High Court of Ireland Decisions

BETWEEN/

PLAINTIFFS

DEFENDANTS

Judgment of Mr. Justice Murphy dated the 2^nd day of April, 2004.

By notice of motion, the plaintiffs applied for an order directing the defendants to make discovery on oath of all documentation, computerised information, and photographic material relevant to the matters in question in the proceedings under nine categories in relation to the questions and arrest of the first named plaintiff and emotional suffering and breach duty towards all of the plaintiffs in 1992-3. A statement of claim of 6^th December, 1999 and a defence dated 4^th July, 2001 were duly filed. This notice of motion dated 26^th November, 2003 was heard on 23^rd January, 2004.

The statement of claim, distinguished between the claims in respect of the first named plaintiff and that in respect of all the plaintiffs.

The first named plaintiff claimed damages, including aggravated, exemplary and/or putative damages, for false imprisonment, abuse of the legal process, abuse of power and/or misfeasance of public office, conspiracy, conversion and detinue, slander and breach of his rights under Article 13 of the European Convention on Human Rights.

All of the plaintiffs claimed similar classes of damages for intentional and/or negligent infliction of emotional suffering, negligence, breach of duty, and/or breach of statutory duty and breach of their constitutional rights.

On the 7^th December, 1992, the first named plaintiff discovered his wife lying bound, gagged and fatally injured, having been badly beaten and having received a gunshot wound to the head. He immediately contacted the Garda Síochána. He made available to them a list of all firearms he had in his collection and made a voluntary statement. He has maintained that he was totally innocent of and had no part whatsoever in the brutal murder of his wife.

He pleaded that the Gardaí had been grossly abusive and insulting towards the second named plaintiff, his daughter, who was pregnant. The words complained of were defamatory and were calculated to impute that the first named plaintiff was guilty of offences punishable by imprisonment.

The first named plaintiff pleaded that his reputation was seriously damaged. He was arrested on the 3^rd March, 1993, led out of his home in handcuffs in full view of his neighbours at 7.30 a.m. The Garda Press Office issued statements and press releases to the media to the effect, inter alia, that a man in his mid-fifties had been arrested in connection with the murder. During the course of interviews certain statements were made to him. He was released at midnight on the 4^th March, 1993. The manner in which he was arrested and detained constituted an intentional infliction of emotional suffering and was calculated to break him psychologically and caused him grave emotional distress. It was in breach of his constitutional rights and his rights under the European Convention. The matters were pre-planned, thereby constituting a conspiracy. Privileged communications between him and his solicitor were removed by the Gardaí.

The plaintiffs allege that the first and second named defendants were guilty of negligence and breach of duty and/or breach of statutory duty in or about the management of the investigation into the murder of the plaintiff's wife in proceeding from the outset on the basis that the first named plaintiff was responsible when they knew, or ought to have known, (had proper investigation and/or examination been carried out at the relevant time) that it was not reasonable to do so but rather that he should be eliminated as a suspect. In so proceeding, they thereby failed and neglected to take such steps and/or carry out such procedures, steps and investigations as ought properly to have been taken or carried out in all the circumstances. In stating to the third named plaintiff that they "had the right man", which was defamatory and a deliberate and malicious attempt to falsely convey that the first named plaintiff was responsible for the murder of the third named plaintiff's mother, it was calculated to cause, and did so cause in the third named plaintiff, severe emotional distress and suffering.

A defence was delivered on the 4^th July, 2001, following a notice of motion for judgment in default of defence. The defence admitted some matters awaited proof in relation to others and denied particular allegations in respect of the behaviour of members of the Garda Síochána on the 29^th December, 1992.

It was denied that the alleged innocence of the first named plaintiff, or his having no part in the murder of his wife, were facts that ought reasonably be known to the Gardaí or ought to have been ascertained by them shortly after they commenced their investigation. The Gardaí regarded the first named plaintiff as a suspect in their inquiries into the identity of the person responsible for the death of his wife. That belief was a reasonable one and was based on reasonable grounds.

It was denied that the Garda Press Office issued statements and press releases as alleged or at all. It was denied that members of the Gardaí uttered any of the words set forth in paragraph 20(a) 2(h) of the statement of claim; that Detective Garda Clinton produced photographs of the deceased or that Colonel Bernard Howard visited and was told by the Gardaí that they were prepared to release the first named plaintiff only in the absence of members of the press.

All further matters were denied in relation to the alleged infringement of the plaintiff's rights.

The pleadings having been closed by that defence dated the 4^th July, 2001, a note of intention to proceed was filed on the 6^th March, 2003, followed by the present motion filed on the 26^th November, 2003.

Gerard Charlton, solicitor for the plaintiffs listed the reasons why each of the nine categories of discovery were relevant and necessary to assist the plaintiffs in establishing the contentions outlined in the statement of claim. Voluntary discovery had been sought by letter dated the 11^th June, 2003. Mr. Charlton averred that no co-operation by way of voluntary discovery was forthcoming within the time prescribed by that letter and a number of reminders were sent.

Reasons were given why each category of documents (appended hereto) was required to be discovered. It was verified that the discovery was necessary for disposing fairly of the cause.

Detective Superintendent John Gallagher of the National Bureau of Criminal Investigation, in his affidavit sworn the 21^st January, 2004, regarded the letter requesting, discovery in such wide and sweeping terms, as a trawling exercise as opposed to information relevant or necessary to the issues between the parties. Such request would amount to thousands of pages involving significant cataloguing and would involve the defendants in significant costs and resources. It was not necessary for fairly disposing of the proceedings and was largely not relevant nor in the public interest.

The public interest required the upholding of the confidentiality of such communications and the confidential nature of garda investigations. Detective Inspector Gallagher averred that it is in the public interest in the detection and prosecution of crime that discovery of such documents should not be allowed. The investigation into the death of the victim had not concluded and would remain open indefinitely. The reference to discovery in relation to persons who, in the opinion of the Gardaí, have been or could be involved in criminal and other activities would impinge on their good name if discovery in relation thereto were made.

The principle underlying the right to discovery is that all relevant evidence is not only admissible but is also compellable. Litigants must have an opportunity to be heard to put forward arguments and to place all evidence relative to their claims before the court. Arguments without facts are just as sterile as arguments without legal authority. Lord Hailsham maintained that

'In all cases before them, the courts should insist on parties and witnesses disclosing the truth, the whole truth and nothing but the truth, where this would assist the decision of the matter in dispute (D. v. N.S.P.C.C. (1977) 1 All E.R. 589 at 600)."

Fennell, The Law of Evidence in Ireland (2^nd Edition, 2003) refers to a private interest and a public interest in the disclosure of all relevant evidence. The former, she says, is the function of the litigant's entitlement to prosecute his case, the latter is informed by the public interest in promoting an effective and fair system of justice.

Article 6 of Bunreacht na hÉireann commits the administration of justice solely to the judiciary in the exercise of their constitutional prerogatives. On the basis of the constitutional principle of the separation of powers it falls to the judiciary to decide if the public interest is best served by the production or non-production of documents in the possession or power of the public service. The Supreme Court in Murphy v. Dublin Corporation [1972] I.R. 215 held that any conflict between the public interest in the production of evidence and the public interest in the confidentiality of documents relating to the executive power fall to be decided by the courts.

A balance must be struck between the public interest in the proper administration of justice by making all relevant material available to litigants, and the public interest in not harming society as a whole by releasing highly confidential State information in respect of which public interest immunity is claimed. Each case must be taken on its own merits, and the balancing exercise carried out anew, because it is not only the circumstances in which the document in question came to be produced that may vary from case to case, and the facts of each case to which that document is relevant, but also the need in a given case for the particular document will depend on the other evidence potentially available from other sources.

In Ambiorix Ltd and Others v. Minister for the Environment and Others [1992] I.R. 277 the Supreme Court held that the law relating to executive privilege was correctly stated in Murphy v. Dublin Corporation [1972] I.R. 215.

The essential limitation discovery is that of relevance. The Supreme Court refused discovery of documents in Burke v. Central Independent Television [1994] 2 I.L.R.M. 161, where the claim was for damages for libel allegedly published by the

defendant in a television programme purporting to deal with the activities of a subversive organisation. The basis of the refusal was the constitutional right of individual citizens to the protection of their life and their bodily integrity which must, of necessity, take significant precedence over a right to the protection and vindication of the plaintiff's good name. O'Flaherty J. made the following observations:

"(1) It was neither permissible nor possible for the court at this stage to reach any conclusion as to the truth of the assertions which had been made. The decision of the court had to be based on the assumption that there might be a risk to the citizens who were identified in the relevant documents arising from the communication of those documents to the plaintiffs. Equally the court also had to make the assumption that the plaintiffs were in a position to establish that some or all of the accusations made against them were false and that their capacity to do so, and thereby to protect and vindicate their good name, might be imperilled by the exclusion from discovery and proof in evidence of the documents in respect of which the defendant claimed immunity.

(2) The constitutional rights to life and bodily integrity of necessity took precedence over the right to the protection and vindication of one's good name and the right to have full and untrammelled resort to the courts. (Italics supplied).

(3) The making of an order of discovery on terms that only the lawyers acting for the plaintiffs would have access to the documents was not a procedure which could be adopted by the court. In order to avoid a possible risk to citizens, the documents had to be kept from communication to the plaintiffs and from admission in evidence in a public court. If the plaintiffs' lawyers had access to the documents, they might find them to have the potential to be significant and weighty tools in relation to the cross-examination of witnesses called by the defendant, but find themselves unable to use the documents or explain their failure to do so to their own clients. This would constitute an undesirable breach of the duty which counsel owe to their clients and a breach of the proper trust which should exist between a lawyer and a client.

(4) It would not be consistent with the requirements of justice to make an order merely providing for immunity against the discovery or proof in evidence of the documents."

The ultimate decision in relation to the issue of disclosure or non-disclosure of documentation and proceedings before the courts must lie with the courts themselves, as was emphasised by the Supreme Court in Murphy v. Corporation of Dublin [1972] I.R. 215 and Ambiorax Ltd. v. Minister for the Environment [1992] 1 I.R. 272.

O'Hanlon J., in O'Brien v. Ireland, Attorney General and Minister for Defence (High Court, Unreported, 26^th August, 1994) examined the aforementioned judgments and noted that the statement of leaving it to the ultimate decision of the courts was expressed in absolute terms. He did not consider:

"that either decision was intended to convey that the power of the legislature to intervene and confer the privilege of exemption from production and specified conferring of a document or other evidence was curtailed or restricted in any way, save insofar as any legislation enacted must not conflict with the overriding provisions of the Constitution."

Having regard to statutory privilege and privilege conferred by reason of an oath of secrecy in relation to banking matters, it appeared to him that:

"That a complete prohibition on disclosure exists in such cases without the courts being left with any scope to decide where necessary between conflicting claims based on the public interest between compelling production of documents and exempting them from production."

In A.G. v. (Beef Tribunal) [1993] I.L.R.M. 82, the Supreme Court considered that privilege from disclosure of contents and details of discussion at meetings of the Government, derived, of necessity, from the Constitution.

In Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320, the High Court (Geoghegan J.), having referred to Murphy and Ambiorax stated:

"The common factor in these cases was a rejection of any kind of class or category privilege. Underlying them is the public interest in the administration of justice. The exclusion of admissible and relevant evidence is in general contrary to that public interest. It is for the courts to decide on the merits of appeal privilege in any particular case. But in no Irish case has it ever been held that there are no circumstances where the general public's interest in the non-exclusion of admissible and relevant evidence cannot be overridden by a conflicting public interest in a particular case in favour of non-disclosure." (at 325)

In the same year, both public interest and legal professional privilege were examined in Breathnach v. Ireland (No. 3) [1993] 2 I.R. 458. The plaintiff claimed damages for assault and battery and false imprisonment. He had been tried and convicted in the Special Criminal Court. His appeal to the Supreme Court was upheld and he sued the State and others for, inter alia, damages for false imprisonment and for failure to vindicate his constitutional right.

In the course of the civil action, the plaintiff brought a motion for discovery pursuant to Order 31, rule 29 of the Rules of the Superior Courts, 1986, against the D.P.P. who was a notice party to the proceedings. The application was for discovery of all records relating to his conviction which passed between certain of the defendants, being members of the Garda Síochána and other Gardaí, which were in the power or possession of the D.P.P.

Privilege was claimed for certain documents which the court rejected on the grounds that as a class they were not immune from discovery. Privilege was also claimed for other documents, some of which had been assembled as part of the original investigation of the alleged offence in the criminal case, and also for a report sent by an investigating garda to the D.P.P. seeking his direction as to whether criminal prosecution should be brought against the plaintiff. The grounds relied upon in claiming privilege were:

•    That the documents had been prepared by Gardai in the belief that they would remain confidential as this was necessary if the D.P.P. were to effectively carry out the statutory requirements of his office;

•    That the documents had come into existence in contemplation of litigation.

In considering his approach to the case, Keane J., at 469-70, said that, the High Court ordered the D.P.P. to discover "all records relating to communications between (members of the Gardaí) and the D.P.P.

While there would appear to be a detailed itemisation of documents within each category it is not clear whether and to what extent these are relevant. While the totality of documents in an incident room may be relevant to a criminal prosecution it does not follow, despite the extensive claims made by the plaintiffs in this case, that those documents are relevant in a civil claim.

Neither the plaintiffs nor the court can review a police investigation which is an executive function other than by way of judicial review.

Superintendent Gallagher claim confidentiality and public interest immunity. The investigation has not concluded.

The present application arises in the context of a civil claim. There is no duty such as there is on the prosecution to proffer to make available all material evidence to a defendant. While Discovery is not available in criminal proceedings, People (D.P.P.) v. Sweeney (Supreme Court, unreported, 9^th October, 2001) a plaintiff in a civil matter is entitled to apply for an order pursuant to Order 31 rule 12 by specifying the precise categories of documents in respect of which discovery is sought. An applicant must verify that such discovery is necessary for disposing fairly of the cause or matter or for saving costs and must furnish the reasons why each category of documents is required to be discovered.

Subject to this, the plaintiffs have a right to discovery of documents relevant to their claim. The court must balance that right with the public interest in not disclosing documents in respect of which public interest immunity and privilege is claimed.

The following principles emerge from the case law referred to above.

The court should assess relevant documents in respect of which public interest immunity executive privilege is claimed.

Information supplied in confidence to the Gardaí should not in general be disclosed.

Any material the disclosure of which would be of assistance to criminals by revealing method of detention or combating crime should not be disclosed.

Other documentation in respect of which public interest or executive privilege is not claimed but which are considered to be privileged should be made available to the plaintiffs solicitors on the solicitors undertaking to provide copies to counsel briefed but not to permit these documents to be inspected by any other person and to return originals or copies to the Gardaí on the conclusion of the litigation.

The court must be aware of the potential of the disclosure of the documents in categories 1 to 4 hampering the criminal investigation into the murder of Mrs. Livingstone and the possible prejudice of a prosecution.

According in relation to categories 1 to 4, which range from the generality of documents held to a wide range of particulars from the date of death of Mrs. Livingstone to the arrest of the applicant, the court should assess their relevance.

Council should agree and net the issues for the court having regard to relevance practicality and costs.

Category 5 relates to media releases and briefings. The defendants have indicated that they consent to an order for discovery within this category under terms limited as follows:

All documentation relating to any media releases and any media briefings made by or on behalf of An Garda Síochána concerning or which could be perceived as referring to any of the plaintiffs.

Category 6 comprises:

All material relating to any media releases and briefings to include copies thereof, in particular with regard to the episode of the RTE programme "Prime Time" and all instructions and directions given in relation thereto, to include for the avoidance of doubt, all diary entries, notes, memoranda, correspondence or communications whatever, whether between members of An Garda Síochána in relation thereto, or between members of An Garda Síochána and RTE in relation thereto, or between members of An Garda Síochána and/or RTE and members of the public in relation thereto.

Category 6 is unduly extensive, it refers to the broadcast following on the subsequent investigation into the murder, carried out by the second Garda investigation team. It would seem sufficient that it should be limited to category 5; all media releases and briefings between members of the Gardaí and the media. There are no reasons given as to why the discovery should be so extensive as to include anything further.

The applicant referred to his public exoneration and requited documents which would "show the basis for the conclusions reached by the second investigation team as distinct from the manner in which the first investigation team conducted themselves and may assist in establishing the plaintiff's contention that the first team acted without due care and should have eliminated the first named plaintiff as a suspect in all the circumstances." It seems that these documents, if they exist, fall within the category of public interest immunity.

Category 7 is all or any custody records in respect of the first named plaintiff.

Category 8 comprises copies of all documentation removed from the first named plaintiff's home or his car or that of Grace Livingstone and/or from his place of business, to include any communications between himself and his solicitor, together with all or any inventory of all items whatsoever removed from the home and place of work of the first named plaintiff.

Category 9 relates to matters which were sent in contemplation of litigation and would seem to me to be clearly privileged. It does not seem that there is any necessity to itemise these in an affidavit of discovery.

The defendants also consent to discovery under categories 7 and 8 but object to category 9 by reason of the fact that it is not in the public interest in that it may contain vital information in relation to the weight to be attached to a particular witness or item of evidence between the Garda Síochána and the D.P.P. As the investigation remains open, such disclosure could hinder the investigation or subsequent prosecution. It is detrimental to the public interest in the administration of justice. Moreover, documentation sought under category 9 arises in the context of giving and/or receiving legal advice and/or privilege from disclosure.

The court will make an order for discovery of all documents relating to any media releases and media briefings made by or on behalf of An Garda Síochána concerning or which could be perceived as referring to any of the plaintiffs (category 5), discovery in respect of category 6, and discovery in relation to categories 7 and 8.

Indeed, there is every good reason why the defendants, must establish in the relevance of documents with the advice of their legal team, cannot make such preliminary determination, even in a broad sense. The defendants have made such a determination with regard to categories 5, 7 and 8.

1. The Garda Investigation file or files into the murder of Grace Livingstone to include all records, notes and memoranda, statements, howsoever arising, correspondence, electronic material, films, photographs, maps and/or results of any examinations and/or reconstructions and other such material generated in relation thereto to encompass, for the avoidance of doubt, all or any such files compiled and brought into existence by both the First and Second Investigation teams appointed in respect of the murder of Grace Livingstone.

2. In particular, but without prejudice to the generality of the foregoing:-

(a) All or any reports of members of An Garda Síochána involved in and/or relating to the first investigation into the murder of Grace Livingstone together with copies of all material referred to therein;

(b) All or any reports of members of An Garda Síochána involved in or relating to the second investigation into the murder of Grace Livingstone together with copies of all material referred to therein.

(c) The report or reports compiled by Senior Garda Officials with regard to an investigation into the murder of Grace Livingstone to include, in particular the report or reports of Chief Superintendent Kevin Carty (as he was, now Assistant Commissioner) and Superintendent Tom Connolly together with copies of all material therein referred to.

(d) All material generated by the Gardaí in relation to a meeting between Chief Superintendent Culhane and his assistant and the first named Plaintiff and his solicitor on the 19^th day of August 1993 at Santry Garda Station.

(e) All reports, statements, notes memoranda, correspondence, electronic material, film, photographs, maps and/or results and other such material generated by:

a. The Ballistics Section

b. The Forensic Science Laboratory;

c. Fingerprints Section in relation to all the tape which bound the victim, Grace Livingstone, or to the firearm used in her murder,

d. All such material generated by the Pathologist Professor Harbison and his staff or any other pathologist and their staff involved in the investigation into the murder of Grace Livingstone.

e. All such material generated as a result of any examination of or carried out at 37 The Moorings, Malahide in the County of Dublin to include any reconstruction carried out thereat.

(f) The Jobs Book in relation to any investigation into the murder of Grace Livingstone.

(g) Notes and/or reports or other material of all collators generated during the course of all or any investigations into the murder of Grace Livingstone.

(h) All reports from Dr. Moodley and all attendances by members of An Garda Síochána on him to include all notebook or diary entries, memoranda or any such material.

(i) Copies of all notes, notebook and/or diary entries of all members' interviews with all persons interviewed in connection with any investigation into the murder of Grace Livingstone.

(j) Copies of all statements taken during the course of the investigations

aforesaid together with the index books in relation thereto.

3. In particular with regard to the two foregoing paragraphs and for the avoidance of doubt, copies of

(a) All statements taken from any of the Plaintiffs in connection with the investigation or investigations together with all or any notes, diaries or notebook entries of members of An Garda Síochána relation thereto;

(b) All statements taken from or notes, diary or notebook entries with regard to any interview with Colonel Bernard Howard;

(c) All statements taken from or notes or diary or notebook entries or details of any criminal records in the State or abroad in respect of interviews with any door to door collectors in the area of the Plaintiff's home on the day of or the week preceding the murder including in particular collectors for the Irish Epilepsy Association at the relevant time;

(d) Reports, statements, notes, diary or notebook entries of the first two members of An Garda Síochána to arrive at the scene of the murder on the 7th December, 1992, namely Garda F. Gunne and Garda Catherine Moran;

(e) Any statement, notes, diary or notebook entries in relation to any interview with Mrs. Margaret Murphy who arrived at the scene on the night of the murder;

(f) Statement of Mrs. Watchthorn or any notes, diary or notebook entries in relation to any interview or interviews by members of An Garda Síochána of her:

(g) Statements of all witnesses who heard a loud noise on the afternoon of the murder together with the notes of any Gardaí on each interview or diary entries in relation thereto;

(h) Statement of Philip McGivney the landscape gardener or tree surgeon who was in The Moorings on the afternoon of the murder together with copies of all the notes of any Gardaí of any interviews or diary entries in relation thereto;

(i) Statements of the schoolgirls in respect of a young man whom they saw in The Moorings or its environs on the afternoon of the date of the murder together with the notes of all members of all interviews or the diary entries of all members in respect of the said schoolgirls.

(j) All reports on the investigations of suspicious persons or strangers seen in the vicinity of the crime on that day.

(k) Statement of the man in the car park who saw a youth approach his car which was of a reddish or orange colour and parked in the car park and drive same therefrom together with any attendances or memos or diary entries, with particular reference to the registration particularly of the car or of its description.

(l) Statement of the man who observed the youth driving on the public highway and at a roundabout and followed the car for a considerable distance together with any reports, maps or memos or diary entries in respect thereof;

(m) Statement of any other person who saw the youth driving the car whether on the road or at the roundabout together with any attendances or memos or diary entries.

(n) Copies of all material generated within or outside the State to trace or locate the said red or orange coloured car and copies of the results.

(o) Statement of Art O'Connor and/or of his wife together with copies of all interviews or memos or diary entries of any member of An Garda Síochána in respect thereof;

(p) Statements of persons at the Defendant's place of employment at the Revenue Commissioners together with the notes and diary entries of all members in respect of such interviews or searches thereat.

(q) Copies of all (Garda questionnaires completed or incomplete, issued in respect of the murder, and any memoranda, interviews, responses or diary entries in respect of same

(r) All records whatever relating to the ambulance or emergency services at the scene of the murder of Grace Livingstone at Number 37 The Moorings, Malahide on the 7th December, 1992.

(s) All material generated by the Gardaí to trace or identify the source or manufacturer or vendor of the tape used to bind the victim Grace Livingstone.

(t) All material generated between the Gardaí and the first named Plaintiff's employer in relation to the murder of Grace Livingstone.