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Cite as: [2020] IEHC 101
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THE HIGH COURT
[2020] IEHC 101
[2013/3218 P]
BETWEEN
SUSAN BYRNE
PLAINTIFF
AND
PAUL HANNON AND AN POST
DEFENDANTS
JUDGMENT of Mr. Justice Mark Sanfey delivered on the 27th day February, 2020.
Introduction
1. The application before me is an application by the plaintiff for discovery against the
second named defendant. While the plaintiff originally sought seven categories of
documents, an accommodation has been reached between the parties in relation to four
of those categories. The remaining three categories are contentious, and are the subject
of the present application.
2. As we shall see, while the motion before me is framed solely as an application for
discovery, it was treated by the parties as effectively an application for discovery and
production of the three contentious classes of documents. The second named defendant
argues that the classes of documentation contain “highly sensitive information”, the
disclosure of which would pose “a real and substantial systemic risk to the security and
safety of post offices, including people working in them and any members of the public
using same.” During the course of the submissions before me, it was submitted that
these classes of documents attracted public interest privilege, such that the second
named defendant should not be required to produce them for use in the litigation.
Background
3. The case concerns an appalling incident in which the plaintiff and her husband became
embroiled on 4th October, 2011. At that time, the plaintiff worked as a post office clerk
at Balbriggan sub-post office, Balbriggan, Co. Dublin. Paragraph 4(a) of the Indorsement
of Claim on the personal injuries summons summarises the plaintiff’s ordeal:
“(a) On or about the 4th day of October 2011, the Plaintiff was subjected to an
aggravated burglary at her home aforesaid when three masked raiders bearing
firearms gained entry thereto and tied her up. Her husband was also tied up. Early
the following morning, the Plaintiff’s husband was taken against his will from their
home by the raiders. He was placed in a car. A dressing gown was put over his
head. The Plaintiff did not know what fate awaited her husband save and except
that his life was in danger. The Plaintiff was ordered to present herself at work and
to fill hold-all bags supplied to her by the raiders with cash following an anticipated
delivery of monies to the sub-post office later that morning. The Plaintiff was
shocked, stunned and terrified. Her husband’s life was threatened. The Plaintiff
felt nausea and was ill upon her arrival at work”.
4. Thankfully, the robbery of the post office did not proceed, and the plaintiff’s husband
resourcefully managed to escape from his captivity. The incident was what has become
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known as a ‘tiger kidnapping’, a particularly egregious form of robbery which, one must
imagine, would be very traumatic for the victims.
5. The plaintiff has sued the first named defendant, who at the time of the incident was the
postmaster of Balbriggan sub-post office. The second named defendant is An Post, which
operates the national network of post offices. It is fair to say that the nature of the
relationship between the second named defendant and the first named defendant is a
matter of dispute, and that accordingly the question of responsibility of the second named
defendant, if any, for the matters which occurred is hotly contested.
6. The plaintiff makes a range of allegations against both defendants. As regards the first
named defendant, broadly speaking, the plaintiff alleges that he failed to warn her of the
risks involved in taking keys home, failed to provide training or guidance regarding the
risks involved in holding keys for the premises and/or safe in the post office, and failed to
implement appropriate directions or guidelines directed or advised by the second named
defendant.
7. As regards the second named defendant, it is important to be clear, in the context of the
present application, about the nature of the allegations of the plaintiff against the second
named defendant. These are set out at para. 5 of the Indorsement of Claim as follows: -
“(k) Further and in addition the second named Defendant failed to provide any or any
adequate or sufficient training, directions or guidelines to the first named Defendant
in regard to the day to day management and operation of Balbriggan sub-post
office.
(l) Failed to carry out any or any adequate effective examination of day to day
practices at Balbriggan sub-post office so as to ensure that the first named
Defendant was implementing such security training, preventative measures,
directions and/or guidelines as had been offered to post masters by the second
named Defendant.
(m) Failed to ensure the first named Defendant was aware of the risk presented by
“tiger kidnapping” to members of staff at sub-post offices around the country,
including Balbriggan sub-post office.
(n) Failed to ensure that the first named Defendant had advised staff members at
Balbriggan sub-post office in preventative measures so as to eliminate or reduce
the risk of “tiger kidnapping” in the form of intrusion to the home, assault, threats
to kill, false imprisonment or kidnapping.
(o) Failed to ensure that the first named Defendant offered training, directions and/or
guidelines to members of staff at Balbriggan sub-post office with regard to the risks
presented by burglary and theft, assault and kidnapping either from the sub-post
office itself or from their homes.”
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8. Both defendants deny liability comprehensively. The second named defendant admits
that the plaintiff was employed by the first named defendant, but denies that she was
ever employed by the second named defendant, and denies that the first named
defendant was ever employed by the second named defendant “or that the second named
defendant ever bore responsibility for the actions of the first named defendant, either as
set out in the plaintiff’s Personal Injury Summons or at all, and at all material times the
first named defendant acted on his own account as an independent contractor…”. At
para. 8 of the defence, the second named defendant expressly puts the plaintiff on proof
of the specific allegations against it set out at para. 5 of the Indorsement of Claim as
quoted above.
The present application
9. By a notice of motion issued on 5th March, 2019, the plaintiff sought an order pursuant to
O.31, r. 12 of the Rules of the Superior Courts directing the second named defendant to
make discovery of seven categories of documents. The four categories which were
ultimately agreed or compromised between the parties related to training/instruction
provided by the second named defendant to the first defendant and/or his employees,
records relating to the first named defendant’s or plaintiff’s attendance at
training/instruction seminars organised by the second named defendant, a record of the
plaintiff’s registration with the second named defendant as a key holder to the Balbriggan
sub-post office and/or to a cash safe held there, and incident reports relating to tiger
style kidnappings at An Post premises prior to 4th October, 2011.
10. The three categories which remain contentious, and the reasons why they were sought,
were set out in the affidavit of Andrew Murnaghan, a solicitor for the plaintiff, in his
affidavit of 5th March, 2019 as follows: -
“7.3 Copy “Postmasters Manual” and/or other security manuals or guidelines which were
issued by An Post to postmasters during the period of five years preceding 4th
October 2011.
7.3.1 Reason: See Paragraph 1 above.
[The reason given in respect of the first category was as follows]:
7.1.1 At Paragraph 3 of the Plaintiff’s Personal Injury Summons, it has been
alleged that An Post bore responsibility for the provision and implementation
of security measures and guidelines to its network of sub-post offices around
the country, including its branch at Balbriggan, Co. Dublin. The Plaintiff has
also alleged failure by the Second Defendant to provide adequate or sufficient
training/instruction/guidelines to the First Defendant relating to day to day
management of security matters at Balbriggan sub post office (para. 5k).
The Second Named Defendant has denied that it bore responsibility to the
plaintiff for the actions/failures of the First Named Defendant and has placed
the Plaintiff on proof of this allegation.
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7.5 Records relating to inspection/supervision of security installations, fittings and/or
day to day security arrangements at Balbriggan sub-post office by or on behalf of
An Post for the period of one year immediately preceding 4th October 2011.
7.5.1 Reason: At para. 5(l) of the Personal Injury Summons, the plaintiff has alleged
failure by the Second Named Defendant to carry out any adequate or effective
examination of day to day security practices at Balbriggan sub-post office so as to
ensure that the First Named Defendant was implementing security training,
preventative measures, directions and/or guidelines as had been offered to
postmasters by the Second Named Defendant. Moreover, such supervision or
inspection might have been carried out to ensure that preventative measures,
security fittings and the like were up to date and adequate. The Second Named
Defendant has placed the Plaintiff on full proof of this contention and for that
reason; the Plaintiff has been advised and believes it necessary to request this
category of discovery.
7.7. Copy of the ‘security procedures booklet’ which was distributed by An Post to
postmasters such as the First Named Defendant for the five year period
immediately preceding the incident complained of herein on 4th October 2011.
7.7.1 Reason: The plaintiff believes and has been advised that An Post distributed a
booklet containing security procedures annually or biannually during the 5 year
period immediately preceding 2011 and the Plaintiff was entitled to know what
guidance and advice was provided to postmasters and/or employees of postmasters
and/or employees of An Post with regard to security awareness and preventative
measures.”
11. The second named defendant replied to Mr. Murnaghan’s affidavit by means of the
affidavit of Brendan Cloonan of 24th April, 2019. Mr. Cloonan is expressed in the affidavit
to be “Head of An Post Security Services”. At para. 5 of his affidavit he expresses the
second named defendant’s willingness to make discovery of certain of the categories, but
states that… “the second defendant objects to the discovery of any documents or records
which contain precise details of any security provisions and or any specific instructions
relating to security provisions on the grounds that the said documents contain highly
sensitive information, the disclosure of which would pose a real and substantial systemic
risk to the security and safety of post offices, including people working in them and any
members of the public using same, should the documents come into the public domain.”
12. These reasons are specifically advanced in Mr. Cloonan’s affidavit in relation to each of
the three contentious categories. In addition, Mr. Cloonan avers in relation to the fifth
category of documents – the second of the contentious categories referred to above –
that the documents sought to be discovered “… are not relevant to the proceedings
herein. The said proceedings relate to an aggravated burglary in a private residence, and
not in a sub-post office. Further, the plaintiff has not pleaded in her personal injuries
summons that there were any relevant deficiencies in the security arrangements at the
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Balbriggan sub-post office at the time of the incident, the subject matter of the
proceedings herein.”
The Plaintiff’s Submissions
13. Counsel for the plaintiff attached particular significance to the averment by Mr. Cloonan in
his affidavit in relation to each of the three contentious categories that they contain
“highly sensitive information, the disclosure of which would pose a real and substantial
systemic risk to the security and safety of post offices…”. Counsel argued that there was
in effect no difference between “highly sensitive information” and “confidential
information”, and submitted that confidential information or documentation could not be
withheld from discovery, as it could not be privileged. Counsel asserted that the test of
relevance and necessity, established in Compagnie Financiere AET Commerciale du
Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55 as affirmed by the Supreme Court in
Ryanair v. Aer Rianta [2003] 4 IR 264, remained the standard by which discovery
applications in general and the present application in particular should be judged.
14. Counsel also relied on the judgment of Barr J. in Ryanair Limited v. Besancon
[2009] IEHC 744. That case involved an allegation of defamation arising from certain postings
made by the defendant on a website in relation to an incident that had occurred involving
a Ryanair flight in September 2012. The defendant sought production of an investigation
report drawn up by the plaintiff into the incident. It was the contention of the defendant
that the report was highly relevant to the issues that would arise for determination at trial
and that it was necessary for him to be furnished with a copy in advance of the hearing.
The plaintiff resisted production of the report on the basis that it was a confidential
report.
15. Barr J. referred to the judgment of Kelly J. (as he then was) in Cooper Flynn v. RTE
[2002] 3IR 344, in which Kelly J. referred with approval to the judgment of Salmon LJ in
Science Research Council v. Nassé [1980] AC 1028 at p. 1071: -
“Since confidential documents are not privileged from inspection and public interest
immunity fails, the Tribunal which for this purpose is in the same position as the
High Court and the county court, may order discovery (which includes inspection)
of any such documents as it thinks fit – with this proviso: ‘Discovery shall not be
ordered if and so far as the court (tribunal) is of the opinion that it is not necessary
either for disposing fairly of the proceedings or for saving costs’.
If the tribunal is satisfied that it is necessary to order certain documents to be
disclosed and, inspected in order fairly to dispose of the proceedings, then, in my
opinion, the law requires that such an order should be made; and the fact that the
documents are confidential is irrelevant.
The law has always recognised that it is of the greatest importance from the point
of view of public policy that proceedings in the courts or before Tribunals shall be
fairly disposed of. This, no doubt, is why the law has never accorded privilege
against discovery and inspection to confidential documents which are necessary for
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fairly disposing of the proceedings. What does ‘necessary’ in this context mean?
It, of course, includes the case where the party applying for an order for discovery
and inspection of certain documents could not possibly succeed in the proceedings
unless he obtained the order; but it is not confined to such cases. Suppose, for
example, a man had a slim chance of success without inspection of documents but
a very strong chance of success with inspection, surely the proceedings could not
be regarded as being fairly disposed of, were he to be denied inspection. I, of
course, recognise that the Tribunal, like the courts, has a discretion in the exercise
of its power to order discovery. It would, however, in my view, be a wholly
wrongful exercise of discretion, were an order for discovery and inspection to be
refused because of the court’s or the Tribunal’s natural aversion to the disclosure of
confidential documents notwithstanding that the proceedings might not be fairly
disposed of without them.”
16. Barr J. went on to comment as follows:
“27. Counsel submitted that production of this document was essential to enable the
defendant to properly mount his defence to the defamation proceedings brought by
the plaintiff. He stated that if the document was withheld from the defendant, this
would mean that there would be a ‘blind spot’ at the trial of the action, whereby the
defendant, the judge and the jury would all be deprived of an important
investigation report which had been carried out into the incident, which was central
to the postings which had been made by the defendant on the website. It was
submitted that if that were to happen, that would be a very unsatisfactory state of
affairs, which meant that the trial could not be fairly disposed of without giving the
defendant access to this document. For these reasons, counsel submitted that the
defendant had clearly established that the BI Report was relevant and necessary to
his defence at the trial of the action”.
17. In the event, Barr J. ordered production of the BI Report by the plaintiff to the defendant,
subject to certain redactions in order to remove the names of persons making statements
or providing information. There were also restrictions placed on the dissemination of the
report, and provisions for return of the report at the conclusion of the litigation.
18. Counsel for the plaintiff relied heavily on the foregoing dicta of Barr J., submitting that his
client was in the same situation as the defendant in that case, and suggested that there
would also be a “blind spot” in the present proceedings if the plaintiff were not furnished
with the documentation sought. Counsel argued that the documents may make it clear
that his client has a strong prospect of success, and were accordingly highly relevant and
necessary.
The Second Defendant’s Submissions
19. Counsel for the second named defendant made it clear that it was not asserted by the
second named defendant that the documents in the three contested categories do not
exist. It was all but conceded that they do.
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20. The second named defendant relies on its assertion that the documents “contain highly
sensitive information, the disclosure of which would pose a real and substantial systemic
risk to the security and safety of post offices”. That argument is used for each of the
three categories. In addition, it is argued in relation to the second of the contested
categories that the documents sought are not relevant as “the proceedings relate to an
aggravated burglary in a private residence, and not in a sub-post office”.
21. It was submitted that, as regards the “sensitivity” argument, the averments by Mr.
Cloonan as to the sensitivity and systemic risk of disclosure carry particular weight given
Mr. Cloonan’s position as head of security services for the second named defendant, and
should be accepted by the court in circumstances where no affidavit by a security expert
is proffered by the plaintiff. As against that, it is perhaps unreasonable to expect the
plaintiff, who does not have the documents, to proffer an expert to comment or speculate
as to the sensitivity or systemic risk arising from disclosure of the documents.
22. The second named defendant did not seek to equate “sensitivity” with “confidentiality” in
the way that counsel for the plaintiff did. Rather, it was argued that the documents in the
contested categories attract public interest privilege. In that regard, counsel relied on the
decision of Murphy J. in Gormley v. Ireland [1993] 2 IR 75. In that case, the plaintiff,
who had been employed as a clerical officer by the Minister for Posts and Telegraphs, was
interned in July 1957 at the Curragh Camp under or by virtue of the provisions of the
Offences Against the State Act 1939. The state defendants objected to production of
documents sought by way of discovery on the grounds of national security. Murphy J.
accepted that the documents in question were of a sensitive nature, and accordingly held
that some of the documents sought by the plaintiff were privileged.
23. Similarly, the sensitivity of the documents in the contested categories, for the reasons set
out in the affidavit of Mr. Cloonan, was urged upon the court as supporting a valid claim
for public interest privilege.
24. Counsel for the plaintiff did not accept that the second named defendant was entitled to
privilege over the documents, and complained that the reliance on public interest privilege
had not been flagged in Mr. Cloonan’s affidavit (there were in fact no written submissions
in the case). Counsel reiterated the assertion that the appropriate test was that of
relevance and necessity, which the plaintiff manifestly satisfied.
Analysis
25. It emerged during the hearing of the motion that the second named defendant was
effectively making the case that it was entitled to public interest privilege over the three
contested categories of documents, and therefore should not be required to discover
them. Discovery was, for the purpose of the motion, regarded by both parties as co-
terminous with production; essentially, the second named defendant argued that the
documents did not have to be discovered or produced.
Page 8 ⇓
26. The normal procedure is that a claim of privilege is made in relation to documents listed
in the affidavit of discovery. As McKechnie J. put it in the Supreme Court decision of
Keating v. RTE [2013] IESC 22 at para. 45:
“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. [1998] 2 ILRM 156 at p. 159. In the
vast majority of cases, it is only via this procedure that the privilege issue will be
determined.”
27. McKechnie J. went on to say:
“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.”
28. In the present application, in response to the plaintiff’s motion for discovery, the second
named defendant submitted at the hearing that the documents in the three disputed
categories attracted public interest privilege. While Mr. Cloonan’s affidavit objects to
discovery of the three disputed categories, it is clear when one reads his affidavit that
what he was objecting to was not so much discovery of these documents in the sense of
their being listed in an affidavit of discovery, as inspection and production of those
documents. Likewise, the reasons given in Mr. Murnaghan’s affidavit on behalf of the
plaintiff for discovery of these three categories of documents relate to the necessity to
have access to the documents, and are therefore directed towards inspection and
production as much as discovery.
29. In the circumstances, and given that the parties were each, in their affidavits and in
submissions to the court, approaching the motion on the basis that any documents which
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were ordered to be discovered would be available to the plaintiff for inspection and use at
trial, I decided that, rather than insisting that the parties not conflate the issues of
discovery and production and limiting the argument between the parties as to what
should or should not be discovered, the pragmatic approach would be to deal with the
motion on the basis on which the parties had approached it, and deal with the central
dispute between the parties as to whether or not a claim for public interest privilege by
the second named defendant defeated what was effectively a claim for discovery and
production of the documents in the disputed categories. This approach, while not strictly
consistent with the approach set out by McKechnie J. in Keating, at least had the
advantage of limiting further costs and delay in the matter, as well as being in accordance
with the approach adopted by the parties.
30. The principles relating to public interest privilege were set out in the seminal decision of
the Supreme Court in Murphy v. Dublin Corporation [1972] 1 IR 215 and restated in
Ambiorix v. Minister for Environment (No. 1) [1992] 1 IR 277. The principles are
summarised by Finlay C.J. at p. 238 of Ambiorix as follows:
“1. Under the Constitution the administration of justice is committed solely to the
judiciary by the exercise of their powers in the courts set up under the Constitution.
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.”
31. Having set out these principles in Keating, McKechnie J. said at para. 36:
“36. In the implementation of these principles the following practice has developed:
(i) in general, where competing interests conflict the court will examine the text
of the disputed document and determine where the superior interest rests: it
will carry out this enquiry on a case-by-case basis;
(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
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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.”
32. Many of the cases in which the Ambiorix principles were applied concerned documentation
generated by state entities. However, I do not think that the assessment of the public
interest depends on the nature of the body from whom the documents are being sought.
As Finlay C.J. stated in Burke v. Central Independent Television plc, unreported, Supreme
Court, 3rd March 1994 at p. 5:
“…the function of this Court … is to resolve a conflict between two aspects of the
public interest so as to perform the judicial function of deciding upon what evidence
in the interests of justice the Court should act in this case for the purpose of
reaching a decision.”
33. The second named defendant operates a nationwide network of post offices. It is
asserted that the documents sought contain “highly sensitive information, the disclosure
of which would pose a real and substantial systemic risk to the security and safety of post
offices, including people working in them and any members of the public using same…”.
This wording is used by Mr. Cloonan in relation to each of the three disputed categories.
It is submitted that the public interest of the security and safety of post offices, the
people who work there and other parties such as customers using them outweighs any
right of the plaintiff to what would otherwise be relevant and necessary documentation
which might advance the plaintiff’s case or damage that of the second named defendant,
and that, in these circumstances, the claim of public interest privilege over such
documents must succeed.
34. Having heard the submissions of both parties, I formed the view that, notwithstanding
that no listing of the documents had taken place in a formal affidavit of discovery, and
having regard to what Mr. Cloonan had to say in his affidavit about the disputed
categories, a claim of public interest privilege could exist in respect of the categories
sought. In the circumstances, I informed the parties that I considered that the
appropriate approach was to follow the practice set out by McKechnie J. in Keating as set
out above, and examine the text of the disputed documentation to determine where the
superior interest rested.
35. The parties indicated their agreement to this approach, and to a period of eight weeks
within which the second named defendant would compile and furnish to the court the
documentation in question. The second named defendant’s solicitors duly complied with
this requirement, and a volume comprising the documents under the three disputed
categories was furnished to the court.
Page 11 ⇓
36. Having examined those documents in the light of the established principles, and in
particular the principle that public interest privilege must be determined by reference to
the circumstances in which the plea is made, I set out below the following conclusions.
37. One document was furnished in category 7.3 referred to at para. 10 above. This was an
undated “Postmaster’s Manual”. The manual states in its introductory paragraph that
“…the rules in this book contain the general regulations of An Post applicable to
postmasters at sub-offices…the rules should be carefully studied and applied, and the
postmaster should see that his/her subordinate officers are acquainted with the
instructions affecting their respective duties”. While the manual contains much that is not
relevant to the present case, it does contain a section on “security”. Having considered
the contents of the manual, I am satisfied that it is relevant to the matters at issue in the
case, and that its discovery is necessary for the fair disposal of the case.
38. The manual is certainly a confidential and sensitive document. However, I am satisfied
that there is at this stage no significant risk that disclosure of the information contained in
it will cause a “real and substantial systemic risk to the security and safety of post offices,
including people working in them and any members of the public using same…”, as
suggested by Mr. Cloonan. The document, while undated, predates the incident the
subject of the proceedings, and parts of the document at least may in fact be of
considerably greater antiquity. In this regard, there is a notation on the bottom of the
title page of the “security” section which states: “Iris an Phoist 2/9/92”.
39. In the circumstances, I am satisfied that this “Postmaster’s Manual” should be discovered
and that it does not attract public interest privilege.
40. Only one document was proffered in relation to category 7.5 referred to at para. 10
above. This was an invoice dated 7th December, 2010 which appears to relate to an
intruder alarm upgrade that was undertaken at Balbriggan sub-post office. This
document appears to me to be neither relevant to the allegations against the second
named defendant, nor necessary for the fair disposal of the proceedings. Accordingly, it
is not appropriate to order discovery of this document.
41. In relation to category 7.7 referred to at para. 10 above, the second named defendant
has proffered a document entitled “Security Procedures Handbook for Retail Sub-Post
Offices”. I am informed that this document dates from “2006”. The front page is marked
“Confidential”. It contains a preface entitled “An Post Security Statement”, which is as
follows:
“An Post is fully committed to supporting postmasters to ensure the safety and
security of all its staff, contractors, visitors, customers and company assets by
ensuring that all retail locations have both physical and electronic security systems
to an appropriately high standard. An Post provides clear and concise documented
security procedures which are intended to provide efficient and effective
instructions on the operational requirements of its cash handling and retail
operations”.
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42. The introduction to the handbook commences by stating as follows:
“This handbook is intended as a convenient reference for postmasters engaged in
the provision of post office services. Postmasters shall mean either male or female
person, contracted to provide retail and mail services on behalf of An Post. It
should be read in conjunction with the specific written security procedures agreed
with your regional office. While not all of it may be relevant to your particular
office, you will find it useful in assessing the risks and taking measures to reduce
the likelihood of security breaches/robberies. The information contained in this
handbook is confidential and should not be divulged to anyone other than your
staff”.
43. The handbook covers a range of security procedures, most of which relate to security
matters concerning the operation of the post office itself. There is a brief section devoted
to “Hostage/Tiger Kidnap.”
44. Having perused this handbook, I find that there is little of relevance in it to the allegations
made against the second named defendant. The section on “Hostage/Tiger Kidnap” does
not, in my view, contain any information which, if disclosed, would pose a “real and
substantial systemic risk to the security and safety of post offices, including people
working in them and any members of the public using same”, should the documents come
into the public domain.
45. I am fortified in this conclusion by the fact that this booklet was issued some fourteen
years ago. I was furnished with a “Security Procedures Handbook” from 2013 for
comparison purposes, although I am not aware if this is the latest iteration of the Security
Procedures Handbook issued to retail post offices. In this handbook there is also a
section on “Hostage/Tiger Kidnap”. It is clear from a perusal of this handbook that the
2006 procedures, to the extent that they are set out in the 2006 handbook, have been
substantially revised and augmented in the 2013 handbook, to the extent that the 2006
handbook could not reasonably be regarded as setting out present An Post policy in
relation to hostage/tiger kidnappings.
46. There can be no doubt that, if the plaintiff is not permitted to have access to the 2006
handbook, she is significantly hampered in her ability to establish what training, directions
or guidelines were given by the second named defendant to the first named defendant in
relation to security measures generally and in relation to tiger kidnapping in particular, to
the point where she may not be able to establish her case against that defendant at all.
47. In all the circumstances, I am of the view that the 2006 handbook is relevant to the
matters at issue and necessary for the fair disposal of the case. I find that the booklet
does not attract public interest privilege. However, I will permit redaction of the phone
number to which reference is made in section 29 (p. 19) of the booklet, should the second
named defendant deem that appropriate.
Page 13 ⇓
48. To the extent that the booklet refers generally to the security systems and training in
relation to post offices, these are of some relevance to the issues in this case as they
demonstrate the level of training and information, and the implementation of security
systems, which An Post put in place and communicated to postmasters at retail offices
prior to the incident the subject of the proceedings. These details will assist in
establishing the context in which security arrangements regarding tiger kidnapping were
made and communicated to postmasters, and the adequacy or otherwise of those
arrangements. I am therefore not disposed to order redaction of the other sections of the
handbook, which, as I have mentioned, is at this stage fourteen years old and has been
superceded by at least one further handbook.
49. However, the handbook is undoubtedly a confidential document, and contains information
which, notwithstanding that the handbook has been superceded by a subsequent edition,
may be sensitive and which requires some protection from general dissemination.
50. Accordingly, I will make an order pursuant to O. 31, r. 12 of the Rules of the Superior
Courts directing the second named defendant to make discovery of
(i) the “Postmaster’s Manual” issued by An Post to postmasters during the period of
five years preceding 4th October, 2011; and
(ii) the “An Post Retail Sub-Offices Procedures Handbook” of 2006.
51. I will also make an order permitting the redaction by the second named defendant of the
telephone number to which reference is made on p.19 of the said “An Post Retail Sub-
Offices Procedures Handbook” of 2006.
52. As I have indicated, although the application before me is not an application for
production in its terms, it has effectively been treated as such, the parties having
conflated the concepts of discovery and production in the course of their submissions.
Accordingly, I will merely indicate at this stage that I would expect, as a condition of
production, that the plaintiff and the solicitor dealing with the matter on his behalf would
each undertake to the court to restrict sight of the documents in respect of which I have
ordered discovery to themselves, counsel, and any expert witness who it is intended may
give evidence at the hearing. The plaintiff’s solicitors should further undertake that the
report will be used for the purpose of providing legal advice to the plaintiff and for the
purpose of the hearing of these proceedings, and for no other purpose. Any expert
witness given access to the report should likewise undertake only to use the documents
for the purpose of the proceedings, and for no other purpose.
53. The parties may wish to agree that these orders be incorporated in the court’s order
notwithstanding that no formal order for inspection or production is being made. In any
event, I will hear the parties as to the precise form of order and give liberty to apply in
case there is a practical difficulty.
Result: The court granted discovery in respect of documentation relating to safety procedures concerning tiger kidnappings.