Ambiorex Ltd v Min Environment
| Jurisdiction | Ireland |
| Judge | FINLAY C.J.,McCarthy J. |
| Judgment Date | 23 July 1991 |
| Neutral Citation | [1991] IESC 3 |
| Docket Number | 163/91 |
| Court | Supreme Court |
| Date | 23 July 1991 |
[1991] IESC 3
THE SUPREME COURT
Finlay C.J.
Hederman J.
McCarthy J.
O'Flaherty J.
Egan J.
BETWEEN
and
Citations:
MURPHY V DUBLIN CORPORATION 1972 IR 215
CONWAY V RIMMER 1967 2 AER 1260
BURMAH OIL V BANK OF ENGLAND 1979 3 AER 700
EVANS V CHIEF CONSTABLE OF SURREY 1989 2 AER 594
URBAN RENEWAL ACT 1986 S6(2)
O'KEEFFE V AN BORD PLEANALA UNREP SUPREME 15.2.91 1991/5/1137
RSC O.31 r12
FOLENS V MIN FOR EDUCATION 1981 ILRM 21
HUNT V ROSCOMMON VEC UNREP HIGH 1.5.81
INCORPORATED LAW SOCIETY V MIN FOR JUSTICE 1987 ILRM 42
PMPS V PMPA UNREP HIGH 31.10.89 1991/7/1580
AHERN V MIN FOR INDUSTRY & COMMERCE 1990 1 IR 55
DUNCAN V CAMMELL LAIRD & CO LTD 1942 AC 624
AG V SIMPSON 1959 IR 105
O'LEARY V MIN FOR INDUSTRY & COMMERCE & ORS 1956 IR 676
QUINN, STATE V RYAN & ORS 1965 IR 70
AIR CANADA V SECRETARY OF STATE 1983 1 AER 161, 190
O'KELLY, IN RE 108 ILTR 97
LANYON PROPERTY LTD V COMMONWEALTH 1972 129 CLR 650
SANKEY V WHITLAM 1978 21 ALR 505
AUSTRALIAN NATIONAL AIRLINES COMMISSION V COMMONWEALTH 1975 132 CLR 582
US V NIXON 1973 418 US 1039
RUSSELL, A PRIVILEGE OF THE STATE 1967 2 IJNS 88
Synopsis:
CONSTITUTION
Courts
Administration of justice - Judicial function - Action - Evidence - Procurement - Discovery of documents - Production of discovered documents - Privilege claimed by Executive - Conflict of public interests - Conflict to be resolved by the Courts - (163/91 - Supreme Court - 23/7/91) - [1992] 1 I.R. 277 1992 ILRM 209
|Ambiorix Ltd. v. Minister for the Environment|
EVIDENCE
Procurement
Courts - Inherent power - Exercise - Documents - Discovery - Production - Objection - Claim of Executive privilege - Conflict of public interests - Conflict to be resolved by the Courts - (163/91 - Supreme Court - 23/7/91) - [1992] 1 I.R. 277 1992 ILRM 209
|Ambiorix Ltd. v. Minister for the Environment|
MINISTER OF STATE
Litigation
Documents - Discovery - Production - Objection - Claim of Executive privilege - Conflict of public interests - Conflict to be resolved by the courts - (163/91 - Supreme Court - 23/7/91)
|Ambiorix Ltd. v. Minister for the Environment|
PRACTICE
Documents
Discovery - Production - Objection - Privilege - Claim of Executive - Public interest - Memoranda prepared for use of Ministers of State - Confidentiality of Ministerial communications - Constitution - Separation of powers - Administration of justice - Function of the Courts - Rules of the Superior Courts, 1986, order 31, r. 12 - Urban Renewal Act, 1986, s. 6 - (163/91 - Supreme Court - 23/7/91) - [1992] 1 I.R. 277 - [1992] ILRM 209
|Ambiorix Ltd. v. Minister for the Environment|
JUDGMENT delivered on the 23rd day of July1991by FINLAY C.J. [Hederman J. conc., O'Flaherty J. and Egan J. agr.]
This is an appeal brought by the first four named Defendants against the order of the High Court made the 10th day of May 1991 by Lardner J. disallowing a claim made by the Defendants upon an order for further and better discovery of privilege in respect of certain scheduleddocuments.
The real issue which arose in the case is contained in Ground 6 of the Grounds of Appeal by liberty of the Court, inserted as an additional ground in an amended Notice of Appeal. That ground reads asfollows:
"The learned Judge misdirected himself in ordering the discovery and inspection of documents which are memoranda for Government and other Cabinet documents the discovery of which is contrary to the necessary requirements of confidentiality of Cabinet, Government and Ministerial communications and discussions and which could prejudice the confidentiality and the collective responsibility of theGovernment."
In effect, the issue thus raised had not been argued before Lardner J. In the High Court by reason of the fact that the contentions in support of this ground sought to be made on behalf of the Appellants included a submission to this Court that this Court should reconsider its decision in Murphy v. The Dublin Corporation 1972 I.R., and should conclude that theprinciples laid down in that decision were in part, at least, inerror.
On behalf of the Appellants it was submitted that a class or category of documents consisting of documents emanating at the level of not below Assistant Secretary in the Public Service and being documents for the ultimate consideration of Ministers of the Government or of the Government itself, relating to the formulation of policy or proposals for legislation, were absolutely exempt from production and should not be examined by a judge before privilege was granted to them, unless the judge was dissatisfied with the accuracy of the description of thedocument.
The reasons put forward for the making of such a claim of privilege on behalf of the Executive organ of the Government were contained in the affidavit of John Hurley of the Department of the Taoiseach, at para. 4 thereof, in the following terms:
"I object to producing these documents on the grounds that confidential matters relating to the Government and the Cabinet and communications of this nature, together with communications made between the concerned Public Servants, should be protected from disclosure in the interests of good Government and the efficient and proper running of the Public Service. The disclosure of such documents would tend to hinder the free communication necesssary for such government and the proper running of the Public Service. I believe that to refuse privilege to documents of this nature would be contrary to the public interest as the proper working of the Government and State Departments would be affected, as officials might tend where possible to make their comments or suggestions or recommendations orally rather than in written format, and such a tendency would not be either in the interest of the public or in the interest of the efficiency of the Public Service."
As an alternative submission, Counsel on behalf of the Appellants contended that even if the Court were to reject the submission thus made it should conclude that the proper principle applicable to documents ofthisclass, when privilege was claimed for them, was that the onus would be on the party seeking their production, and would be a heavy onus of establishing exceptional circumstances before the privilege claimed on behalf of the Executive should be disallowed. To a large extent, the submissions made were based on the development of the law relating to public interest exemption or privilege in England, following upon the decision in Conway v. Rimmer 1968 A.C. Particular reliance was placed on the decision in Burma Oil v. The Bank of England 1980 A.C., and also on Evans v. The Chief Constable of Surrey 1989 2AER.
The Plaintiffs in the action claim a declaration that the decision and order made by the first-named Defendant with the consent of the second-named Defendant, pursuant to the provisions of Section 6(2) of the Urban Renewal Act 1986in so far as it purports to declare the George's Quay site owned by thefifth-namedDefendant and situate at George's Quay in the City of Dublin as an are a to be a designated are a for the purposes of the Act is ultra vires the powers of the first and second-named Defendants and is contrary to the purposes of the said Section, and the Act is null and void and of noeffect.
Amongst the grounds on which the Plaintiffs seek this relief are grounds that the decision was reached on criteria which are inappropriate or outside the objects and functions of the Act and on material which was not appropriate or without sufficient material.
Quite clearly, and there is not dispute about this in the appeal before us, memoranda and other documents coming into existence for the purpose of enabling the first and second named Defendant and indeed the Government, to reach decisions with regard to the exercise by the first-named Defendant with the concurrence of the second-named Defendant of his powers under Section 6(2) of the Act are clearly relevant tothe issues which will arise on the hearing of the action.
I have carefully considered the submission that this Court should resile from the decision formerly reached by it in Murphy v. The DublinCorporation.
I have come to the conclusion that it should not, and that that decision correctly states the law in Ireland concerning this question of a claim of "privilege" to exempt certain documents from production in litigation on the basis of the public interest.
It appears to me that the fundamental flaw in the submission made on behalf of the Appellants that a proper development of the law in this country concerning this question of privilege by the Executive in regard to documents dealing with Government decisions should follow a line of authority which appears to have developed in recent times in the English courts on that same issue is that it ignores the fundamental constitutional origin of the decision of this Court in Murphy v. The Dublin Corporation which, of course, has no application to the consideration of English courts dealing with the same question of privilege.
It appears to me appropriate that I should re-state by way of summary, but not by way of expansion or qualification, what appear to me to be the clear principles laid down by this Court in the judgment of Walsh J. in Murphy v. The Dublin Corporation and which, in my view, are a correct statement of the law on this topic. They can be summarised asfollows.
1. Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the Courts set up under the Constitution.
2. Power to compel the production of evidence (which, of course, includes a power to compel the production of...
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