High Court of Ireland Decisions

1. This matter comes before the Court by way of a Notice of Motion seeking an order pursuant to Order 31 Rule 29 of the Rules of the Superior Court directing the Registrar of the Special Criminal Court to make discovery on oath of (I) All witness statements and other documents furnished to the Accused and/or relied upon by the Prosecution in a criminal prosecution entitled People (Director of Public Prosecutions) v Ciaran Chambers in respect of which the Plaintiff was tried by the Special Criminal Court and convicted of a number of offences on the 29 November, 1994. (II) The transcript of the said trial.

The Notice of Motion also seeks further or in the alternative an Order directing the Registrar of the Court of Criminal Appeal to make discovery on oath of (I) all witness statements and other documents furnished to the Accused and/or relied upon by the Prosecution in a criminal prosecution entitled People (Director of Public Prosecutions) v Ciaran Chambers in respect of which the Plaintiff was tried by the Special Criminal Court and convicted of a number of offences on the 29 November, 1994. (II) Transcript of the said trial. (III) The Order of the Court of Criminal Appeal made in February 1996 dismissing the appeal of the Plaintiff from the said convictions.

The facts of this case insofar as they are relevant to the present application can be summarised as follows:

The first named Defendant is the Publisher of the Sunday Times Newspaper of the 18 February 1996. The second named Defendant is the Editor of the said newspaper. In a statement of claim delivered by the Plaintiff on the 22 July 1996 he claims that in the said newspaper the Defendants and each of them falsely and maliciously wrote and published of and concerning him defamatory matter. In summary these allegations were to the effect that the Plaintiff made the bomb which exploded in Canary Wharf in London that the Police in Ireland and England believed that the Plaintiff had made the bombs that the Plaintiff was still at large having jumped bail four years previously, that the Plaintiff in the believe of the Police built most of the IRA bombs that exploded in England, that the Plaintiff used a mortar to attack Heathrow Airport and that the Plaintiff was being sought by the Gardai in Ireland. It also alleged that the Plaintiff was a leading member of the IRA and a member of the Army Council of the IRA and that the Plaintiff was a person who would engage in indiscriminate bombing and mass destruction.

The defence delivered by the Defendants on the 13 November, 1996 admit the writing and publication of the words complained of and allege that the words are true in substance and in fact. The Defendants plead justification for the said words and in the particulars they allege that on the 29 November 1994 following trial in the Special Criminal Court, the Plaintiff was convicted of five offences and was sentenced to a total of seven years imprisonment.

It is submitted on behalf of the Defendants that they have been advised by Senior Counsel that in order to properly and fully defend the proceedings it is essential that the Defendants procure the witness statements 'collectively and colloquially known as the Book of Evidence' used in the trial of the Plaintiff before the Special Criminal Court together with a copy of the transcripts of the trial. In accordance with that advice a letter of the 1 December 1997 was written to the Garda Commissioner seeking voluntary discovery of the Book of Evidence and the transcript. Subsequently the Defendants were informed by the Chief State Solicitor's Office that it did not retain copies of the Book of Evidence or copies of the transcript. The Defendants then sought this material from the Registrar of the Special Criminal Court and the Court of Criminal Appeal. The Defendants were informed on the 30 March 1998 that these documents would not be made available to them. This was a decision which I took and was made in accordance with the custom and practice of the Special Criminal Court at the relevant time.

The application is now made under Order 31 Rule 29 of the Rules of the Superior Courts directing the Registrars of the respective Courts to make discovery of these documents.

The Applicants have confirmed their willingness to discharge all reasonable costs of the notice parties in complying with the Order of the Court.

Order 31 Rule 29 provides that "any person not a party to a cause . . . who appears to the Court to be likely to have . . . any documents which are relevant to an issue arising or likely to arise out of the cause or matter . . . may by leave of the Court upon the application of any party to the said cause or matter be directed by Order of the Court . . . to make discovery of such documents . . .".

I am satisfied that the documents sought in this case are in the possession, custody or power of the Registrar of the Special Criminal Court and the Registrar of the Court of Criminal Appeal and that they are relevant to an issue arising in the litigation between the parties herein.

When this matter was referred by the Defendant's Solicitors to the Registrar of the Special Criminal Court my directions were sought in relation to the handing over of these documents. In accordance with the practice of that Court I made a ruling that the documents sought should not be made available to the Applicants and were only to be handed over for the purposes of appeals taken against the decision of that Court. This practice, in my view, is based upon sound reason in as much as transcripts, while taken at the hearing by Stenographers, are only made up when an appeal is lodged against the decision of the Court. Otherwise the transcript is not available in typed form.

This practice must, of course, yield to an Order made in pursuance of Order 31 Rule 29 and there is nothing in the Rule which deprives it of its applicability to a Book of Evidence or a transcript of a hearing of a criminal matter.

O'Hanlon J in Kelly v Ireland [1986] ILRM 318 at 323 considered a similar application. In the course of submission Counsel for the Plaintiff argued that no procedure was available for the production, in civil proceedings, of evidence taken in the course of criminal trials before the Special Criminal Court. In the course of his Judgment O'Hanlon J said at p 323 "I do not think this objection is well founded. Rule 25 of the Special Criminal Court Rules 1975 (SI 234 of 1975), makes provision for the official record of proceedings before the Special Criminal Court and while the practice has been (in accordance with the provisions of Section 41 of the Offences Against the State Act 1939) for the court to control its own procedures in all respects, I have no doubt that where it is necessary for the purpose of doing justice in the case involving litigation between contesting parties, an extract from the transcript of the proceedings before the court would be made available or its production could be compelled should it become necessary to do so."

The issue that emerged during the course of the hearing of this application can be summarised in this manner. It is submitted that given that the documents in question are prima facie available and in the possession of the Plaintiff in the action and would be discovered by him should the Court so direct, is it desirable to involve a third party in the proceedings by making an Order for discovery of these same documents against it?

It is submitted on behalf of the Third Party that as a general principle an order for discovery against a third party should only be made where the documents sought to be discovered are not available as a consequence of an Order for discovery made against a party to the action.

In the course of his Judgment in Allied Irish Banks Plc v Ernst & Whinney [1993] 1 IR 374, McCarthy J while considering the circumstances in which Third Party discovery might be made said at p 394 ". . . These documents are, of course, available to the defendants but that does not preclude them from pursuing the same documents in the possession of the Minister and any train of enquiry to which that very possession may lead." This was not part of the ratio of the case but I do accept it as a clear indication that in an appropriate case the Court should make the Order sought even though the documents might be discovered by a Party to the action.

In my view, however it is undesirable and the Court should be slow to put someone, not a Party to the action, to the trouble of making discovery if it can be avoided and I am satisfied that an Order should only be made against a Third Party in circumstances where the documents in question are not readily available to be discovered by a party to the action or where in the particular circumstances of the case the interests of justice require that it should be done.

In the present case the Plaintiff, while a notice party to the application, has not informed the Court if he is in possession of these documents which are now sought to be discovered. He would have been at one stage presumably. However, it is not known whether he still has these documents. The Defendant has submitted that the Court should make the order in this case since part of their case is that the Plaintiff is a terrorist and that it is unreasonable to require them to depend upon him producing the documents by way of discovery when these documents are essential to the defence of the action.

I do not think that this is necessarily a conclusive argument. While it would appear prima facie that the Plaintiff has been convicted of serious offences in the Special Criminal Court it does not follow that he will not make full and proper discovery. Far more important there is no reason to think that his Solicitors will not ensure that proper discovery is made. I do not think that simply because the parties to an action are hostile to one another is any reason for presuming that proper discovery will not be made.

Given therefore that there is no satisfactory evidence that (a) the documents are not available to be discovered by the Plaintiff and (b) that proper discovery will be made, the question arises as to whether the Court should order third party discovery.

I am of the view that it should not. I believe that as a general principle third party discovery, with all the inconvenience which it involves, should only be ordered when there is no realistic alternative available. In Fusco v O'Dea [1994] 2 IR 93 Lynch J in dealing with this matter in the High Court raised as an issue the question of whether discovery had been sought against the party to the action Egan J at page 102 of the Report says "Furthermore such an order (ie an order for third party discovery) is in the Court's discretion and is not available as of right."

As the case stands at the moment I am not prepared to make an Order for third party discovery. On the other hand I recognise the importance of the documents sought to the Defendants and if these documents are not available to be produced on discovery by the Plaintiff I would be prepared to make the Order sought.

Accordingly I propose to make an Order adjourning the present application generally with liberty to re-enter. If requested by the Defendant I will make an Order for discovery against the Plaintiff and I will give the Defendants liberty to re-enter for further consideration of the application if it should transpire that the documents are not forthcoming. At that stage I would propose to favourably consider the application.

I am of the view that the Plaintiff should have the cost of this motion payable by the Defendant and I reserve any question of costs as between the Defendants and the third party.