High Court of Ireland Decisions

1. In an affidavit of discovery filed on behalf of the Defendants objection has been made to the production of the several documents set forth in the second part of the schedule to the affidavit. This is a Motion seeking an Order directing that the Defendants make full and better discovery of those documents. In practice the Plaintiff is requesting the Court to overrule the objection to production by the Defendants. The action arises out of the now famous events surrounding the requested extradition to Northern Ireland of a Father Brendan Smyth then accused of committing sexual offences with young persons in Northern Ireland to which he has since pleaded guilty in the Courts of that jurisdiction and been sentenced to prison. The Plaintiff was one of the victims of these offences. She claims that there was negligent delay in the Irish Attorney General's Office in the processing of the extradition request and that as a consequence she sustained personal injury (including nervous shock and mental distress). In this civil action she has sought to recover damages for the alleged injuries on the grounds of negligence, breach of statutory duty, breach of duty and breach of constitutional rights. The documents which the State is objecting to produce are listed as follows:-

2. In an affidavit sworn in this motion, Mr. Padraig Brennan, Solicitor for the Plaintiff explains why he believes the above documents are relevant to the claim. It is apparently part of the Plaintiff's case that the delay was unwarranted in that inter alia Father Brendan Smyth had confessed to at least some of the offences in respect of which the extradition was sought. That being an essential part of the Plaintiff's case, Mr. Brennan believes that the statement of facts and statement of law of the Attorney General of Northern Ireland are clearly relevant to the Plaintiff's claim and he goes on to say that the same holds true of the working notes of Matthew Russell, the then Senior Legal Assistant in the Attorney General's Office. I do not think that it is in dispute that in the ordinary way these documents and the other documents listed in the schedule would be material to the matters in issue and would have to be produced but the real issue between the parties is whether on grounds of public interest the documents ought not in fact be produced.

3. In an affidavit filed on behalf of the Defendants in this motion, Mr. Liam O'Daly, Third Legal Assistant in the office of the Attorney General, refers to and reiterates the stated grounds of objection, namely, that such documents were supplied to the office of the Irish Attorney General by the Attorney General for the United Kingdom and Northern Ireland on a confidential basis for the limited purpose of allowing the Irish Attorney General to decide whether to back warrants in an extradition case. As such they are part of communications between the offices of the Attorneys General of the two States pursuant to extradition arrangements made between those two States. Mr. O'Daly elaborates the grounds of objection by making the following specific points:-

4. Mr. O'Daly makes clear that privilege would not necessarily attach to the workings and markings of Mr. Russell and, as I understand it, there is no real objection to the production of these if it can in practice be done in some way that does not disclose the contents of the documents themselves.

5. Before considering the validity or otherwise of the objection, I think it relevant to refer to the pleadings. In the statement of claim it is alleged that the second-named Defendant, the Attorney General, owed the Plaintiff a duty of care and/or a constitutional obligation to consider the extradition requests and speedily to process same in order to ensure that Father Smyth was quickly brought to justice and it is further alleged that in breach of this alleged duty of care and alleged constitutional obligation and duty, the Attorney General wrongfully and without lawful excuse failed, neglected and refused to endorse the warrants for execution within the State. The statement of claim goes on to allege that a similar duty was imposed on the Attorney General by reason of the provisions of the Extradition Acts. Paragraph 1 of the defence delivered on behalf of the Defendants reads as follows:-

6. The case is a most unusual one and there must be an arguable case that the Defendants are entitled to succeed on the grounds set out in paragraph 1 of their defence. I am informed by Counsel that it is intended to apply for a separate and preliminary issue to be tried as to whether the statement of claim discloses a cause of action. The Plaintiff's claim to production of the controversial documents is of course based on the assumption that she has a good cause of action. That being so, it would be my view that even if the Plaintiff is entitled to production of the controversial documents, assuming there is a proper cause of action, the Court ought not, as a matter of discretion, order such production unless and until the preliminary issue has been heard and determined in favour of the Plaintiff. What I will be saying in the rest of this judgment is therefore subject to that proviso.

7. The law relating to the normal non-production of alleged confidential documents is now well established by the well known decisions of the Supreme Court in Murphy -v- Corporation of Dublin 1972 I.R. 215 and Ambiorix Limited -v- Minister for the Environment 1992 1 I.R. 277. But neither of those cases treat of communications between sovereign states and I think I should first deal with the question whether different and special considerations apply in relation to such documents. There does not appear to be any Irish case law to assist me on this matter but the English case of Buttes Gas and Oil Company -v- Hammer 1981 1 Q.B. 233 is of considerable assistance. In that case the English Court of Appeal held that first of all the only public interest which was to be considered was the interest of the public within the U.K. Secondly, that the Court would recognise a public interest of the United Kingdom in refusing to order disclosure of documents addressed to or emanating directly or indirectly from the ruler of a foreign state concerned with international disputes over territorial boundaries and the sovereign rights of independent states, which had been passed to a party to private litigation under the seal of confidence; nor should an English Court be seen to be forcing the disclosure of such documents for the ostensible purpose of pronouncing, albeit indirectly, on a politically sensitive territorial dispute between foreign sovereign states. It is perfectly clear from the judgments in that case that the Court rejected a much wider proposition suggested in a letter by the Foreign Office, though not argued in the Court, that there be an absolute public interest privilege attaching to confidential communications between states. The proposition was formulated by the then head of the U.K. Foreign and Commonwealth Office as follows:-

8. Lord Denning rather scathingly said that he would not himself presubscribe that principle or post-subscribe to it. It is clear that the other two Judges on the Court did not accept such a wide principle either. In making its decision in the particular case therefore, the Court balanced the public interest in maintaining the confidentiality in the particular documents in question against the public interest that in the administration of justice the Courts should have the fullest possible access to all relevant material. Furthermore, the Judges reiterated the general principle that confidentiality per se is not a ground of objection. The question is, is there a public interest in maintaining that confidentiality and, if so, does that particular public interest outweigh the public interest in the Court having access to the full truth for the purposes of administrating justice.

9. With regard to the provisions of the Irish Constitution there is an even stronger case in this jurisdiction, in my view, for not countenancing any form of absolute privilege in relation to communications passing between sovereign states. The principles as enunciated in Murphy -v- Corporation of Dublin and Ambiorix should be applied in considering whether an objection to production of such documents should be sustained in the same manner as in the case of any other form of document.

10. If therefore I am satisfied that there is a genuine issue of delay giving rise to a stateable and pleaded cause of action in this case, I will order production of the documents. But an order for such production is a discretionary order and I do not intend to exercise that discretion until I have studied the outcome of any preliminary issues relating to liability which may be tried. I will discuss with Counsel what further procedures should now be adopted.