THE HIGH COURT
			1993 No.  7693P
BETWEEN
JEREMIAH ANTHONY CAHALANE AND CALDON CHEMICAL
COMPANY LIMITED 
			PLAINTIFFS
AND
THE REVENUE COMMISSIONERS AND THE OFFICE OF THE CUSTOMS AND EXCISE, RAYMOND McSHARRY AND THE MINISTER FOR FINANCE (1987-1989)
			DEFENDANTS

JUDGMENT of  Mr. Justice McCracken delivered the 14th day of May 1999.

	This action concerns the withdrawal by the Revenue Commissioners of an authorisation granted by them to the second Plaintiff pursuant to Section 8 of the Finance Act, 1902 to use and store duty-free spirits for the purpose of manufacturing medical and veterinary medicinal products.  The authorisations were withdrawn in November 1987 and there is a complex background to this action, which it is not necessary to go into in detail for the purpose of this application.  It is sufficient to say that, after lengthy investigations, criminal proceedings were instituted by the Director of Public Prosecutions against the first named Plaintiff and others alleging they conspired to cheat and defraud the Revenue Commissioners of excise duty and value added tax by selling the duty-free spirits for human consumption as if the duty had been paid.  Judicial Review proceedings were taken by the first named Plaintiff and he ultimately obtained an Order from the Supreme Court on the 9th March, 1994 prohibiting the criminal proceedings against him.  These proceedings were commenced in 1993, I think shortly after the first named Plaintiff had obtained an Order of Prohibition from the High Court.
	The dispute before me concerns a number of documents which have been disclosed by the Defendants on discovery, but in respect of which they have pleaded privilege.  There is  a large number of such documents, but they can for convenience be divided into two categories.  The first category of documents, being those numbered 88 to 173 inclusive, relate to the proposed prosecution, while the second category relate to investigations carried out by the Customs & Excise Investigation Branch and reports in relation thereto.  Most of the documents long pre-date the issue, or even the threat, of  these proceedings, but there are some documents which undoubtedly contain legal advice obtained, not for the purpose of these proceedings, but for the purpose of the criminal proceedings.
	The issues in this case are similar to those which arose in Breathnach v Ireland (1993) 2 IR 458, which was an action for damages for, inter alia, assault and battery, false imprisonment and malicious prosecution, where the conviction by the Plaintiff of certain offences by the Special Criminal Court was quashed on appeal by the Court of Criminal Appeal.  In that case, the Plaintiff sought discovery of Garda files relating to his prosecution.
	While the present case concerns investigations by the Customs officials rather than by the Gardai, it seems to me that very similar principles would apply to both situations.  Keane J. said at page 472:-
	
	"It is obvious that in every case where the commission of a crime, whether trivial or serious, is suspected, documentary material will be assembled by the Gardai irrespective of whether a prosecution is ever initiated.  The fact that the documents in question may, as in the present case, be submitted by the investigating Gardai to the Director of Public Prosecutions in order to obtain his decision as to whether a prosecution should be instituted could not possibly give that material the same status as, to take an obvious example, a medical report obtained by a Plaintiff in a personal injuries action solely for the purpose of his claim.  If privilege exists in relation to such documents, it can only be because of the other factors referred to by Mr Liddy, of which undoubtedly the most important is the desirability of freedom of communication between the Gardai and the Director of Public Prosecutions.  The extent to which that freedom might be inhibited by the knowledge that the documents furnished to the Director of Public Prosecutions may subsequently be disclosed in court proceedings is clearly a matter which has to be taken into consideration in determining whether the public interest in the particular case requires its production.
	
	In civil proceedings, the desirability of preserving confidentiality in the case of communications between members of the executive has been significantly eroded as a factor proper to be taken into account by the Courts........However, different considerations would appear to apply to communications between the Gardai and the Director of Public Prosecutions, where the public interest in the prevention and prosecution of crime must be given due weight.  It would be clearly unacceptable if in every case where a person was acquitted of a criminal charge, he could, by instituting proceedings for wrongful arrest or malicious prosecution, embark on a fishing expedition through all the files of the Gardai relating to the case.  The circumstances of the particular case must determine, in the light of the constitutional principles to which I have referred, whether an inspection should be undertaken by the Court and, whether, as a result of that inspection, production of any of the documents should be ordered."       

	The present case is not an action for damages for malicious prosecution, rather it arises from the refusal of the first named Defendant to continue to authorise the second named Plaintiff to use duty-free spirits in the course of its business.  It is alleged that the withdrawal of the authorisation effectively closed down the business, and it is further alleged  that the first named Defendant wrongfully removed some of the Plaintiffs stock, and has failed to return it.  Thus, this is not a case where the Plaintiffs are conducting a fishing expedition in the hope that their action will be justified, they have quite clearly stated the cause of action based on admitted withdrawals of the authorisation to the second named Plaintiff.
	At this stage of the proceedings it is not for me to attempt to determine the likelihood of  the Plaintiffs succeeding in these proceedings, but I do have to weigh up the nature of the damage claimed by the Plaintiffs against the undoubted general need for confidentiality in Customs investigations.  In this case the first named Plaintiff is claiming damage to a very basic and constitutional right, the right to earn a livelihood, and in my view that in itself  puts the case in a different category from the Breathnach case.  I have no doubt that the public interest in the administration of justice in cases such as this is of great importance, and for this reason I intend to order discovery of most of the documents which I have inspected.
	There are, however, some documents, largely consisting of  correspondence between Customs officials and the Revenue Solicitor, which, while they contained legal advice at a time before these proceedings were contemplated, nevertheless, such was the overlap between the criminal proceedings and these proceedings, the advice being sought and given directly related to the same issues as are raised in these proceedings and I consider that such advice is privileged and ought not to be disclosed.  Accordingly, I will grant an Order for inspection of the documents listed at Nos. 88 to 226 of the first schedule, second part of the Affidavit of Discovery of 12th July 1996 other than documents nos. 114 to 118 inclusive, 140 and 141, 146, 182, 185 to 190 inclusive and 199 to 201 inclusive.