SUPREME COURT OF IRELAND
9 MAY 2013
Justice William M. McKechnie
(delivered the judgment of the court)
Arising out of a television broadcast transmitted on the 19th July, 2001, which had as its inquiry, an investigation into the alleged importation of drugs into this State and their subsequent possession for sale or supply, the plaintiff instituted High Court proceedings in which damages were sought for defamation, negligence, breach of duty and for breach of both Constitution and Convention rights. It was claimed on his behalf that he had been libelled in a variety of ways; this occurred notwithstanding the fact that the defendant (or “R.T.É.”) had express knowledge that his participation in such activity had been at all times under the control, direction and guidance of An Garda Síochána, for which he was acting as an informer. In the defence as filed, the defendant raised several pleas including one of justification. In support of this plea, the national broadcaster applied for third party discovery against both the Commissioner of An Garda Síochána (or “the gardaí” or “An Garda Síochána”) and the Revenue Commissioners, the latter by reference to their Customs and Excise branch. That application failed before the Master but was successful in the High Court on a fresh notice of motion which issued on the 20th December, 2007. The Revenue Commissioners (“the Revenue” or “Customs & Excise”) have now appealed to this Court against the resulting order of McCarthy J. which was made on the 23rd July, 2008.
On the due date, namely the 19th July, 2001, the defendant broadcasted an episode of the well known current affairs programme, “Prime Time”, in which the activities of a number of persons allegedly involved in the illegal importation of controlled drugs and in their unlawful possession for sale or supply, were investigated. This broadcast, which covered inter alia, the years 1995 and 1996 was given intense pre-delivery publicity by way of repeat promotional “trailers”, from which the plaintiff’s identity could clearly be ascertained. Being concerned over this, An Garda Síochána intervened and as a result the broadcaster, immediately prior to the commencement of the programme itself, made the following announcement:
[f]or reasons of security it has been deemed necessary to remove at late notice images and references to the name of one of the key individuals named in tonight’s programme
It is not in dispute but that the individual in question was the plaintiff and that the purpose of such contact was to protect the safety of his person through non disclosure of his identity.
Notwithstanding these concerns however, and in clear disregard of the preceding announcement, it is claimed that the plaintiff’s name was identified on three occasions during the transmission and partially identified on a number of other occasions. Further, it is also claimed that R.T.É. failed to adequately block out images of Mr. Keating and to properly redact his name and other identifiers, through means readily available and at its disposal. In addition, it is asserted that by reason of the clear images shown of his then and former residence and of his motor vehicle it is evident that any person who knew the plaintiff could readily identify him from this published material. Finally, it is also alleged that from the overall broadcast it is quite obvious that he was a central figure in the programme as a whole.
In the pleadings it is asserted on the plaintiff’s behalf that during the programme, he was characterised as a “criminal insider” who was a member of a criminal gang “before he ever contacted the Gardaí”, that he “served two masters”, that he “stored major quantities of cannabis, cocaine and ecstasy tablets around his house”, that in addition to a quantity of drugs seized by the gardaí, he imported “50,000 ecstasy tablets”, and that he was the “transportation manager” for this major drugs gang.
At para. 8 of the statement of claim it is pleaded that in their ordinary and natural meaning the aforementioned words meant and could reasonably have been understood to mean, inter alia, that the plaintiff:
“was a person of criminal disposition who profited unlawfully from his involvement in the illegal importation of drugs into the State;”
“acted in the course of his involvement with a criminal gang for his own personal advantage and benefit;”
“diverted quantities of the aforementioned consignments of drugs for his own personal advantage and benefit;”
“rendered assistance to the said criminal gang for his own personal advantage and benefit;”
“had possession of and control over large quantities of illegal drugs;”
“stored quantities of illegal drugs in his house;”
“acted illegally and in disregard of the law;”
“was a person of treacherous and immoral character”;
“was an untrustworthy, irresponsible, unreliable and dishonest person”;
“was not a fit, decent, responsible and law-abiding member of society”;
“was unfit to have the company of all decent, responsible, law-abiding and/or right-thinking members of society."
In its defence, R.T.É. admits publication of the words referred to at para. 4 supra, and does not deny that such refer to the plaintiff. It does however assert that the same must be understood in the context of the programme as a whole. Save in respect of one alleged imputation, it denies that the words were intended to or indeed could have the meanings set out at para. 5 above: however should they have such meaning, the same are true in substance and in fact. Based on the affidavit evidence of Ms. Trish Whelan, solicitor for R.T.É., it is most probable that this justification plea will be R.T.É.’s central defence to the liability aspect of the claim. Accordingly, it is in this context that the instant appeal must be considered.
The one exception exempted from this plea, is the defamatory imputation set out at para. 5(c) above. It is accepted that such is libellous and it is stated that a sum of money has been lodged in respect thereof.
Following the close of the formal pleadings, a series of notices seeking further particulars of both the claim and the defence were served. Ending with a reply in January, 2006, the following further information, relevant to the plaintiff’s activities, were revealed by him:
in early 1995 he was approached by a named individual with a view to getting involved in drug-running between the Netherlands and Cork. Before participating in such activity however, he approached the gardaí, informed them of what was intended and offered his help: he was recruited by them and thereafter worked as an informer. As such, before embarking on each of the journeys next mentioned, he supplied relevant information to, obtained clearance from and operated under the surveillance and scrutiny of An Garda Síochána;
between January, 1995 and December, 1996, he made ten trips in all to Holland, ostensibly as part of the gang, but in reality in furtherance of the above arrangements then in place between himself and the gardaí;
the third trip, in March, 1995, was the first occasion upon which he imported drugs into this country (save for a sample which he brought back from his first trip in January 1995), as well as meeting in person, also for the first time, a senior member of the drugs squad. Upon disembarking the ferry at Cork until the drugs were dropped off at a point nominated by the gang, the entire operation was garda-monitored;
the fourth trip is notable because the gardaí told him that Customs and Excise intended to arrest him so as to prevent 20,000 ecstasy tablets from getting onto the streets. Apparently however, after some discussion between the State agencies, Customs was satisfied with a garda undertaking that they would prevent that happening: in the follow up and in order to give an appearance of reality to the gang, a check point was put in place with the plaintiff being directed to crash through the erected barriers, dump his car and then escape. He says that this in fact is what occurred;
in September, 1995 (the seventh trip), the plaintiff was directed by the gardaí to take home a small amount of hash; and
on the ninth trip he was stopped by a Customs and Excise official at an Irish ferry port: present also was a plain-clothed member of the gardaí, who told the plaintiff to drive off, which he did, while another member had a heated discussion with that official; however, though complying with that instruction he was immediately followed by a number of unidentified cars. Eventually, and after a prolonged period, his motor vehicle was taken from him by gardaí whom he claims drove it around the Dublin mountains for several hours afterwards so as to lose any Customs official who might have been following him.
Ms. Whelan in her affidavit further outlines that on the 3rd June, 1998, the plaintiff was stopped by Customs and Excise immediately after disembarking the ferry at Ringaskiddy, Co. Cork. In response to questioning she averred that he gave an extensive account of the nature and extent of his involvement in the importation of controlled drugs into this State. A report detailing the information obtained during this encounter was then sent to the Director of the Customs National Drugs Team (“CNDT”) and a copy was forwarded to An Garda Síochána. This document she says is of considerable interest to R.T.É. in its defence of this action.
As is evident from the foregoing it is admitted in the pleadings that the plaintiff imported controlled drugs into this State on more than one occasion and that he did so, ostensibly, as part of a criminal gang. It is also admitted that he was otherwise involved in major criminal activity. Save perhaps as to detail and degree, these matters will not be in issue at trial. What will be however, is whether his involvement in such activity was at all times under the direction of the gardaí, or whether at any time, either for self-gain or gain for others, he acted independent of that arrangement.
Motion for Discovery
Against this background and having been refused voluntary discovery, the defendant, by notice of motion dated the 22nd October, 2007, seeks orders pursuant to O. 31, r, 29 of the Rules of the Superior Courts (“RSC”) requiring non-party discovery. From An Garda Síochána, R.T.É. seeks all documents referable to the plaintiff’s involvement in the unlawful importation of controlled drugs and to his possession of such drugs for sale, distribution or supply. From the Revenue it seeks in identical terms all documentation regarding their importation, but not regarding their possession; in addition and “without prejudice” to what was previously sought, it further requested:
.... all documentation referable to the detention or questioning of the plaintiff or both, by an officer of Customs and Excise at Ringaskiddy, County Cork on or about the 3rd June, 1998, including but not limited to any report concerning that incident
As part of its search for documentation it should also be noted that R.T.É. wrote to Coughlan Griffith & Company, the plaintiff’s solicitors, on the 3rd August, 2005, seeking voluntary discovery of five different categories of documents, with the first three being described as follows:
all statements made by the plaintiff as a witness in any or any intended criminal proceeding within this State;
all documentation regarding the nature and operation of “The Witness Protection Programme” and the plaintiff’s eligibility therefor, and participation in, allowing for redaction where strictly necessary to prevent identification of the undisclosed current residence of the plaintiff; and
all documentation relating to any and all criminal convictions of the plaintiff, whether incurred in this State or any other jurisdiction.
The remaining categories were relevant only to damages, if and when that issue should arise.
The response, by way of letter dated the 14th January, 2006, confirmed that voluntary discovery of categories 1 to 4 would be made within four weeks of that date. Category number 5 was not mentioned. Ms. Whelan subsequently wrote to the plaintiff’s solicitors on a number of occasions seeking confirmation as to whether or not the plaintiff intended to make discovery of category 5, to no avail. The time line as given by the plaintiff’s solicitors and subsequently extended, was not in fact adhered to, as the plaintiff’s solicitors apparently had some difficulty in obtaining instructions from their client. Further slippage followed. Eventually the defendant issued a motion on the 21st June, 2006 seeking discovery against the plaintiff in the same terms as previously sought. The Master of the High Court made the requested order on the 2nd November, 2006 and allowed a period of twelve weeks for due compliance. That order was not appealed. However, to date, R.T.É. has generally been dissatisfied with the plaintiff’s response and issued a further motion to have the proceedings struck out for failure to make proper discovery. That motion which was eventually struck out by consent has not materially altered the situation.
The High Court Judgment
As above outlined, the High Court on the 23rd July, 2008, made an order for discovery against both the Commissioner of An Garda Síochána and the Revenue Commissioners in the terms sought, save that its ambit was limited to documents created prior to but not after, the 19th July, 2001, the date of the R.T.É. broadcast. The learned judge, having noted in his judgment that the plaintiff did not have in his possession such documents, was satisfied as to both relevance and necessity: he so concluded, in particular, having had regard to the nature of the allegations made by the plaintiff, even if such were viewed only in the context of his record and his admitted criminality. He rejected the argument that such discovery was oppressive. He dealt with the suggestion that in any event the “privilege”, which the Revenue would undoubtedly assert was a complete answer, by stating; “that if, plainly and without capacity to contradict, a document sought was privileged the court would refuse an application for discovery and would have regard to the reality of the situation”. It seems self-evident from his decision that in his view this was not such a case. Quite obviously it remained open to the non-parties to claim privilege in the normal way if they so wished. As that stage had not been reached he quite correctly saw no reason to decide on the competing public interests at issue: the administration of justice versus crime fighting and confidential communications intra officials and between officials and informers. He was therefore satisfied to make the order as mentioned.
The Commissioner of An Garda Síochána has not appealed the aforesaid order and accordingly, on his behalf the required affidavit was sworn on the 22nd December, 2008. In the First Part of the First Schedule there is one document disclosed, which is a two page custody record relating to a detention of Mr. Keating on the 27th of June, 1997. In the Second Part of that Schedule six documents are identified over which privilege is claimed. This claim is supported on the basis that such documents are of a sensitive and confidential nature, and also that they refer to sources of garda intelligence. It is further said that the disclosure of these would be damaging to the detection and prevention of crime as they would reveal some the confidential working practices and techniques of the force. Finally it is also stated that such disclosure would potentially put at risk the safety and lives of the persons referred to therein. Accordingly, their content should be preserved and their detail protected.
It should be noted that this generalised justification applies to all documents so identified: in addition, legal professional privilege is also claimed in respect of two of these documents. As is evident from what has previously been stated, the validity of the privilege objections, as raised by this non-party is yet to be determined.
On the 21st day of November, 2008, the Revenue appealed against the said High Court order on fourteen grounds. These may be grouped into the following categories, all suggesting that the learned judge, in a variety of ways, erred in law or in fact, or in combination of both:
in failing to hold that, as R.T.É. wished to explore the relationship between the plaintiff and An Garda Síochána, there was no basis for making an order against the Revenue or at least, none for doing so prior to discovery being exhausted against An Garda Síochána and the plaintiff;
in holding that the documents sought were relevant and necessary and that the criteria for third party discovery had otherwise been satisfied;
in failing to have due regard to the fact that the documents sought would be subject to a privilege plea;
in failing to pay any or any due regard to the competing interests involved in such a claim, in particular that referable to the sensitive and confidential nature of the information requested;
in failing to find that R.T.É.’s move was merely a fishing exercise to reinforce justification for the upcoming action; in any event the discovery order was overly broad and oppressive; and
in failing to exercise his discretion properly and refuse the order sought.
The legal submissions filed in support of the appellant can conveniently be understood in the context of the affidavit evidence sworn by Mr. Brian Smyth, an Assistant Principal with the Central Intelligence and Drugs Enforcement Branch of the Revenue’s Customs Service, in opposing the High Court application, in which he also draws on the affidavit filed, for a similar purpose, by the Commissioner of An Garda Síochána. Before dealing with that however, an overview of what the Revenue factually says.
It is stated by the Revenue firstly, that it has a shared competence with the gardaí in the enforcement of drug legislation and to that end, has a deep interest in information gathering and surveillance. Trust, confidence and cooperation are critical for the effective functioning of this inter-unit responsibility. Secondly, whilst the actual existence of material falling within the parameters of what is sought is not denied, the same was obtained in confidence and any forced disclosure would seriously impact on the free flow of such information, as trust is the vital commodity underpinning such arrangements. Therefore, access to such documents would gravely prejudice the success of both agencies in this regard. Thirdly, it further says that the force of this argument is enhanced by the support which it receives from the affidavit of the Commissioner which it also relies upon.
In his affidavit, which like that of Mr. Smyth’s was sworn prior to the High Court hearing, Chief Superintendent Cloonan informs us that the plaintiff is a participant in the Witness Protection Programme and that such programme is designed to deal only with matters of the highest security and to provide protection for those admitted, who invariably face a serious threat to their lives. For such programme to function effectively there must be full trust, confidence and cooperation between all involved: this demands that the identity of an individual who participates in the Programme should remain absolutely immune from disclosure, at all costs.
The Chief Superintendent goes on to say that securing an unrestricted flow of confidential information between statutory agencies with which the gardaí have a relationship in their fight against crime, is essential: if trust should break down, that line of vital communication would be hampered. It is thus critical that the arm of discovery should not extend in the far-reaching way as now suggested by the plaintiff.
Furthermore, he says that “there is little to be gained and in fact there is much to be lost”, should the Commissioner be directed to make non-party discovery where a claim for privilege will be asserted, and where that claim most likely will be upheld by the courts. In such circumstances therefore, this discretionary remedy should be refused.
Anchoring itself firmly within this setting, the Revenue submits that the trial judge miscalculated the competing interests in play and should have assigned to those advanced on behalf of the public – the prevention, investigation and prosecution of serious crime, including the agency’s methodology, tactics and procedures – far greater weight than what he did. To produce, even to list by description the requested documents, would prejudice the functioning of the Customs & Excise office in this important area, thus discovery from the outset and as a matter of principle should be refused (Director of Consumer Affairs and Fair Trade v Sugar Distributors Ltd.  1 I.R. 225(“Director of Consumer Affairs”); Foley v Bowden  2 I.R. 607 (“Foley”); and McLoughlin v Aviva Insurance (Europe)  I.L.R.M. 487).
While acknowledging that the issue of privilege does not, as such arise, it is nevertheless submitted that as non-party discovery is a discretionary matter, the Court, in light of the privilege plea which is almost bound to succeed, should terminate the proceedings, even at this stage. To do otherwise would ultimately be pointless: see Corscadden v BJN Construction Ltd.  I.E.H.C. 42.
The Revenue also states that the raison d’être for R.T.É.’s application is simply to buttress its defence inter alia of justification for the forthcoming trial, a purpose which cannot justify a general trawl for relevant documentation. Hannon v The Commissioner of Public Works (Unreported, High Court, McCracken J.) 4th April, 2001 is cited in support.
On the vitally important question of “necessity”, it is asserted that such has not been established for a number of reasons: firstly, R.T.É. has not disclosed what material it already possess relating to Mr. Keating’s activities; secondly, the correct respondent to such a request would be An Garda Síochána, as it is the particular relationship between it and Mr. Keating which is in issue and not the Revenue’s relationship with him; thirdly, if R.T.É. succeeds in rebuffing the claim of privilege as advanced by An Garda Síochána, the documents then obtainable will render the application against the Revenue moot; fourthly, equally if R.T.É. fails on this issue, it is also most likely that it would fail in its application against the Revenue, thereby once again rendering the application moot; and lastly, the plaintiff himself may be the depository of such documents.
Finally it is said that the order as drawn is overly broad (McDonagh v Sunday Newspapers Ltd.  4 I.R. 528 (“McDonagh”)) and is oppressive in nature.
The respondent to this appeal counters that the submissions of the Revenue Commissioners as outlined, are based on a misunderstanding of its application, in many respects. Firstly it must be pointed out that discovery is sought not simply to establish the nature of the relationship in question, but more acutely, to identify the limits of that relationship, so that the criminal activities of the plaintiff can be appropriately positioned. Secondly, as these illegal activities are entirely at odds with the Revenue’s role in drugs law enforcement, it cannot be heard to argue that it is indifferent to the controversy in question, or that it might not have documentation pertaining to these said activities. Evidently, it is part of its function to have such documentation. Furthermore, as the June 1998 questioning is not denied nor is the compilation of the subsequent report, it is untenable to claim that An Garda Síochána should be the only party to the discovery application, particularly now in light of its discovery affidavit.
With regard to the objection based on an alleged trawling exercise, R.T.É. firmly rejects this: it says that it is unnecessary to disclose the full extent of the justification evidence which it has, it being sufficient to point to what the pleadings have already disclosed. In addition it seeks to distinguish McDonagh on the basis that a simple plea of justification was raised in that case, with effectively no particulars of any kind being furnished before the discovery application was moved. Furthermore, it is entirely dismissive of the “oppression” point, particularly in light of the Gardaí’s discovery affidavit dated the 22nd December, 2008, which lists a total of only seven documents, six of which it claims privilege over. Given their similar roles in the investigation of drug trafficking, it is difficult to see any merit whatsoever in this argument. Moreover, given the specific and precise category of document sought – namely that relating to the questioning of Mr. Keating by a Customs Excise officer on the 3rd June, 1998, and the subsequent report – it cannot be argued with any credibility, as is attempted, that such is a randomised chase for documentation.
It is also submitted that an assertion of privilege in itself does not in any way exempt a party or a document from the discovery process: if an order for discovery is made, the document has to be listed in the affidavit in the normal way but, if relevant and applicable, privilege can be pleaded in respect of it (Haughey v Moriarty (Unreported, High Court, Geoghegan J.), 20th January, 1998 (“Haughey”) at p. 10). While there can be circumstances where a claim of privilege can defeat an application for discovery, such would be very much an exception to the general rule and can only arise in very limited circumstances, which do not exist in this case. In any event, where such a plea is made, the onus lies on the party so asserting to establish it: such is not achieved by simply relying on a general public interest claim in doing so. Whilst the appellant expresses general concerns for inter-agency co-operation and for the free exchange of information and also mentions the effectiveness of the Witness Protection Programme, it does not outline how the documents sought might affect any of these matters. Moreover, it is for the courts, not the executive to determine such an assertion (Ambiorix v Minister for the Environment (No. 1)  1 I.R. 277 (“Ambiorix”); Breathnach v Ireland (No. 3)  2 I.R. 458 (“Breathnach”); Livingstone v Minister for Justice (Unreported, High Court, Murphy J.) 2nd April, 2004; and Foley).
The respondent finally submits in this regard that while there are some differences between the criteria relating to inter- and non-party discovery, the essential elements remain the same, i.e. whether the documentation sought is both relevant and necessary. None of the additional factors highlighted by Finlay C.J. in Allied Irish Banks plc v Ernst & Whinney  1 I.R. 375 (“Allied Irish Banks plc”) are relevant in the instant case. It is therefore said that the High Court, having properly identified the non-party criteria, correctly applied the resulting test.
Discussion - Conclusion
The Decision Maker
The primary submission articulated by the appellant in oral argument is one which, in essence, seeks to avoid the consequences of Murphy v Dublin Corporation and The Minister for Local Government  I.R. 215 (“Murphy”), and a host of later cases all of which endorsed, supported and followed that particular decision. In Murphy, as part of his challenge to the validity of a Compulsory Purchase Order, the plaintiff sought discovery of an inspector’s report prepared for the Minister under Art. 5(2) of the Third Schedule to the Housing Act, 1966. Such an application was resisted on two main grounds:
firstly, that the document fell within a “class of documents” which should be withheld on public interest grounds; and
secondly, that in any event disclosure should also be denied as the same would be contrary “to public policy and detrimental to the public interest and the public service”.
Underpinning this argument was the crucial submission that on so certifying the Minister, as part of the executive organ of government, should, as such and by reason of his own judgment, be allowed to withhold such document. That argument gave rise to a central issue in the case which Walsh J. characterised as follows (p. 233 of the report):
[t]he present claim of privilege is that in a civil action the executive organ of government may by its own judgment withhold relevant evidence from the organ of government charged with the administration of justice and engaged in the determination of the rights of the litigants, and that this may be done when the claim of privilege is made on either or both of the grounds already mentioned.
The Court emphatically rejected this contention on constitutional grounds, holding that it was solely for the judicial power, as part of its exclusive competence in the area of administrating justice, to make such judgment. It was therefore impermissible to allow any other body or entity to embark upon such an inquiry or to reach such a decision.
Several years later the Supreme Court was asked to revisit Murphy: it did so in Ambiorix, but rejected any alteration to the stated principles, which Finlay C.J. (not by way of expansion or qualification), summarised at p. 283 as follows:
In the implementation of these principles the following practice has developed:
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;
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 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);
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
in performing this exercise, no presumption of priority exists as between conflicting interests.
As can therefore be seen, as a result of this constitutional position, which is mandated by the separation of powers and which permits of no exception, it is for the courts alone to resolve, in a justiciable setting, any conflict or tension which may arise between the public interest in the administration of justice on the one hand, and the public interest, howsoever articulated, which is advanced as a ground for non-disclosure of documents on the other. That being so, neither the Executive nor any other person can arrogate to themselves the power to make a decision such as the one in issue in this appeal. If it were otherwise, it would be, in the words of McCarthy J. in Ambiorix (p. 289) “to lessen or impair judicial sovereignty in the administration of justice”. Such an occurrence in fact would in itself be inimical to the common good as the public also has a vital interest in the role which this organ of government is committed to perform under the Constitution.
Given the complexity of modern government, at both national and local level, it is no surprise to see that many different forms of public interest, asserted in support of the effective functioning of the public service, have been offered as a defence to disclosure requests. Some of these include:
the conduct of an investigation into the affairs of Bord na gCón (Fitzpatrick v Independent Newspapers  I.R. 132;
the making of a complaint to the Director of Consumer Affairs, who has important law enforcement functions (Director of Consumer Affairs);
the general investigation and prevention of crime (Breathnach); and
the statutory functions of the Garda Síochána Complaints Board (Skeffington v Rooney  1 I.R. 22).
Whatever the particular interest relied upon, it should be noted that its terms must be formulated by reference to the issues in question and must be particularised in such a way that the courts can properly adjudicate thereon.
In applying the above principles it is clear that the Revenue’s first line of resistance to the application under appeal cannot be allowed to succeed, for if it was, such would seriously trespass upon what is the lone province of the court in determining the underlying dispute between itself and R.T.É. on the discovery issue. In effect, as a party to the motion, it seeks also to become a judge in the cause. This it cannot do: there is but one arbiter which has the authority to determine such a matter. That competence cannot be foreclosed upon and neither by design nor default can it be assumed by any other. This simply reflects what the Constitution ordains. Thus, the only decision maker in this type of situation is the judicial power. Any other course would be to subvert the constitutional role of the courts, to distort the separation of powers and to step down the safeguards which these values seek to uphold. Accordingly, the suggested approach of the Revenue is incompatible with constitutional norms, as identified in the established case law and must therefore be rejected.
The position as outlined would only call for a different analysis if the extreme situation postulated in Murphy or one of equal gravity came to exist, in which event, an opinion from the executive branch, depending on circumstances, may have entirely different consequences. Walsh J., in the following passage at p. 234 made reference to this point:
[a]gain, taking the example of the safety of the State, it might well be that the court would be satisfied to accept the opinion of the appropriate member of the executive or of the head of the Government as sufficient evidence of the fact upon a claim being made for non-disclosure or non-production, as the case may be, on that ground. I have referred to non-disclosure and non-production as distinct matters because in certain circumstances the very disclosure of the existence of a document, apart altogether from the question of its production, could in itself be a danger to the security of the State.
However, the learned judge quickly added that such was not the case in Murphy and therefore it was “unnecessary to deal further with this aspect of public interest” (p. 234).
This particular issue was also touched upon in Ambiorix by Finlay C.J. who, having clearly read the above passage as confining such cases to those relating to the security of the State, added the following (p. 284):
I would emphasise that the facts of the instant case on the submissions of counsel for the defendants quite clearly do not introduce any such question of the safety of the State, such as is dealt with in this passage, and I would, as did Walsh J., prefer to leave over further consideration of that particular issue until it arises for decision in a case.
It was therefore in his opinion not necessary to further develop the point.
Likewise, it is not my intention to do so, but may I be permitted to make but one observation on what the situation would be if the type of threat referred to should come to pass. It is that the public interest, in our institutional structures and their functioning, in the integrity of citizens, as individual persons and as a collective body, in the security of homes, property and other possessions, or in whatever particular area should immediately be under peril, would have to be evaluated by reference to the circumstances actually presenting and be judged against the public interest in ensuring that the rule of law, in its full judicial sense, continued to afford true and meaningful protection to all. As with the former types of public interest, the latter is likewise crucial to the safety and security of the State. That said however, as such matters do not fall for consideration in this case, like Walsh J. in Murphy and Finlay C.J. in Ambiorix, I too would defer any further discussion of State safety until the issue should actually arise.
Accordingly, as the Revenue has not advanced any further argument in support of its first submission, this ground of appeal must fail.
The Privilege Plea
By a separate and independent route, the apellant has urged that the same conclusion should be arrived at, on the basis that its intended claim for privilege is bound to succeed and accordingly, to force the creation of a discovery affidavit would be an exercise in futility. By means of this argument, founded on a public interest claim said to be closely associated with its role and responsibility in drug enforcement and information sharing, it seeks to avoid making any affidavit. Such proposition, which is advanced as a complete answer to the application, is of course made at the first step of the process, namely disclosure as distinct from production. Whilst it is acknowledged that this is not the norm, nonetheless it is said that this is a suitable case for the adoption of such a procedure.
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  2 I.L.R.M. 156 at p. 159. In the vast majority of cases, it is only via this procedure that the privilege issue will be determined.
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.
This view of the process is not in any way inconsistent with the decision of Geoghegan J. in Haughey. In fact the observations of the learned trial judge at p. 10 of the judgment are entirely supportive of what should normally be done. As it happened in that case, because of the great urgency involved, the two stages of the process were merged into one with the agreement of all parties; who to that end made available for the hearing all relevant documents, appropriately described and particularised. The case therefore, as the trial judge himself said, is an exception to what will routinely happen.
When examining the factual side of the instant case in the context of these principles it is clear that I should refrain from expressing any view more than what is necessary to deal with the particular point, for to do otherwise may risk pre-empting the ultimate outcome of the privilege issue. In light of that I refer only to the following matters:
R.T.É. has not sought disclosure of any documents from either the Revenue Commissioners or from An Garda Síochána referable to the Witness Protection Programme, or the plaintiff’s participation in it;
what is requested is documents which were generated in or about 1995/1997 to coincide with the plaintiff’s criminal activities. As such, it is difficult to see how they could have any relevance to his participation in the Programme which only commenced in 2001;
as the plaintiff has never given State evidence in any criminal trial of third parties arising out of these activities, it must be very doubtful at this remove if he ever will;
it must be at least arguable, or perhaps even likely, that the expressed concerns regarding the exchange of information may be overstated as the relevant events occurred almost 15 years ago;
further it seems a surprising proposition in law, that the sharing of information with third parties would, by reason of that fact alone, insulate such information from disclosure; if that was the case, such a simple expedient could have very far-reaching consequences for the administration of justice;
in any event it is quite likely that the Revenue may have at least some documents, generated otherwise than by the exchange of information with other agencies; it has not denied that this may be the case and has not specifically put in issue the 1998 encounter; and finally
it seems to be established law that the furnishing of documents in confidence does not of itself make them privileged: In re Kevin O’Kelly  108 I.L.T. 97 and Burke v Central Independent Television plc  2 I.R. 61.
In addition, no reason particular to its work or prejudicial to its activity is prayed in support of this submission – certainly nothing of significance which cannot be argued and fully ventilated at the inspection stage. It is therefore difficult to see what justification there is for circumventing the detailed rules and the well-established practices which have regulated the discovery process for many years.
In light of the above therefore and in the absence of knowing how the Revenue will formulate a privilege claim in respect of what documents they might have, I am far from satisfied at this stage of the procedure that any privilege so asserted will inevitably succeed. Or to put it differently, I cannot say that R.T.É. will ultimately exit this process empty-handed. Accordingly, this ground of appeal must also fail.
As is evident from what previously appears, the application before the High Court was for third party discovery and therefore O. 31, r. 29 RSC applies. It is unnecessary to recite that rule, it being sufficient to say that by reference to the issues raised in this appeal, it is necessary for the moving party to establish:
that the Revenue has or is likely to have in its possession or power documents falling within the parameters of the type of documents sought;
that such are relevant to an issue or issues in the action;
that an order for discovery is necessary for disposing fairly of the cause or matter or for saving costs; and
that any order made, by reference to its scope, is not oppressive.
See Allied Irish Banks plc.
In addition it should be noted that the making of such an order is at all times a discretionary matter.
As is clear from the above the Revenue Commissioners have not denied the existence of documents of the type sought to be discovered nor have they denied the occurrence of the June, 1998 interrogation or the creation of specific documents relating to that incident. Therefore, the requirement specified at para. 51(i) has been satisfied. Consequently, the next question is whether the test of “relevance” has been satisfied, followed closely by the issue of “necessity”.
Relevance and Necessity
It is well established that documentation sought by discovery “[has] to be relevant to the matter in issue” (Stafford v Revenue Commissioners (Unreported, Supreme Court, O’Flaherty J., 27th March, 1996). The question of what documentation so qualifies was considered by Brett L.J. in the well-known case of Compagnie Financière et Commerciale du Pacificque v Peruvian Guano Company (1882) 11 Q.B.D. 55 at p. 63 where he stated that:
[i]t seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have to put in the words ‘either directly or indirectly,’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these tw[o] consequences (sic).
This statement was quoted with approval by Kenny J. in Sterling-Winthrop Group Ltd. v Farbenfabriken Bayer A.G.  I.R. 97, at p. 102 and subsequently was followed on multiple occasions in this jurisdiction. It was quoted with approval again, as recently as 2003, as remaining “the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought” (Fennelly J. in Ryanair plc v Aer Rianta c.p.t.  4 I.R. 264 (“Aer Rianta”) at p. 275). In short therefore, relevance will be established not only where the documentation sought would be evidence of some issue, but also if what is sought can or may advance one’s own case or damage that of one’s adversary, including if it may lead to a line of inquiry which may result in either.
In accordance with this test and on any understanding of the issues as pleaded (paras. 4, 5, 8 and 10 supra) – such being the relevant issues and not those in the submissions – it is in my view an inescapable fact that the documents sought readily meet this criteria and therefore must be considered relevant.
On the question of “necessity” some observations of a general nature may firstly be made. As was pointed out by Fennelly J. in Aer Rianta, once documents are found to exist which are relevant, it seems unfair to deprive a party of their availability to either advance his case or to rebuff that which he is expected to meet. As a sense of individual justice, this seems undoubtedly correct, as it does also in serving the course of justice. Although relevance and necessity are separate concepts, there is a close relationship between the two. Hence, once the former criteria is established it will most usually follow that the documents in question can also be regarded as being necessary, i.e. necessary within the meaning of O. 31, r. 12(3) RSC which also applies to non-party discovery. Indeed, this point was made by Geoghegan J. in Taylor v Clonmel Healthcare Ltd.  1 I.R. 169, and echoed in very much the same language by Murray J. in Framus Ltd. v CRH plc  2 I.R. 20. An important indicator in this regard is whether the documents requested are required for the fair disposal of the issue to which they are addressed. If they are, it is most likely that they will be considered necessary.
This issue has also been argued under a number of specific headings, many of which can quickly be disposed of. It is clear from the accepted position of the plaintiff that he does not have in his possession, or have the power to acquire any documents of the type sought in the discovery motion. That possible alternative source is therefore not available. The position with An Garda Síochána, as it presently stands, is that the only document discovered over which privilege is not claimed is a custody record of the plaintiff’s detention in June, 1997, which is unlikely to be of much value. Whether that will be supplemented by any further documents will have to await the determination of the privilege issue. However and notwithstanding the outcome, whatever it might be, it is difficult to see why in principle discovery should not have been sought against the Revenue given its frontline involvement in drug enforcement and its cooperative engagement with An Garda Síochána in that regard. Whilst there is a possibility of some overlap in the documentation which both non-parties might have, nonetheless, even if this is the case, which is anything but clear, that factor in itself could not be a bar to seeking third party discovery against more than one non-party. In addition, I am satisfied as a matter of probability that whether ultimately obtainable or not, both non-parties are likely to have some documents independent of each other which are relevant to the justification plea. Consequently, I believe that the application against the Revenue is justified and that properly viewed it must be looked upon, free from the constraints of the Revenue’s position.
In this case therefore, there is no doubt in my mind but that at both a general and specific level, the requested documents comfortably satisfy the well-established approach to this necessity issue.
Purpose of Discovery
In several of ways the Revenue has argued that this application is abusive, either as a fishing exercise or as a trawl search for any evidence to support the justification plea, in circumstances where R.T.É. has not disclosed what material it already possesses to stand over that plea.
Discovery has been described as “an instrument to advance the cause of justice” (O’Flaherty J. in Allied Irish Banks plc at p. 396). Its purpose is to aid a party in the progress of litigation: it is not designed to identify grounds capable of establishing a cause of action, i.e. it cannot be used to enable a person to plead a cause of action or a defence which he is not otherwise in a position to plead. Flaherty J., by reference to authority and principle, has stated so unequivocally in Galvin v Graham-Twomey  2 I.L.R.M. 315 (“Galvin”). In that case the plaintiff, the vice-principal of a primary school, claimed damages inter alia for libel and for a breach of her constitutional right to her good name against another teacher at the same school. In the Civil Bill it was alleged that the defamatory allegations were contained in letters which had been sent by the defendant to third parties. The plaintiff did not have possession of and in fact had never seen the letters of which she sought discovery. In dismissing the plaintiff’s appeal he held that in suing for defamation a person must set forth in the pleadings the details of her complaint with some particularity. A plaintiff “cannot be permitted to launch his proceedings and then hope by discovery to be able to amend his pleadings and thereby make his case” (at p. 320). In such circumstances the attempted use of the discovery process was inappropriate and the defamation aspect of her claim was stuck out.
This is in keeping with the strong dicta of the courts that mere fishing expeditions are prohibited: Finlay C.J. stated in Bula Limited (In Receivership) v Crowley  1 I.R. 220 that “before making any order for further discovery [a court] .... should not, in particular, permit the opposing party to indulge in an exploratory or fishing operation” (p. 223). Similar comments were made in the case of Aquatechnologie Ltd. v National Standards Authority of Ireland (Unreported, Supreme Court, Murray J., 10th July, 2000), who noted that:
documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.
From these cases and disregarding actions for discovery, in respect of which see Megaleasing U.K. Ltd. v Barrett  I.L.R.M. 497 and Doyle v Garda Commissioner  1 I.R. 249, it seems clear, at least in principle, that a sharp distinction exists between situations where a party, be he plaintiff or defendant, seeks discovery to support or advance his particular viewpoint and where such is sought for the purposes of making or formulating a claim which otherwise does not exist. In other words, discovery is an aid to further a viable action or defence, or an issue in either, but not a means in itself to establish one. Whilst in practice such a distinction may not always be self-evident, nonetheless, as a matter of principle it clearly exists. Therefore, any attempt to use the process purely to create a cause of action will be regarded as abusive. Galvin, both conceptually and in practice, amply demonstrates this point.
This issue may arise at two distinct points in the litigation process, prior to the commencement of the trial itself. The first may relate to an allegation by the plaintiff that the defendant, in his defence, has failed to particularise the justification plea or to outline the material facts upon which it is based. That is not the situation in this case. The second, as in the instant case, is where discovery is sought to support such a plea. In order to avoid breaching the fishing prohibition, to use an old but apt phrase, it is necessary for the moving party to disclose some information upon which the plea is based. Whether such appears in the defence document or in the particulars matters not: nor does the means by which such information had been acquired. Provided the court is satisfied that some such evidence exists, that will be sufficient. The court does not and should not evaluate its strength as a defence plea. This is not its role on such an application. Nor is it necessary for a defendant to disclose the full extent of what information he may have. He does not have to compromise his defence in this regard. Once it is shown that the plea can be supported, the discovery application cannot be regarded as a fishing exercise or as one whose sole purpose is to establish a justification plea: rather, its proper characterisation in such circumstance, is one of aiding and supporting the material which already exists. This of course is the essence of what discovery is.
In this case, as appears from the documentation which is partly outlined elsewhere in this judgment, it is quite clear that the criminal activity to which the justification plea is addressed has been detailed and particularised. There can be no doubt but that all interested persons are fully aware of what this plea relates to. That in my view is quite sufficient to dispose of this argument. Therefore the application cannot be resisted on this basis. In addition, perhaps it is worth noting that this ground of objection is not that of the plaintiff but that of a non-party whose involvement is solely confined to the discovery application.
Finally, in my view, there is no substance in the argument that the order as drawn is oppressive. Firstly it is specific to a single individual; secondly it relates to particular conduct which has been clearly described; thirdly it is confined in time, by reference to the criminal activity as the start date and by reference to the express terms of the order as the end date; fourthly the interrogation issue could not be more specific. In addition, given the information supplied the Revenue will have no difficulty in identifying the issues. Lastly, a simple reference to the affidavit of the Commissioner of An Garda Síochána immediately demonstrates the lack of substance to this point.
For these reasons, I would dismiss this appeal and note that if an issue of privilege should arise it can be dealt with in the normal way.
all rights reserved