if that was the case, such a simple expedient could have very far-reaching consequences for the administration of justice;
(vi) in any event it is quite likely that the Revenue may have at least some documents, generated otherwise than by the exchange of information with other agencies; it has not denied that this may be the case and has not specifically put in issue the 1998 encounter; and finally
(vii) it seems to be established law that the furnishing of documents in confidence does not of itself make them privileged: In re Kevin O’Kelly  108 I.L.T. 97 and Burke & Ors. v. Central Independent Television plc  2 I.R. 61.
50. In light of the above therefore and in the absence of knowing how the Revenue will formulate a privilege claim in respect of what documents they might have, I am far from satisfied at this stage of the procedure that any privilege so asserted will inevitably succeed. Or to put it differently, I cannot say that R.T.É. will ultimately exit this process empty-handed. Accordingly, this ground of appeal must also fail.
51. As is evident from what previously appears, the application before the High Court was for third party discovery and therefore O. 31, r. 29 RSC applies. It is unnecessary to recite that rule, it being sufficient to say that by reference to the issues raised in this appeal, it is necessary for the moving party to establish:
(ii) that such are relevant to an issue or issues in the action;
(iii) that an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and
(iv) that any order made, by reference to its scope, is not oppressive.
In addition it should be noted that the making of such an order is at all times a discretionary matter.
52. As is clear from the above the Revenue Commissioners have not denied the existence of documents of the type sought to be discovered nor have they denied the occurrence of the June, 1998 interrogation or the creation of specific documents relating to that incident. Therefore, the requirement specified at para. 51(i) has been satisfied. Consequently, the next question is whether the test of “relevance” has been satisfied, followed closely by the issue of “necessity”.
Relevance and Necessity:
55. In accordance with this test and on any understanding of the issues as pleaded (paras. 4, 5, 8 and 10 supra) – such being the relevant issues and not those in the submissions – it is in my view an inescapable fact that the documents sought readily meet this criteria and therefore must be considered relevant.
56. On the question of “necessity” some observations of a general nature may firstly be made. As was pointed out by Fennelly J. in Aer Rianta, once documents are found to exist which are relevant, it seems unfair to deprive a party of their availability to either advance his case or to rebuff that which he is expected to meet. As a sense of individual justice, this seems undoubtedly correct, as it does also in serving the course of justice. Although relevance and necessity are separate concepts, there is a close relationship between the two. Hence, once the former criteria is established it will most usually follow that the documents in question can also be regarded as being necessary, i.e. necessary within the meaning of O. 31, r. 12(3) RSC which also applies to non-party discovery. Indeed, this point was made by Geoghegan J. in Taylor v. Clonmel Healthcare Ltd.  1 IR 169, and echoed in very much the same language by Murray J. in Framus Ltd. & Ors. v. CRH plc & Ors.  2 IR 20. An important indicator in this regard is whether the documents requested are required for the fair disposal of the issue to which they are addressed. If they are, it is most likely that they will be considered necessary.
57. This issue has also been argued under a number of specific headings, many of which can quickly be disposed of. It is clear from the accepted position of the plaintiff that he does not have in his possession, or have the power to acquire any documents of the type sought in the discovery motion. That possible alternative source is therefore not available. The position with An Garda Síochána, as it presently stands, is that the only document discovered over which privilege is not claimed is a custody record of the plaintiff’s detention in June, 1997, which is unlikely to be of much value. Whether that will be supplemented by any further documents will have to await the determination of the privilege issue. However and notwithstanding the outcome, whatever it might be, it is difficult to see why in principle discovery should not have been sought against the Revenue given its frontline involvement in drug enforcement and its cooperative engagement with An Garda Síochána in that regard. Whilst there is a possibility of some overlap in the documentation which both non-parties might have, nonetheless, even if this is the case, which is anything but clear, that factor in itself could not be a bar to seeking third party discovery against more than one non-party. In addition, I am satisfied as a matter of probability that whether ultimately obtainable or not, both non-parties are likely to have some documents independent of each other which are relevant to the justification plea. Consequently, I believe that the application against the Revenue is justified and that properly viewed it must be looked upon, free from the constraints of the Revenue’s position.
58. In this case therefore, there is no doubt in my mind but that at both a general and specific level, the requested documents comfortably satisfy the well-established approach to this necessity issue.
Purpose of Discovery:
60. Discovery has been described as “an instrument to advance the cause of justice” (O’Flaherty J. in Allied Irish Banks plc at p. 396). Its purpose is to aid a party in the progress of litigation: it is not designed to identify grounds capable of establishing a cause of action, i.e. it cannot be used to enable a person to plead a cause of action or a defence which he is not otherwise in a position to plead. Flaherty J., by reference to authority and principle, has stated so unequivocally in Galvin v. Graham-Twomey  2 I.L.R.M. 315 (“Galvin”). In that case the plaintiff, the vice-principal of a primary school, claimed damages inter alia for libel and for a breach of her constitutional right to her good name against another teacher at the same school. In the Civil Bill it was alleged that the defamatory allegations were contained in letters which had been sent by the defendant to third parties. The plaintiff did not have possession of and in fact had never seen the letters of which she sought discovery. In dismissing the plaintiff’s appeal he held that in suing for defamation a person must set forth in the pleadings the details of her complaint with some particularity. A plaintiff “cannot be permitted to launch his proceedings and then hope by discovery to be able to amend his pleadings and thereby make his case” (at p. 320). In such circumstances the attempted use of the discovery process was inappropriate and the defamation aspect of her claim was stuck out.
61. This is in keeping with the strong dicta of the courts that mere fishing expeditions are prohibited: Finlay C.J. stated in Bula Limited (In Receivership) & Ors. v. Crowley & Ors.  1 I.R. 220 that “before making any order for further discovery [a court] … should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation” (p. 223). Similar comments were made in the case of Aquatechnologie Ltd. v. National Standards Authority of Ireland & Ors. (Unreported, Supreme Court, Murray J., 10th July, 2000), who noted that:
63. This issue may arise at two distinct points in the litigation process, prior to the commencement of the trial itself. The first may relate to an allegation by the plaintiff that the defendant, in his defence, has failed to particularise the justification plea or to outline the material facts upon which it is based. That is not the situation in this case. The second, as in the instant case, is where discovery is sought to support such a plea. In order to avoid breaching the fishing prohibition, to use an old but apt phrase, it is necessary for the moving party to disclose some information upon which the plea is based. Whether such appears in the defence document or in the particulars matters not: nor does the means by which such information had been acquired. Provided the court is satisfied that some such evidence exists, that will be sufficient. The court does not and should not evaluate its strength as a defence plea. This is not its role on such an application. Nor is it necessary for a defendant to disclose the full extent of what information he may have. He does not have to compromise his defence in this regard. Once it is shown that the plea can be supported, the discovery application cannot be regarded as a fishing exercise or as one whose sole purpose is to establish a justification plea: rather, its proper characterisation in such circumstance, is one of aiding and supporting the material which already exists. This of course is the essence of what discovery is.
64. In this case, as appears from the documentation which is partly outlined elsewhere in this judgment, it is quite clear that the criminal activity to which the justification plea is addressed has been detailed and particularised. There can be no doubt but that all interested persons are fully aware of what this plea relates to. That in my view is quite sufficient to dispose of this argument. Therefore the application cannot be resisted on this basis. In addition, perhaps it is worth noting that this ground of objection is not that of the plaintiff but that of a non-party whose involvement is solely confined to the discovery application.
65. Finally, in my view, there is no substance in the argument that the order as drawn is oppressive. Firstly it is specific to a single individual; secondly it relates to particular conduct which has been clearly described; thirdly it is confined in time, by reference to the criminal activity as the start date and by reference to the express terms of the order as the end date; fourthly the interrogation issue could not be more specific. In addition, given the information supplied the Revenue will have no difficulty in identifying the issues. Lastly, a simple reference to the affidavit of the Commissioner of An Garda Síochána immediately demonstrates the lack of substance to this point.