Ambiorix Ltd v Minister for the Environment (No. 1)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [S.C. No. 163 of 1991]
• Court: Supreme Court

Ambiorix Ltd. v. Minister for the Environment (No. 1)

Ambiorix Ltd., Earlsfort Centre (Developments) Ltd., Ryde Developments (Ireland) Ltd. and Sharnbrook Ltd.

Plaintiffs

and

The Minister for the Environment, The Minister for Finance, Ireland, The Attorney General and Irish Life Assurance plc.

Defendants

[S.C. No. 163 of 1991]

Supreme Court

Practice - Discovery - Privilege - Privilege based on public interest - Confidentiality of documents originating at senior level of public service and intended for ministerial consideration - Whether such class of document exempt from pro- duction - Whether plaintiff entitled to discovery of correspondence between third parties and government departments - Onus of proof.

Constitution - Separation of powers - Administration of justice - Function of judicial power in production of evidence.

Planning and development - Designated area - Urban Renewal Act, 1986, (No. 19) s. 6, sub-s. 2.

By a decision of the first defendant, made with the consent of the second defendant, a site belonging to the fifth defendant was declared to be a "designated area" under s. 6 of the Urban Renewal Act, 1986. As a result of this decision certain economic and fiscal advantages accrued to the fifth defendant. The plaintiffs, who were property development companies, sought a declaration that the decision was ultra vires and contrary to the purposes of the Act of 1986 on the grounds, inter alia, that the decision was reached on inappropriate criteria or on a consideration of incorrect or insufficient material.

The High Court (Lardner J.) ordered discovery of documents and memoranda which had come into existence for the purpose of reaching the challenged decision. The defendants appealed the order on the grounds of privilege in the public interest based on the confidentiality of Cabinet communications the disclosure of which could prejudice the collective responsibility of the Government. The defendants submitted that the documents, which emanated from a senior level of the public service and which were intended for Ministerial consideration, related to the formulation of policy and legislative proposals and belonged to a class of documents which were absolutely privileged and which did not require to be examined by the trial judge. They also argued that a heavy onus of proof lay on the party seeking production of such documents to establish exceptional circumstances before the claim to privilege should be disallowed.

Held by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaberty and Egan JJ.) in dismissing the appeal but varying the order of the High Court, 1, that the law relating to claims of executive privilege on the grounds of public interest was correctly stated in Murphy v. Corporation of Dublin[1972] I.R. 215.

2. That, under the Constitution of Ireland, 1937, the administration of justice was committed solely to the courts and, therefore, any conflict between the public interest in the production of evidence and the public interest in the confidentiality of documents relating to the exercise of the executive power fell to be decided by the courts.

Murphy v. Corporation of Dublin [1972] I.R. 215 followed.

3. That the decision of the Supreme Court in Murphy v. Corporation of Dublin[1972] I.R. 215 was based on fundamental constitutional principles which did not apply to decisions made by the courts of other jurisdictions.

Conway v. Rimmer [1968] A.C. 910; Burmah Oil v. The Bank of England[1980] A.C. 1090 and Evans v. The Chief Constable of Surrey [1989] 2 All E.R. 236 not followed.

4. That the Executive could not prevent the courts from examining documents relevant to any issue in a civil trial for the purpose of deciding if they should be produced in evidence but that there was no obligation on the courts to examine any document and a claim of privilege could be upheld by the courts merely on the basis of a description of the nature or contents of a document.

5. That no class of document was exempt from production by reason of the rank of the public servant creating it or the identity of the person for whom it was intended.

6. That, once a court was satisfied that a document was relevant, the onus of proof lay on the party claiming the privilege to show why it should not be produced in evidence.

7. That the ability of an individual to exercise his right to challenge decisions of the Government was dependant on his right to avail of court procedures including those relating to discovery.

O'Keeffe v. An Bord Pleanála [1992] I.L.R.M. 237 approved.

8. That any party to an action who obtains production of documents by discovery was prohibited from making use of those documents except for the purposes of that action and it was an inherent jurisdiction of the courts to regulate the production of documents to prevent the infringement of this restriction.

9. That, consequently, those documents which constituted representations made by third parties to the government in the belief that such correspondence was confidential would be disclosed to the lawyers acting on behalf of the plaintiffs only on the undertaking that they would not reveal their contents to their clients without special leave of the trial court.

Cases mentioned in this report:—

Ahern v. Minister for Industry and Commerce [1990] 1 I.R. 55.

Air Canada v. Secretary of State for Trade [1983] 1 All E.R. 910.

Attorney General v. Simpson [1959] I.R. 105.

Australian National Airlines Commission v. Commonwealth of Australia(1975) 132 C.L.R. 581.

Burmah Oil v. The Bank of England [1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700; (1979) 123 S.J. 780.

Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874.

Cully v. Northern Bank Finance Corporation [1984] I.L.R.M. 683.

Duncan v. Cammell Laird [1942] A. C. 624; [1941] 1 K.B. 640; [1942] 1 All E.R. 587.

Evans v. The Chief Constable of Surrey [1989] 2 All E.R. 594.

Fletcher Timber Ltd. v. Attorney General [1984] 1 N.Z.L.R. 290.

Folens & Co. Ltd. v. Minister for Education [1981] I.L.R.M. 21.

Geraghty v. Minister for Local Government [1976] I.R. 153.

Glouster Properties Ltd. v. British Columbia (1982) 129 D.L.R. 275 3rd ed.

Golden Vale Co-op. v. Barrett (Unreported, High Court, Hamilton P., 6th June, 1986).

Holloway v. Belenos Publications Ltd. (No. 1) [1987] I.R. 405; [1987] I.L.R.M. 790.

Hunt v. County Roscommon V.E.C. (Unreported, High Court, McWilliam J., 1st May, 1981).

Incorporated Law Society v. Minister for Justice [1987] I.L.R.M. 42.

In re Kevin O'Kelly (1974) 108 I.L.T.R. 97.

Lanyon Pty. Ltd. v. Commonwealth of Australia (1974) 129 C.L.R. 650.

M. v. M. [1985] I.L.R.M. 186.

Murphy v. Corporation of Dublin [1972] I.R. 215; (1972) 107 I.L.T.R. 65.

O'Keeffe v. An Bord Pleanála [1992] I.L.R.M. 237.

O'Leary v. Minister for Industry and Commerce [1966] I.R. 676.

P.M.P.S. v. P.M.P.A. (Unreported, High Court, Blayney J., 31st October, 1989).

Smurfit Paribas Bank Ltd. v. AAB Export Finance Ltd. [1990] I.R. 469; [1990] I.L.R.M. 588.

The State (Quinn) v. Ryan [1965] I.R. 70; (1965) 100 I.L.T.R. 105.

Appeal from the High Court.

The facts have been summarised in the headnote and are set out in the judgment of Finlay C.J., post.

On the 3rd and 10th May, 1991, the High Court (Lardner J.) made orders for discovery of documents in respect of which the defendants had claimed privilege in the public interest. By notice of motion dated the 16th May, 1991, the defendants appealed against the judgment and order of the High Court on the grounds that the High Court had erred in holding that the documents were not subject to the benefit of the privilege claimed. An additional ground of appeal which had not been argued in the High Court was contained in an amended notice of appeal dated the 30th May...