High Court of Ireland Decisions

1. The Plaintiff by its Notice of Motion sought an Order for inspection of certain documents in which privilege has been claimed on the part of the Defendants, and in the course of the Motion has suggested that the Court might inspect those documents to ascertain whether the Defendants claim to privilege is valid. In the proceedings the Plaintiff claimed damages for wrongful arrest, false imprisonment, defamation, and breach of his constitutional rights. The Defence delivered on behalf of the Defendants to the claim of the Plaintiff is substantially in the form of a traverse.

This judgment is in respect of the second relief sought by the Plaintiff by the Notice of Motion dated the 11 June 1998, and arises out of an Order made by the Master on the 11 January, 1998 by which the Defendants were compelled to make discovery in the usual way, and pursuant to which the Defendants did in fact make an Affidavit of Discovery. The Affidavit was sworn by Inspector Patrick G Delaney.

The proceedings were commenced by the Plaintiff who is an Anaesthetist by profession, but who also carries on business as a publican in Co Wexford. The Defendant Redmond is a Garda Sergeant and the Defendant Kealy is a Garda.

In the course of his Affidavit of Discovery, Mr Delaney on behalf of the Defendants has listed certain documents in the Second Part of the First Schedule, in respect of which documents, he claims privilege. It is this claim to privilege which is disputed by the Plaintiff.

It is agreed between Mr Kennedy on behalf of the Plaintiff and Mr O'hOisin, on behalf of the Defendants that:

(a) Not all documents which are listed in that part of the Schedule are in contention; and

(b) The documents which are in contention can be categorised under three separate headings. These are as follows:

(i) Documents concerning the prosecution of the Plaintiff.

(ii) Documents, being internal memoranda passing between the Gardai relating to these present proceedings; and

(iii) Documents relating to complaints by the first Defendant that threats were made by the Plaintiff against him.

As to the first of these, the documents in question listed in the second part of the first schedule are:

1, 2, 15, 18-21 (inclusive) and 31.

As to category (ii), the documents are:

8, 9, 10, 11 (inclusive), 15a, 17, 23, 25 and 33.

As to category (iii), the documents are:

34-45 (inclusive) and 49.

Before I move to the submissions of the parties, I should clarify the List of Documents included both in the second and the third categories above. As to the second category, it is agreed by the parties that a 15a should have been included and should read as follows:

15a

(a) Copy Report Chief Superintendent Murphy to Superintendent Wexford, headed: "Code 6.28" That notification of civil proceedings against Sergeant Redmond 1 8897B Wexford (undated). Date stamped 6 July, 1993.

(b) Note from Superintendent Smith to Chief Superintendent (Murphy) attaching correspondence received from Sergeant D Redmond, under cover of note: Date Stamped 5 July, '93.

(c) Letters from the Plaintiff's Solicitors addressed to Sergeant Redmond (see 22.6.93 (d) 22.6.93) headed "Donal Logue v You, Ireland & The Attorney General".

Further as to document 33, again in the second category, it is accepted that the description appearing in Mr Delaney's Affidavit is incorrect, and that the correct description should read as follows:

"33. Statement by first Defendant made following questions by Senior Counsel (undated)."

As to the third category, the Notice of Motion listed only numbers 40, 44 and 49, but again the parties have agreed that the true and appropriate way in which to read the Schedule is to accept that the document, originally listed at 33, is in fact a general description of a file, and the documents listed from 34-45 (inclusive) are the individual documents appearing in that file. I am therefore, for the purposes of this Motion, ignoring the original description of document number 33, which has been changed as above, and I deal with the matter on the basis that in the third category, the documents at issue are documents 34-45 (inclusive), all of which are included in the investigation file (originally described as 33), and document 40.

The claim to privilege is set out in Mr Delaney's Affidavit in the following, terms as to the various categories:

"4. The objection is on the grounds that the disclosure of the said documents would be contrary to the public interest for the following reasons:

(a) The said documents were brought into existence by the Garda Siochana for the purposes of communicating with the Office of the Director of Public Prosecutions for the purpose of informing the Director and his staff of matters relevant to the exercise of his function in the initiation of a prosecution against the Plaintiff herein and in discharge of his office.

(b) That the said documents of their nature may make reference to the opinion of the Garda authorities on the involvement of the Plaintiff in an offence and the said documents contain confidential information obtained by the Gardai during the course of the investigation of the alleged incident relating to these proceedings.

(c) A number of the documents contain confidential information obtained by the investigating officer appointed by the Garda Complaints Board and the Members of the staff of the Board during the course of the investigation.

(d) Communications between the first named and second named Defendants and their legal advisors, concerning the subject matter of these proceedings for the purposes of giving and receiving advice.

5. I also object to produce the said documents set forth in the second part of the First Schedule hereto, on the grounds of legal professional-privilege, in that the said documents consist of a communication to the Director of Public Prosecutions made for the purpose of giving or receiving legal advice with reference to litigation, consisting of a criminal prosecution".

It is clear from the foregoing that although 4(a) and (c) are "public policy" grounds, 4(d) and 5 are, in reality, claims based on legal professional privilege.

It was submitted by Mr Kennedy for the Plaintiff, that all of the documents in the three categories above are relevant to the case made by the Plaintiff. He argued this would be a Jury action, in which the credibility of the parties would be to the forefront. He argued that if it transpires that the documents disclose that the Defendants said one thing in one matter, and another thing in respect of a different matter, this might advance the Plaintiff's case and damage the Defendants' case. He said therefore, that insofar as the Category (i) documents are concerned, these are ones which should be disclosed.

As to the documents in Category (ii) he says that these may include views expressed in the documents which again would be of assistance or might assist in the case made by the Plaintiff and damage the Defendants' case. Finally, insofar as the question of relevance concerns category (iii), Mr Kennedy submitted that, if the claim concerning the death threat was not made bona fide, then an issue as to credibility would arise, and that would be of particular interest to the Plaintiff and, in turn, to a Jury.

On the question of privilege he submitted that the State is not entitled to claim privilege on, a "blanket" basis, and in support of this he cited the decision in Breathnach v Ireland, the Attorney General and Ors 2 IR 458.

Mr Kennedy submitted that there could be no claim to privilege arising in respect of the category (ii) documents, on their face. Nor does the Breathnach case suggest that the documents going to the DPP are privileged as a class. Further, he says anything passing merely between the Gardai themselves, cannot be privileged.

Mr Kennedy says that if the Court is satisfied that documents were genuinely created for the purposes of securing legal advices, or for the purposes of giving legal advice, or indeed if they contain legal advice, they are clearly privileged, and an instance of this is found at number 20, where it is accepted by Mr Kennedy that this document is protected by legal professional privilege. He submitted however, that the mere fact that the documents arise and are listed as being legally professionally privileged, does not determine the matter as to whether or not they should be disclosed.

As to Category (ii) documents, Mr Kennedy submitted that there is nothing in the Breathnach case to suggest that any form of privilege could exist in these.

On the part of the Defendant to the proceedings, Mr O'hOisin accepted that the Breathnach case is the one most in point on the matter, although he disagreed with the particular emphasis placed on it by Mr Kennedy. He suggested that there were two issues before the Court, namely:

(a) the question of legal professional privilege;

(b) whether that privilege continued in being from the prosecution case into the present Civil Proceedings.

He relied on the Breathnach case for the proposition that documents would only be discovered (in circumstances not dissimilar to the present case) if "necessary". He pointed out that the legal professional privilege is that of the Defendants. The DPP is such a Defendant. He drew a distinction between the DPP and his staff on the one hand, the DPP as a Client, and the DPP as a legal advisor.

He submitted that (a) communications between the Gardai and the DPP and (b) communications between the Gardai after the Proceedings were notified or indicated are all communications which are protected by legal professional privilege. He submitted that in the case of a company the Court would not consider requiring the company to make discovery or disclosure of documents which came into existence once the proceedings were indicated or notified.

He also submitted that, in relation to the file which is sent voluntarily to the DPP, such a file regularly includes not only statements of the Gardai but also opinions expressed by the Gardai as to whether or not a prosecution ought to be brought, and he submitted that these should be protected, on the basis, inter alia, that they are part of the advices sought from the DPP on the question of prosecution, and further that the public interest be given sufficient weight, to permit for the free expression of such opinion in exchanges between the Gardai and the DPP. Mr O'hOisin accepted that the same strength of argument probably could not attach to the statements, as opposed to the opinions, contained in the file delivered to the DPP.

Mr O'hOisin emphasised the dual role of the DPP when he receives an opinion from the Gardai, and points to the fact that the Gardai may at times be clients, or they may prosecute, in which event the DPP may be the Client, so that the DPP has at least a dual role as both Client and Lawyer, and it is not entirely clear at what point he ceases to be the legal adviser, and becomes a Client, or the point at which he receives his documents in his capacity as the legal adviser. Mr O'hOisin submitted therefore that it was consistent that where the Gardai are seeking directions from the DPP, the position is no different from that of a Client seeking directions from a Solicitor. Again, the position is the same in relation to the State Solicitor who acts as an Agent for the DPP, and who performs the work, having been nominated by the Chief State Solicitor. Mr O'hOisin also cited an extract from The Irish Law Office by James Casey, p 284 and says he makes the case that the role of the Gardai is not the same as the role of, say, a third party against whom documents are sought, because of their particular involvement in the matters in suit. He submitted that it is illogical to suggest that if the Gardai seek a direction, and receive a direction back from the DPP, that direction back is privileged, but not the actual documents going to the DPP on which direction is sought.

As to Category (ii), Mr O'hOisin submitted that these are internal documents, which contain comment on the present Civil Proceedings, and points to the fact that proceedings were threatened by letter of the 22 June, 1993 from the Plaintiff's Solicitors. He submitted that these were all prepared for the dominant purposes of the Proceedings, being the documents at 8-11, 15A, 17 as well as 23 and 25.

Finally as to the documents contained in Category (iii), he states that those from 34-39 are ones which contain mention of litigation between Sergeant Redmond's Solicitors and another firm of Solicitors, and that document 40 is part of the investigation file which he submits might not be relevant. These contain internal opinions as to whether or not proceedings should be brought. On the question of the relevance of these documents, he says that the investigation took place in the Autumn of 1995, and he does not see therefore how such an investigation could relate to issues arising in 1993. Insofar as document number 44 is concerned, Mr O'hOisin's objection is based on the fact that it contains an opinion, which he says is privileged and he queries the general relevance of the document.

In a short reply Mr Kennedy stated that in the Breathnach case, the documents were very much the same as the type of documents which are sought in the present proceedings. He said that the Court in that case found that there was no legal-professional privilege and as to the subsequent threat of a claim in 1995, he invited the Court to look at them, stating that they were of relevance because they might help to establish an ongoing difficulty between Sergeant Redmond and the Plaintiff. If the claim in that ongoing dispute is not sustainable, then this would go to the credit of the Garda Defendants.

Against that background, and the submissions, I find as follows. I accept, having regard to the submissions made, that it is appropriate that I should look at the documents, and these have been furnished to me by agreement between the parties, in their entirety, insofar as the three categories are concerned. I accept also that the closest case in which similar documents were discovered is the case of Breathnach v Ireland. The Attorney General & Ors [1993] 2 IR 458, in which the Director of Public Prosecutions was a Notice Party. But I also believe that the decision of the High Court and the Supreme Court in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd ILRM 589 is of assistance in considering the matter, and I turn to that case first. That was a case concerning a claim to privilege, existing in correspondence passing between Client and Solicitor, on the basis that such documents were protected by way of legal professional privilege. Of the findings of the Supreme Court, the following are of importance:

(a) The question as to whether a party to litigation is entitled to claim privilege to refuse to produce particular evidence is a matter within the sole competence of the Courts;

(b) It is for the Courts to decide which is the superior interest in circumstances of the particular case and to determine the matter of privilege form disclosure accordingly. On the question of discovery, the superior interest which justifies non-disclosure is the common good in the proper conduct of litigation. I consider this finding of the Supreme Court to be of significance, and to set out the basic principle upon which a claim to discovery and in particular a claim to disclosure, ought to be considered.

(c) Legal professional privilege extends beyond communications between clients and solicitors, during or relating to an actual or expected litigation, to all communications for the purposes of obtaining legal advice.

(d) Legal professional privilege does not extend to communications for the purpose of obtaining legal assistance, other than legal advice, as there is insufficient public interest or common good to be secured and protected by such privilege, which could justify an exemption from disclosure from the relevant evidence. Again, I consider this particular finding of the Supreme Court, allied with the finding at (b) above, to be of significance in guiding this Court, as to the manner in which documents sought to be disclosed ought to be considered.

In the Supreme Court, the Chief Justice stated (at page 591) as follows:

"The issues which arise on this appeal raise important questions as to the principles underlying the claim of privilege properly applicable to communications between a Client and his lawyers. In that case it had been contended that the privilege attaches to any communication made for the purposes of obtaining either legal advice or legal assistance, and as against that, it had been submitted that the principles laid down by the authorities supported a restriction of privileged communications made for the purposes of obtaining legal advice, but did not support a privilege applicable to communications made for the purposes of obtaining legal assistance only. An alternative submission made against the privilege, was that even if the distinction was not of general application, it applied to communications made otherwise than for the purposes of or in contemplation of litigation".

The Chief Justice continued:

"For the purpose of determining which of these conflicting submissions is correct in law it is, in my view, necessary to try and ascertain what the underlying principles of the Doctrine of Privilege of Communications between a client and his lawyers are.

The existence of some such privilege would appear to have been clearly identified at common law from the early 19th century. However the question as to whether or not a party to litigation will be privileged to refuse to produce particular evidence is a matter within the sole competence of the Courts: power to compel the attendance of witnesses, and the production of evidence is an inherent part of the Judicial Power of Government of the State, and is the ultimate safeguard of Justice in the State, of Murphy v The Corporation of Dublin (1972) IR 215 at 233."

In the same case (at p 234) the Court also held that it is for the Courts to decide which is the superior interest in the circumstances of the particular case, and to determine the matter of privilege from disclosure accordingly.

I now turn to the case of Breathnach v Ireland and Others (1993) 2 IR 458. This concerned a claim for Discovery and disclosure in the context a claim for damages for, inter alia, false imprisonment, malicious prosecution, etc, which is exactly the same claims as arise here, the discovery being sought against the Director of Public Prosecution (as third party in that case). In that case the issue of the entitlement to claim privilege in circumstances which are very much under consideration here was dealt with by Keane, J, in his judgment, in the course of which he found, inter alia, as follows:

"that the principle of public policy which protected from discovery communications between lawyer and client made in contemplation of litigation had no application to documents submitted by an investigating garda to the notice Party for the purposes of obtaining his decision as to whether or not a prosecution should be instituted."

It is interesting to note that the grounds upon which the deponent on behalf of the notice party in those proceedings claimed the privilege against disclosure are very similar to the grounds put forward in the present application. The learned judge also found:

"that the court . . . was required to balance the public interest in the proper administration of justice against the public interest reflected in the grounds put forward for non-disclosure;"

It is clear that in considering the matter, proper and adequate weight must be given to the public interest claim put forward on behalf of the party claiming to be protective of it. The type of documents which are sought to be protected against disclosure here are not ones which Keane J, stated were ones which, on their face, and because of their very nature, would almost automatically be protected. Those include, for example, documents which if disclosed might assist criminals in evading justice, or those which contain information furnished to the Gardai in confidence. Neither class is involved in the present case.

In relation to documents outside those, it seems clear that the balancing exercise should be carried out, and if the balance is in favour of disclosure, then they will be disclosed. In that connection a consideration of the extent to which the documents are or may be of assistance to the Plaintiff is appropriate.

As to the question of the claim to refuse disclosure on the basis of legal professional privilege, in the Breathnach case this matter was also considered by the court, and Keane J found:

"The position of the Director of Public Prosecution is, of course, somewhat different: he does not stand in the relationship of "client" to any other lawyer. He is in a sense both lawyer and client, since he formulated the legal opinion on which the institution or non-institution of a prosecution is based and he then becomes one of the parties to the subsequent litigation . . . The public policy which protects from discovery communications in the first category undoubtedly applies equally to communications between the Director of Public Prosecutions and professional officers in his Department, solicitors and counsel as to prosecutions by him which are in being or contemplated"

And further:

"The fact that the documents in question may, as in the present case, be submitted by the investigating gardai to the Director of Public Prosecutions in order to obtain his decision as to whether a prosecution should be instituted could not possibly give that material the same status as a medical report obtained by a plaintiff in a personal injuries action solely for the purpose of his claim."

Having regard to the foregoing principles, and the arguments put forward on behalf of the parties, and having examined the documents, I find as follows:

As to Category (i) documents, these are not privileged, with the exception of numbers 15 and 20.

No 20 is a letter which is already accepted by the Plaintiff as being privileged, on the grounds that it consists of or contains legal advice. No 15 is a letter dated the 25 August 1993, in which certain legal advices are sought from the State Solicitor in Co Wexford. Although document 20 suggests it is a response to a letter having a different date to that appearing in 15, nevertheless it is quite clear from the content of 15 that 20 is a response to it also.

As to category (ii) documents, these are not privileged;

As to category (iii) documents, these too are not privileged.

Accordingly, with the exception of the documents referred to as being privileged, all others must be disclosed. I should say in passing that certain of these documents are ones which are so innocuous as to be of little assistance to the Plaintiff and of no damage to the Defendant, and I have not balanced the disclosure of these against their non-disclosure at all. As to the remainder in respect of which a public interest claim has been made that they should not be disclosed, I have considered these in light of the balancing exercise which I am obliged to undertake, and on balance I am of the view that many of the documents will be of considerable relevance and likely assistance to the Plaintiff in promoting his claim and in damaging the Defence, and that a refusal to permit them to be disclosed is not justified on public interest grounds. This is especially so where neither of the two circumstances mentioned by Keane, J, in the Breathnach case exists here.