High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Ref: MORF5209

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________
QUEEN'S BENCH DIVISION ________
BRESLIN AND OTHERS -v- MCKENNA, RIRA, MCKEVITT, CAMPBELL, MURPHY AND DALY
________
Preliminary Ruling on Discovery Application ________

MORGAN J

[1]      By a Writ of Summons issued on 10 August 2001 the plaintiffs claim damages arising from death and injury caused by the detonation of a bomb in Omagh on 15 August 1998. The claim is based on trespass and conspiracy to injure.
[2]      Appearances were entered on behalf of the third and fourth named defendants in August 2002 and a statement of claim was served on 15 January 2003. Defences were served on behalf of the third and fourth named defendants in February 2003 and an appearance on behalf of the first named defendant was served on 23 March 2004.
[3]      On 15 September 2004 the fourth named defendant's solicitors successfully applied to come off record because legal aid was not available to their client to pursue his defence. A similar application on behalf of the third named defendant's solicitors was granted on 9 December 2004 and that on behalf of the first named defendant's solicitors was granted on 6 January 2005. I have been advised that the first, third, fifth and sixth named defendants wish to defend the case despite the withdrawal of their solicitors. I do not know the position of the fourth named defendant. Until very recently each of those defendants was detained in Portlaoise prison although the fifth named defendant may now have been admitted to bail.
[4]      On 23 November 2004 the plaintiffs lodged an application for discovery. The plaintiff's case is that the Omagh bomb was planned, prepared, transported and detonated by persons acting on behalf of a terrorist organisation styling itself the Real IRA. It is contended that the first, third, fourth, fifth and sixth defendants were involved at various stages of the operation.
[5]      In respect of the first named defendant it is alleged that he was in possession of mobile phones from which he made calls on 15 August 1998 as he travelled from Omagh towards the Republic of Ireland. Those phones, it is alleged, were used in other RIRA operations in the months preceding the bomb. The inference which the plaintiffs seek to establish is that the first named defendant was involved in the operation to plant the bomb. The first named defendant was convicted on his plea of guilty to one count of possession of explosives on 13 June 2003 with intent to endanger life at the Special Criminal Court in the Republic of Ireland on 21 October 2004. He was also charged with one count of membership of the RIRA on the same indictment. The plaintiffs seek access to the Book of Evidence which was served on him in the criminal proceedings.
[6]      It is alleged that the third named defendant was a member of the army council of the RIRA at the time of the bombing. The plaintiff contends that in that capacity he was involved in the operation. On 6 August 2003 he was convicted after a trial before the Special Criminal Court of membership of the RIRA between 29 August 1999 and 28 March 2001 and directing terrorism during the same period. In that trial evidence was given by David Rupert who alleged that the third named defendant was a member of the army council of the RIRA at the time of the bombing and that he had made admissions in respect of it. The plaintiffs seek the Book of Evidence and any transcripts in respect of the hearing. The conviction of the third named defendant is subject to an appeal which has yet to be heard.
[7]      It is alleged against the fourth named defendant that he was a member of the army council of the RIRA at the time of the bombing and that he has made admissions relating to the bomb. In May 2004 he was convicted by the Special Criminal Court of membership of the RIRA on 3 October 2000 and 29 July 2001. The plaintiffs seek discovery of the Books of Evidence in respect of each charge and any transcripts of any hearings.
[8]      In respect of the fifth named defendant it is alleged that he provided phones which were used in the operation to transport the bomb. It is also alleged that his phones were used in other RIRA operations. On 22 January 2002 he was convicted of conspiracy to cause the Omagh bomb at the Special Criminal Court. His conviction was overturned on appeal in January 2005. The plaintiffs seek the Book of Evidence in respect of the trial together with any transcripts of the hearing.
[9]      So far as the sixth named defendant is concerned his position is similar to that of the first named defendant. He is alleged to have used the Murphy phones while travelling from Omagh towards the border and the plaintiffs' case is that he was involved in the operation to plant the bomb. He was charged with membership of the RIRA between 29 April 1998 and 20 November 2000. On 26 February 2004 he pleaded guilty to membership of the RIRA on 4 November 2000. That plea was accepted. The plaintiffs seek access to the Book of Evidence in his case.
[10]      The plaintiffs pursue their application under Order 24 Rule 7 of the Rules of the Supreme Court. In order to succeed the plaintiffs must show that it is likely that the documents are in the custody, power or possession of the defendants and that they are relevant to the issues in the action. Relevance is to be determined in accordance with the principles in Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 so that the test is whether the documents contain information which may enable the party applying for discovery either to advance his case or to damage that of his adversary or whether the documents may fairly lead the applicants to a train of enquiry which may have either of those consequences. I consider that documents containing information suggesting a connection at any time between any of the defendants and the RIRA either as a member or an activist in that organisation may enable the plaintiffs to advance their case that the defendants were engaged in that organisation's activities on 15 August 1998. Accordingly on the material available to me I conclude that the test of relevance is met. Similarly the evidence clearly suggests that the relevant documents are in the power of the defendants.
[11]      I have had the benefit of submissions from senior counsel on behalf of the third named defendant prior to his withdrawal from the case. At a hearing on 29 November 2004 I was advised that the third named defendant had no objection to the production of any document touching upon his trial in Dublin which was provided to his solicitors and had no objection to the production of the transcript of his evidence, He suggested, however, that there was some impediment to the defendant being permitted to disclose these documents because of the criminal proceedings against him. I have now been provided with an affidavit of law from Maurice G Collins SC which contends that there is no such impediment. I have also been provided with a transcript of a hearing before the Special Criminal Court in which senior counsel for the Director of Public Prosecutions in the Republic of Ireland expressly indicates that the Director has no objection to the discovery sought. On this material I am satisfied that no impediment to production arises out of past or present criminal proceedings.
[12]      I have also taken into account written submissions made on behalf of the fifth and sixth named defendants. Both defendants argue that the order is premature pending determination of their legal aid position. Secondly they wish to have a ruling on the burden of proof and the determination of an abuse of process application. Thirdly they raise issues about self incrimination. Fourthly they contend that discovery is not necessary because the plaintiffs should be able to prove their case without access to these documents. Lastly the fifth named defendant contends that if his appeal is successful (which it was) the documents would not be relevant or admissible.
[13]      So far as prematurity is concerned this application relates to events which occurred more that 6 years ago. The litigation has now been ongoing for more than 3 years. The documents are specific and in my view clearly relevant on the test set out above. When these documents have been produced the plaintiffs will set out the substance of the evidence upon which they will rely and this litigation will be able to move forward. Despite the fact that defences have not been served on behalf of the first, fifth or sixth named defendants I consider that it is necessary in order to fairly advance this litigation to make the order at this stage. The issues of abuse and burden of proof can be dealt with later.
[14]      Issues relating to self incrimination can be dealt with in the replying affidavits if they arise. The argument that discovery is not necessary proceeds in my view from a very narrow approach to the legal test which does not accord with the Peruvian Guano test. The test of relevance is not the same as that of admissibility and I am of the view that the test of relevance is satisfied in the fifth named defendant's case because on the basis of the application discovery and inspection of the documents may give rise to a train of enquiry.
[15]      The defendants other than the third named defendant have not appeared in respect of the discovery application although representations were made to me on the position of the fifth and sixth named defendants. All 5 defendants the subject of this proposed order were detained in Portlaoise prison during the hearing of this application. At least four of the defendants apparently remain there. I consider, therefore, that the defendants should be given an opportunity to make representations in writing about this proposed order before it issues. I will, therefore, allow the defendants 28 days to make such representations as they wish. I direct that each of the defendants be provided with a copy of the discovery application and grounding affidavits, a copy of the transcript of the hearing of the plaintiffs' application before the Special Criminal Court on 11 January 2005, a copy of the written representations provided by the fifth and sixth named defendants and a copy of this ruling. If the defendants request legal assistance in respect of representations or compliance with this order I will consider recommending to the Legal Services Commission the retention of one solicitor with authority to instruct one senior and one junior counsel on behalf of all of the defendants as long as any such application is made within 14 days from today by writing to the following address:

The Writ Office

Queen's Bench Division

Royal Courts of Justice

Chichester Street

Belfast BT1 3JF

[16]      If the defendants seek to pursue that course it is for them to identify the reasons why I should make any such recommendation and it would be for them to retain any solicitor of their choice should their application succeed.