High Court of Ireland Decisions

1. The Applicant was on the 30th October, 1997 charged with 237 offences of a sexual nature allegedly committed against 43 complainants. On the 17th November, 1997 the Applicant obtained leave to bring these proceedings from Geoghegan J. The grounds upon which leave was granted were as follows

2. By Order of this Court (McCracken J) made on the 9th March, 1998 it was ordered that the first named Respondent do within 4 weeks of the date thereof make discovery on oath of the documents which are and have been in his possession or power relating to the matters in question in this action, the Affidavit on behalf of the first named Respondent to be sworn by Thomas J Waldron. An Affidavit of Discovery was sworn by the said Thomas J Waldron on the 8th July, 1998. By Notice of Motion dated the 24th July, 1998 the Applicant sought further and better discovery and an order for the production for inspection of the documents set out in the second part of the first schedule to the said Affidavit of Discovery. An Affidavit of Discovery was sworn on the 8th December, 1998 by John Rohan an assistant solicitor in the office of the Chief State Solicitor. By Notice of Motion dated the 9th December, 1998 the Applicant sought an Order requiring the Respondents to produce for inspection the documents set forth in the second part of the first schedules of the Affidavits of documents already sworn in respect of which the Respondents had claimed privilege. In addition in this Notice of Motion the Applicant sought an Order directing the Respondents to make further and better discovery of material documents which they claimed were in the possession of the Respondent but had not been discovered.

3. By Order of this Court (Geoghegan J) made the 28th January, 1999 it was ordered that within two weeks from the date thereof an Affidavit to be sworn by the Applicants solicitor be served and filed by the Applicant to specify which of the documents discovered by the first named Respondent in relation to which the first named Respondent is claiming privilege were being disputed by the Applicant and stating the reasons for such dispute.

4. The Applicants solicitor Denis O’Sullivan swore a lengthy Affidavit on the 9th February, 1999 which was expressed to be for the purpose of grounding a Notice of Motion dated the 9th December, 1998. This Affidavit notwithstanding the date of its swearing does not attempt compliance with the Order of Geoghegan J made on the 28th January by specifying the documents in respect of which the privilege claimed was disputed. A further Affidavit of Discovery was sworn on the 3rd June, 1999 by John Rohan and this was expressed to be in response to the Affidavit of Denis O’Sullivan sworn on the 9th February, 1999. An Affidavit of Discovery was also sworn on the 3rd June, 1999 by Michael Comyns. This Affidavit was expressed to be for the purpose of clarifying the grounds upon which an executive privilege was claimed earlier. A further Affidavit was sworn by Denis O’Sullivan on the 29th June, 1999. This seeks production of documents for inspection in respect of which privilege was claimed by the Respondent. This Affidavit complains about delay on the part of the Respondents in furnishing Affidavits of Discovery, having regard to the fact that the matter came before Geoghegan J on the 3rd June, 1999 who on that day adjourned the matter to the 2nd July, 1999 on terms that the first named Respondent should furnish to the Applicants solicitor such further Affidavit or Affidavits as were necessary to comply with the Order of Discovery made the 9th March, 1998 together with copies of all documents in respect of which production for inspection was not being contested, the same to be furnished to the Applicants solicitor on or before Friday 25th June, 1999. A further Affidavit was sworn by the said Denis O’Sullivan on the 26th July, 1999. It appears from this Affidavit that a further adjournment of the matter had been granted to the 27th July, 1999 on the basis that the discovery and documents sought were to be furnished not later than a week prior to the 27th July, 1999. This Affidavit also complains of the manner of the notification to Mr. O’Sullivan of an intended application for a further adjournment on the 27th July, 1999 and claims an order requiring the first named Respondent to be examined on oath, in relation to the documents which are or have been in his possession or power relating to the matter in issue in the proceedings on the basis that it is alleged that it is had been admitted and established that such Affidavits as had been filed on behalf of the said Respondent did not constitute a compliance with the Order of Discovery made the 9th March, 1998. There is also a claim for such an Order or such further Order as would ensure immediate compliance by the first named Respondent with the Order of this Court made the 9th March, 1998.

5. By Order of this Court (Geoghegan J) made the 26th July, 1999 the matter was adjourned peremptorily to Monday 11th October, 1999. A further Affidavit of Discovery was sworn by Domhnal Murray Solicitor, professional officer in the office of the first named Respondent, on the 7th September, 1999. An Affidavit of Discovery was sworn by Kieran T McCann a Superintendent of An Garda Siochana on the 7th October, 1999 and a further Affidavit of Discovery was sworn by John Rohan on the 8th October, 1999. A further Affidavit was sworn by Denis O’Sullivan on the 7th October, 1999. In this Affidavit Mr. O’Sullivan complains that an agreement made the 5th August, 1999 that inspection facilities in respect of the documents listed in the first schedules part one of the Affidavit of Discovery of Superintendent Waldron, already made, would be provided on the 10th August, 1999 at 2.30 p.m. but that, that agreement was breached by the letter of the 9th August, 1999 received by Mr. O’Sullivan from the Chief State Solicitors office which purported to refuse the aforesaid inspection facilities. In the light of this refusal, which it is contended by Mr. O’Sullivan was a further disobedience of the Order of the 9th March, 1998, Mr. O’Sullivan repeats his application made in an earlier Affidavit for an Order requiring the first named Respondent to attend to be examined on oath as to the documents in his possession or power and to explain the manner in which he has conducted himself in relation to these proceedings.

6. A further Affidavit was sworn by Mr. O’Sullivan on the 2nd December, 1999. The express purpose of this Affidavit was to exhibit and verify correspondence which had passed between the parties since the date of the previous Affidavit.

7. On Friday 3rd December, 1999 the matter came on for hearing before Greoghegan J and on that day he made the following Order

8. The Applicants application for inspection was by this Order duly determined.

9. The day before the substantive judicial review proceedings came on for hearing before me the Respondents served a number of additional Affidavits, numbering 11 including an Affidavit of Service of the other 10. In one of these Affidavits there is exhibited all of the statements made by the 43 complainants in respect of whom the 237 charges arise.

10. As a consequence of this it was submitted by Dr. White for the Applicant that the case against him was now altered beyond recognition. As a consequence of his submission in this regard he renewed his Application for inspection and whereas when the matter preceded before Geoghegan J on the 3rd December, 1999 he had merely sought the documents referred to in the Order of Geoghegan J., in the light of what he contended was the wholly altered nature of the case which he now had to meet, his renewed application for inspection was in respect of all of the documents in respect of which privilege was claimed by the Respondents on various grounds, save those created after 30th October, 1997.

11. In pursuit of this extensive challenge to the privileges claimed by the Respondents, the argument on the issue expended far and wide over the entire topic of legal professional privilege and public immunity privilege involving a consideration of all of the authorities in this jurisdiction and some from the United Kingdom on these topics.

12. The Respondents argued strenuously in favour of the validity of the privileges claimed but also placed considerable reliance on Order 31 Rule 18 (2) of the Rules of the Superior Court which is in the following terms

13. I have carefully considered the contents of the 10 Affidavits delivered to the Applicants the day before the substantive proceedings began and I have compared these to the Affidavits already filed in the case on behalf of the Respondents. I have come to the conclusion that these further Affidavits do not materially alter the case being made by the Respondents up to that point in time as represented by the Affidavits already filed by them together with the exhibits referred to therein, and the Notice of Opposition of the Respondents. It is true that there is some elaboration of material already in the case but in my opinion nothing is introduced to the case of a material nature which was not already there.

14. Dr. White points to paragraphs 3 and 11 of the Affidavit of Domhnal Murray sworn on the 18th February, 2000 together with paragraph 19 of the supplemental Affidavit of Thomas Waldron sworn also on the 18th February, 2000 as containing between them material which fundamentally altered the case hitherto being made by the Respondent in regard to the provision of expert opinion to the first named Respondent and as justifying inspection in respect of the expert opinion in question, notwithstanding the fact that Geoghegan J. heard and determined the Applicants express application in respect of inspection of that document on the 3rd December.

15. I cannot accept that the averments contained in paragraphs 3 and 11 of the Affidavit of Domhnal Murray and paragraph 19 of the Affidavit of Thomas Waldron both sworn on the 18th February, so fundamentally alter the case hitherto made by the Respondents as contained in the Affidavits that were there on the 3rd December, 1999 as to justify an interference with the ruling made by Geoghegan J at that time.

16. In my opinion these paragraphs do no more than add some detail to the averments contained in paragraph 3 of the Affidavit of Edward J P Hanlon sworn on the 10th February, 1998 and paragraph 13 of the Affidavit of Thomas Waldron sworn on the 6th March, 1998.

17. The Applicants application for inspection was heard and determined by Geoghegan J on the 3rd December, 1999. In my opinion there is no basis in the fresh Affidavits served for contending that a case is materially altered. While it is undoubtedly the case that the Respondents were grossly in delay in producing these Affidavits at that time, the Applicant cannot be permitted to derive an otherwise unmerited tactical advantage from the default of the Respondents.

18. As of the 3rd December, 1999 the Applicants, notwithstanding numerous and lengthy Affidavits sworn by Denis O’Sullivan had failed to comply with the Order of Geoghegan J made the 28th January, 1999 directing the Applicant to specify which of the documents discovered by the first named Respondent in relation to which the first named Respondent claimed privilege was being disputed and stating the reasons for such dispute. Nevertheless the matter came on before Geoghegan J on the 3rd December, 1999 and in what was I am told a short application in which the Applicant was content to limit his application and did not pursue extensive inspection on the basis of the Affidavits before the Court at that time, and the application was duly determined by Geoghegan J.

19. I have come to the conclusion that nothing has materially changed since then and in light of that I am of opinion that it is not necessary either for disposing fairly of the cause of matter or saving costs that further inspection be ordered.

20. In the light of the foregoing conclusions it is not necessary for me to deal with the extensive submissions made on the authorities relating to the principles applicable to legal professional privilege or executive or public policy privilege. Accordingly I refuse this application for further inspection.