[2004] IEHC 364
THE  HIGH  COURT

2001/7119P

RICHARD GAMBLE

PLAINTIFF

AND

THE  GARDA  SIOCHANA  COMPLAINTS  BOARD

RAY BARRY,  IRELAND  AND  THE  ATTORNEY  GENERAL

DEFENDANTS

Judgment of Finnegan P. delivered on the 17th day of November 2004

On making discovery Ray Barry on behalf of the Second, Third and Fourth Named Defendants and Declan O’Dalaigh on behalf of the First Named Defendant claimed privilege in respect of certain documents.  The Plaintiff now seeks further and better discovery in relation to those documents.  It was agreed between the parties that I should consider the documents in respect of which privilege is claimed and determine whether they relate to the issues in this action and if so whether they attract privilege either public interest privilege or legal professional privilege.  

In relation to the two documents in respect of which privilege is claimed by Ray Barry each post dates the institution of these proceedings and came into existence with a view to defending the same.  They are entitled to legal professional privilege.

I have also considered the documents in respect of which privilege is claimed by Declan O’Dalaigh.  Of these documents I am satisfied that the following should be discovered.

1.	Documents comprised at Document 68 namely
	(i)	complaint of David Evans dated 3rd November 1998,

2.	Documents comprised at Document 72 namely
(i)	letter dated 18th June 1999 Sergeant Fergal Foley to Superintendent Ballyfermot,
(ii)	letter Plaintiff to Sergeant in Charge Rathcoole undated with statements enclosed with the same.

3.	Documents comprised at Document 83 namely
(i)	note for information of Declan Hogan dated 25th November 1999 the fourth paragraph thereof only.  The first three paragraphs to be redacted.

4.	Documents comprised at Document 84 namely
	(i)	report of Inspector Philip King dated  22nd March 1999 to the Garda
Siochana Complaints Board paragraphs 12.1, 13.1 and 13.10 only the remainder of the document to be redacted.

5.	Documents comprised at Document 85 namely
	(i)	the documents to be discovered in their entirety.

6.	Documents comprised at Document 96 namely
(i)	letter dated 5th January 2001 Assistant Commissioner M.F. Murphy to Garda Siochana Complaints Board extract only third paragraph on page 2 the remainder to be redacted,

(ii)	statement of David Evans dated 24th October 2000,

(iii)	letter 20th December 2000 Superintendent Liam Mayock to Chief Superintendent DMR,

(iv)	letter 25th October 2000 Superintendent Liam Mayock to Chief Superintendent DMR

In directing discovery as aforesaid I am mindful of the provisions of the Garda Siochana (Complaints) Act 1986 section 12 and I have had regard to the decision of the Supreme Court in Derek Carlton –v- Director of Public Prosecutions & Others 2000 3 I.R. 269 and the obiter statements therein of Geoghegan J.  While it is arguable that the discovery which I have directed includes documents to which section 12 applies or in respect of which public interest privilege could legitimately be claimed I am satisfied that I must balance this against the interests of justice and it is upon having undertaken this exercise that I have directed discovery as set out above.  Some of the documents could be obtained by third party discovery in any event but with a view to avoiding delay and expense I have nonetheless decided to order that they be discovered.
I propose reserving the costs of this motion to the hearing of the action.

Approved by Finnegan P.