[1997 No. 2849P]
THE HIGH COURT
Between:
Roisin McConnell
Plaintiff
-and-

The Commissioner of an Garda Síochána, the Minister for Justice, Equality and Law Reform, IRELAND and the Attorney General.
Defendants

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 31st January, 2003.

	In these proceedings the plaintiff seeks damages for personal injuries, loss and damage alleged to have been suffered by the plaintiff as a result of behaviour alleged to have been engaged in by members of an Garda Síochána in detaining the plaintiff pursuant to s. 4 of the Criminal Justice Act, 1984 and in the manner of same whereby it is alleged that the plaintiff was subjected to intimidation and terrorising tactics and appalling methods of interrogation at the time. It is further pleaded that the plaintiff was assaulted on the occasion in question.
 The events are alleged to have taken place on 4th December 1996 and these proceedings were instituted on the 11th December 1997.  It is pleaded that the plaintiff was arrested and taken to Letterkenny Garda Station and detained there pursuant to the provisions of s. 4 of the Criminal Justice Act, 1984 and questioned on what is alleged to have been unfounded suspicion of being an accessory after the fact to murder.
Particulars were included in the amended Statement of Claim including a plea of conspiracy to pervert the course of justice.  Other pleas of conspiracy are pleaded against the defendants. 
	There have been several interlocutory motions in the course of these proceedings and the Statement of Claim which was initially delivered on the 2nd March, 1999 was most recently amended in June 2002.pursuant to an order of this court made on the 4th June, 2002.  Subsequent thereto a notice of particulars was raised and these were replied to on the 8th July, 2002.
	The action came before Kearns J. on a number of occasions for the purpose of case management and it appears that he directed that the plaintiff give details as to what allegations of conspiracy were being pursued by her.  The defendants sought further and better particulars by letter of the 28th August, 2002 and in replies thereto it was indicated that the plaintiff was not the victim of any conspiracy but it was alleged that there was conspiracy against other persons.
	On the 5th April, 2002, an order was made by this Court (Abbott J.) on an application made ex parte that subpoenae duces tecum do issue to the defendant Commissioner, the defendant Minister and in addition thereto to the Minister for Social, Community and Family Affairs, Detective Chief Superintendent Tadhg Foley and the State Solicitor for Donegal Mr. Ciarán F. MacLochlainn.
The subpoena served on the defendant Minister required him to produce sixteen categories of documents of a very wide nature.  That served on the Minister for Social, Community and Family Affairs required the Minister to give evidence on behalf of the plaintiff and to produce “all records of attendances by the plaintiff on servants or agents of the Minister.”  That served on the Commissioner required him to give evidence and produce up to 31 categories of documentation of a very wide nature.  The subpoena served on the Detective Chief Superintendent required him to give evidence on behalf of the plaintiff and the production of an original statement taken from a third party.  That served on the State Solicitor required him to give evidence on behalf of the plaintiff and to produce “all records of communications between you and the Director of Public Prosecutions and the Garda Authorities.”
The matter comes before this court pursuant to a notice of motion on behalf of the Defendants to quash each of the five subpoenae duces tecum.  The application is grounded upon an affidavit of Mary Reynolds who is a solicitor in the office of the Chief State Solicitor who states that the extent and volume of the documentation sought in the subpoenae is voluminous and she refers to an affidavit of April, 2002, used to ground an earlier application for an adjournment made at the time of the granting of the subpoenae. Ms. Reynolds says that, through her counsel, the plaintiff had previously indicated that she would not be seeking discovery but she claims that the service of the subpoenae amounts to what she describes as “discovery through the back door” which, it is contended, is an impermissible route.  It is furthermore claimed that much of the documentation sought to be produced is privileged. It is contended that some of the documentation sought is of a sensitive nature as it raises security implications.
Following upon the issue of the defendants’ motion, a letter dated the 29th November, 2002, was sent by the plaintiff’s solicitors to the Chief State Solicitor indicating that the list of documentation now sought has been substantially reduced. fourteen categories of documents are sought from the Garda Commissioner. Three categories of documents are sought from the defendant Minister. 
It appears that on the 1st November 2002, Kearns J. directed the plaintiff’s solicitors to write to the defendants’ solicitor indicating documentation sought by way of voluntary discovery. 
It is submitted by counsel for the defendants, Mr. Paul O’Neill of counsel that there is no authority in point.  It is submitted on the basis of the history of this case that this court should set aside the subpoenae duces tecum and await the resolution of the plaintiff’s request for discovery in line with the order of this Court made on the 1st November, 2002, that the plaintiff, within seven days of that date, do write to the Chief State Solicitor on behalf of the defendants with a complete list of documents required for discovery.
It appears that, but for the fact that Kearns J. was on circuit at the time when this matter came before me on the 16th December, 2002, the motion before me would have been moved before him as he is familiar with this case.
On behalf of the plaintiff, Mr. Giblin S.C. indicates that, from the point of view of the plaintiff, the matter is urgent as her psychiatrist has indicated that it is in her interest to have these proceedings dealt with speedily.
Counsel says that he seeks a legible copy of the custody record of the plaintiff’s detention. Counsel did not refer this court to any authority on the issue of the setting aside of a subpoena duces tecum.
Conclusion:
	I am satisfied that the court in granting an order for a subpoena duces tecum should have material before it showing that the documents sought to be produced are relevant to the claim being made. In Fitzpatrick v. Wymes [1976] I.R. 301, Walsh J stated, inter alia, at page 311 of the report:
“No person can be a witness unless his evidence is relevant and admissible.  As a summons to attend the hearing involves a liability of imprisonment if the person served does not attend, it is not unreasonable and does not create any injustice that a prospective witness should not be compelled to attend the hearing unless his evidence is material to the proceedings.  The fact that in most, if not all, court proceedings witnesses may be summoned without that precondition does not give a litigant a fundamental right to do so. In my view, the objection taken at the tribunal to giving any indication of the materiality of the witness sought to be ordered to attend was misconceived in law, and the regulation which required that to be done was not bad for violating any constitutional or other fundamental right.”
	It is clear from a reading of the order of Abbott J. that there was no affidavit filed grounding the application for the subpoenae in the instant case and that the application for same was made on the submissions of counsel and on the proposed orders sought.  
Insofar as this application is based upon an assertion that the extent and volume of the documentation sought to be produced by service of the subpoenae duces tecum are oppressive having regard to the time allowed in the subpoenae, and that they are an attempt to obtain discovery by an impermissible route and constitute an abuse of process, I am of the view that there is force in these submissions.  It is clear that the issue of the relevance of the documentation is central to the application and I am not satisfied that the plaintiff has shown the relevance of the large volume of documentation sought.  While Fitzpatrick v. Wymes  was based upon the nature of the particular proceedings which were disciplinary proceedings taken under the terms of the Dublin Police Act, 1924, I am satisfied that the portion of the judgment of Walsh J. quoted above, supports the case being made by the defendants.
While the motion before this court is brought by the defendants, I am satisfied that if persons other than the defendants are the subject matter of subpoenae that the motion to set aside the High Court order should have been taken in their names insofar as the order of the High Court pertained to them.  However, no particular issue has been made of this fact in this application.
While it appears that an application for a subpoena duces tecum in England is made on notice to the witness, who may object thereto, the situation in Ireland is different and O. 63 r.1 (26) of the Rules of the Superior Courts indicates that an order for the issue of a subpoena under O. 39 r.30 of the Rules may be made ex parte.  O.39 r.30 indicates that no subpoena shall issue for the production of any record in the custody of an officer of the State, without the order of the Court.
	Steele v. Savory [1891] W.N. 1950++ is authority for the proposition that the court will set aside a subpoena duces tecum which is oppressive, e.g. which relates to documents discovery of which has been refused by the Court. In that case the court held the subpoena to be oppressive and an abuse of the process of the Court. The Court of Appeal had previously refused to order discovery of many of the documents which were subsequently required to be produced under the subpoena at issue, on the ground that there was a preliminary point to be tried to which the documents were not relevant.  The court upheld the applicant’s entitlement to come to Court to have the subpoena discharged.  
While the Court in the instant case has not adjudicated on the issue of discovery other than to direct that the plaintiff should indicate to the defendants what documents are required, I am satisfied that in the circumstances of the instant case the subpoenae are in general oppressive in their terms and I believe that they should await the outcome of discovery.  I am also satisfied that the plaintiff should indicate how the documents sought from the State Solicitor are relevant as it is clear that they are in a category in respect of which a claim of privilege would normally be allowed.
	In conclusion, I propose acceding to the application to set aside the order made ex parte on the 6th April, 2002, and the subpoenae duces tecum at issue.