High Court of Ireland Decisions

1. The Plaintiff's daughter, Anne O'Brien, and his infant granddaughters, Jacqueline and Ann-Marie O'Brien, were three of the innocent victims of car bomb explosions which occurred in Dublin and Monaghan on 17th May, 1974, which killed 33 people and injured and maimed many others. Nobody has been prosecuted in this jurisdiction or in any jurisdiction for these atrocities although, in a statement issued on 17th May, 1995, the Minister for Justice stated that the Garda files on the murders remain open and, if any lead should emerge which might bring the culprits to justice, it will be pursued rigorously.

2. The Plaintiff, claiming to be the indirect victim of a violation by the United Kingdom of Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "European Convention") has lodged an application with the European Commission of Human Rights ("the Commission") under Article 25 of the European Convention. The basis of the Applicant's complaint against the United Kingdom is that the car bomb explosions in Dublin and Monaghan on 17th May, 1974 were directly and proximately linked with criminal and unlawful activity originating in Belfast and Portadown, Northern Ireland, on that day and that the Royal Ulster Constabulary (the "RUC"), for whose acts and defaults the United Kingdom is answerable insofar as those acts and defaults constitute breaches of the European Convention, in breach of Article 2 failed to take the necessary and appropriate steps -

3. Amongst the specific allegations made by the Plaintiff of breaches of the obligations imposed by Article 2 are allegations that the RUC failed to follow up on information, including information concerning possible suspects, supplied by An Garda Siochana and failed to adequately liaise with An Garda Siochana.

4. In these proceedings, which were initiated by a plenary summons which issued on 21st February, 1997, the Plaintiff claims:-

5. The Plaintiff also seeks ancillary orders allowing inspection of and production to the Commission of such documents.

6. The Plaintiff's application was registered by the Commission on 21st May, 1997. In accordance with the Commission's Rules of Procedure, a single member of the Commission, acting as rapporteur, is to carry out a preliminary examination of the Plaintiff's application and report to the Commission on the question of its admissibility. In correspondence with the secretary to the Commission, the Plaintiff's solicitors have intimated that the sources of evidence they seek to rely on to substantiate the Plaintiff's complaint are:-

7. Prior to the initiation of these proceedings, the Plaintiff's solicitors had been in correspondence with the Defendant for approximately a year seeking clarification of a number of aspects of the investigation by An Garda Siochana into the atrocities and, in the correspondence, the Plaintiff's solicitors sought responses to the following questions:-

8. Following the lodgment of the Plaintiff's complaint against the United Kingdom with the Commission, the Plaintiff's solicitors wrote to the Defendant seeking confirmation that the Defendant would place the files and records in relation to the investigation into the Dublin and Monaghan bombings at the disposal of the Commission for the purposes of the Plaintiff's application. The Defendant's response to the Plaintiff's request for information and access to information has been consistent throughout: it is a refusal on the grounds that it is of paramount importance for the effectiveness of An Garda Siochana that information gathered in the course of a criminal or other investigation remains confidential. The Defendant's primary defence to these proceedings is that the Court has no jurisdiction to grant the relief sought by the Plaintiff.

9. The only evidence adduced on behalf of the Plaintiff at the hearing was the evidence of his solicitor, Mr. Greg O'Neill. Mr. O'Neill outlined the assertions made in the "First Tuesday" programme but, being hearsay, this testimony was inadmissible and of no evidential value whatsoever. He also proved correspondence which passed between him and the Chief Constable of the RUC and, in particular, a letter dated 28th August, 1996 from the Assistant Chief Constable of Crime in which the following response was given to five specific questions which Mr. O'Neill had raised in earlier correspondence:-

10. Before outlining the submissions made on behalf of the Plaintiff and the Defendant respectively, it is important to emphasise that it is common case that what the Court is concerned with on this application is whether, in principle, the Plaintiff is entitled to an order for discovery against the Defendant and ancillary relief in the circumstances which prevail in this matter. It is agreed that, if the Court decides that the Plaintiff is entitled to such an order in principle, the Defendant is entitled, where appropriate, in relation to any document or series of documents, to claim privilege in respect of the same and to justify such privilege in the discovery. Moreover, the Plaintiff's legal advisers acknowledge that the Court may, if it grants the reliefs sought, impose terms for the purpose of ensuring confidentiality of sensitive material and, where appropriate, the preservation of anonymity and the Plaintiff will abide by any such terms. Finally, it is acknowledged on behalf of the Plaintiff that the relief sought has been framed in terms which go beyond the scope of the matters in issue between the Plaintiff and the United Kingdom before the Commission and it is acknowledged that, if the Court determines that in principle the Plaintiff is entitled to discovery, the documents sought to be discovered require to be identified with greater particularity.

11. Mr. Sammon, on behalf of the Plaintiff, submitted that this Court has jurisdiction to hear an action in which the only relief claimed by the Plaintiff is an order for discovery and relies on the decision of the Supreme Court in Megaleasing U.K. Limited -v- Barrett [1993] I.L.R.M. 497 as authority for that proposition. Moreover, he submitted that the entitlement of a party to seek and obtain an order for discovery is no way dependent upon the Court being satisfied as to the strength of the Plaintiff's case and, in support of this proposition, he cited dictum of Murphy J. in Bula Limited -v- Tara Mines Limited (No. 1) [1987] I.R. 85 at page 93. The essential question, therefore, for the Court, he submitted, was whether an application for discovery only should be acceded to where the relief is sought in the furtherance of a complaint before the Commission and not for the purposes of the furtherance of litigation within the jurisdiction of this Court. He contended that the Court should answer that question in the affirmative for the following reasons:-

12. On behalf of the Defendant, Mr. Comyn submitted that the Court does not have jurisdiction to grant the relief sought on the following grounds:-

13. In determining whether the relief sought by the Plaintiff should be granted, the crucial questions to be addressed are whether the Court has an inherent jurisdiction to grant relief where discovery is the sole cause of action in the proceedings and, if so, the extent of that jurisdiction. Consideration of these questions involves an examination of the common law, which is the source of the jurisdiction, if it exists. In my view, the indirect legal effect of the European Convention contended for by Mr. Sammon does not bear on these questions. It is true that in Ó Domhnaill -v- Merrick [1984] I.R. 151, Henchy J., at page 159, tentatively suggested that, while the European Convention is not part of the domestic law of the State, as the Statute of Limitations, 1957, which was in issue in that case, was passed after the State ratified the European Convention in 1953, it could be argued that the Statute, since it does not show any contrary intention, should be deemed to be in conformity with the Convention and should be construed and applied accordingly. The same Judge, in The State (DPP) -v- Walsh [1981] I.R. 412, at page 440, when dealing with the common law concept of criminal contempt of Court stated that there is a presumption that our law, in this respect, is in conformity with the European Convention, particularly Articles 5 and 10(2) thereof. A similar view was expressed by O'Hanlon J. in Desmond -v- Glackin [1992] I.L.R.M. 490 in the following passage at page 513:-

14. The only provision of the European Convention which Mr. Sammon pointed to which might bear on the issue of the Court's inherent jurisdiction to make an order for discovery is the last sentence of Article 25.1 which is in the following terms:-

15. In my view, the non-existence of a jurisdiction it the State which empowers the Court to make an order for discovery against a person who is not a party to a complaint before the Commission could not be regarded as a hindrance of the right of individual complaint to the Commission under Article 25. In any event, on the facts of this case, it seems highly improbable that the Defendant has any information or documentation in his possession which is material to the complaint which is not in the possession of the RUC and the United Kingdom against whom the complaint is brought, as the correspondence between the Plaintiff's solicitors and the Defendant and the Chief Constable of the RUC illustrates.

16. For completeness, I should perhaps say that I reject the argument that, as disclosure is sought for the purposes of a proceeding in a forum outside the jurisdiction of the Court, the Court could not control the use of information and material disclosed. The Court can, and frequently does, control inspection of documentation by permitting the person against whom an order for discovery is made to blank out or otherwise edit portions of documents to ensure compliance with the fundamental principle governing the use of discovered documentation or information - that it may be used only for the purpose of the proceedings in which it was discovered. Moreover, with the same objective, the Court can, and frequently does, control the use of material discovered by exacting undertakings from the solicitor for the party who has obtained discovery, who is an officer of the Court, as to who is to be allowed to see the material.

17. Returning to the crucial questions as to the existence and extent of the Court's inherent jurisdiction to order discovery against a party against whom no other relief is sought, these questions were considered by the Supreme Court in the Megaleasing case. In that case, Finlay C.J., having analysed the decision of the House of Lords in Norwich Pharmacal Company -v- Customs & Excise Commissioners [1974] AC 133, said at page 503:-

18. Having commented that the Counsel who appeared before the Supreme Court in the Megaleasing case were unable to identify any case in which upon a claim of prima facie proof as to the probability of the commission of a wrong, relief by way of discovery was granted, Finlay C.J. went on to say at page 504:-

19. McCarthy J., in his judgment, said at page 505:-

20. O'Flaherty J. also found that the action for discovery is of ancient origin and that there is no doubt that it may prove to be a valuable instrument in the search for justice. However, he went on to say at page 507:-

21. The decision of the Supreme Court in the Megaleasing case unequivocally lays down that the jurisdiction of the Court to grant relief in an action for discovery only arises where there is very clear proof of the existence of wrongdoing. The earlier authorities, culminating in the Norwich Pharmacal case, in which the jurisdiction was successfully invoked generally involved a clearly established infringement of an intellectual property right, for example, infringement of a patent in the Norwich Pharmacal case, where the identity of the perpetrator of the infringement was unknown to the property owning plaintiff but was known to the defendant in the action for discovery through whose hands the infringing goods had passed, albeit innocently. The rationale underlying the jurisdiction, which was equitable in origin, was that justice required the defendant in the discovery action, who had been caught up in the tortious act, to assist in righting the wrong. The obiter dictae in the Megaleasing case suggest that the relief which the Court can afford to a plaintiff in an action for discovery is limited to compelling disclosure of the names and identity of the wrongdoers, although there are hints in the judgments of Finlay C.J. and O'Flaherty J. that the jurisdiction is not "set in stone" and may be developed in the future. However, there is no suggestion in the judgments of the Supreme Court that the Court's inherent jurisdiction could be developed into an inherent jurisdictional equivalent of Order 31, Rule 29 of the Rules of the Superior Courts, 1986, which empowers the Court to order discovery against a non-party to a cause or matter before the Court.

22. Having outlined the parameters of the Court's inherent jurisdiction in an action for discovery as defined by the Supreme Court in the Megaleasing case, it is necessary to consider whether, leaving aside the extra-jurisdictional aspect of the Plaintiff's claim which seeks discovery not in aid of the initiation of an action in this Court but in aid of the progression of a complaint before the Commission, the Plaintiff has established that his application comes within the ambit of that jurisdiction. Unlike the cases in which the inherent jurisdiction has been successfully invoked, in this case the alleged wrongdoer is identified - the United Kingdom as the principal of the RUC. The wrongdoing alleged is an inadequate investigation of criminal activity in Northern Ireland which it is alleged was connected with the atrocities in Dublin and Monaghan on 17th May, 1974 and a consequent failure to apprehend the culprits. The purpose of these proceedings is not to identify the perpetrators of wrongdoing of the existence of which there is very clear proof; its purpose is to overcome the difficulty highlighted in a letter of 13th November, 1996 from the Secretary of the Commission to the Plaintiff's solicitors, that is to say, " the evidential problems of substantiating the principal claim that the United Kingdom failed in any obligation to investigate the circumstances of the killings ". The Plaintiff has not adduced any proof, let alone very clear proof, of a violation of Article 2 of the European Convention in this Court. Accordingly, on the authority of the decision of the Supreme Court in the Megaleasing case, the inherent jurisdiction of this Court does not extend to granting the remedy sought by the Plaintiff. Moreover, even if the Plaintiff had adduced very clear proof of such a violation, it is doubtful, on the authority of the decision of the Supreme Court in the Megaleasing case, whether this Court's inherent jurisdiction would extend to making the order sought by the Plaintiff which is aimed at obtaining disclosure of factual information concerning the commission of the alleged wrong.

23. The jurisdiction to make an order for discovery which was recognised by the House of Lords in the Norwich Pharmacal case was only available in aid of legal proceedings contemplated to be taken in England: see Matthews and Malek on Discovery, page 22, paragraph 2.09. It is arguable that, the State having submitted to the jurisdiction of the Commission and the European Court of Human Rights by signing and ratifying the European Convention, these organs are not to be regarded as foreign tribunals or courts. I express no view on this point because it is difficult to envisage a situation in which the limited inherent jurisdiction recognised by the Supreme Court in the Megaleasing case could be utilised to progress a complaint by an individual to the Commission under the European Convention. The respondent to such a complaint will invariably be an identified High Contracting Party to the European Convention. For the Court to make a finding of very clear proof of wrongdoing by an identified alleged wrongdoer in proceedings in which the identified alleged wrongdoer is not a party would constitute a breach of one of the fundamental rules of natural justice - audi alteram partem. Moreover, it would be invidious for the Court to pronounce on the very issue pending before the Commission.

24. Being satisfied that the Court does not have jurisdiction to grant the relief sought by the Plaintiff, I must dismiss the Plaintiff's application.