Blythe v The Commissioner of an Garda Slochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Maurice Collins |
| Judgment Date | 23 October 2023 |
| Neutral Citation | [2023] IECA 255 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/435 |
[2023] IECA 255
Murray J.
Collins J.
Ní Raifeartaigh J
Record Number: 2019/435
High Court Record Number: 2019/6893P
THE COURT OF APPEAL
Disclosure – Wrongdoing – Norwich Pharmacal order – Appellant appealing from a Norwich Pharmacal order directing him to disclose certain information – Whether clear evidence of wrongdoing was absent
Facts: The defendant/appellant, the Commissioner of An Garda Síochána (the Commissioner), appealed to the Court of Appeal from an order made by the High Court (Humphreys J) on 18 September 2019 directing him to disclose certain information to the plaintiff/respondent, Mr Blythe. It was said that clear evidence of wrongdoing was a “necessary proof” for the grant of Norwich Pharmacal relief (Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133) in Ireland’s jurisdiction and that such evidence was absent in this case, particularly as regards the issue of identification of the plaintiff in the WhatsApp and Facebook material. It was next said that the Judge erred in finding that the Commissioner was sufficiently “mixed-up” in the wrongdoing to permit the making of an order; that was “a necessary element” in the granting of relief and it was said that the Judge applied an inappropriately low threshold test and had failed to have appropriate regard to the authorities which, it was said, required that it be shown that the Commissioner had “facilitated the wrongdoing” before an order could be made. The Judge was said to have wrongly balanced the competing rights and interests involved and, in particular, he had failed to give appropriate weight to the fact that the information sought was confidential information gathered in the course of an investigation by An Garda Síochána (AGS) into the possible commission of a criminal offence and the fact that the plaintiff had other avenues by which to obtain that information. The Judge was said to have erred in making an order extending beyond the provision of the names and addresses of the alleged wrongdoers and in terms which were uncertain and/or required the exercise of subjective judgment.
Held by Collins J that the Judge was entitled to conclude that the wrongdoing requirement was satisfied on the material before him; that material disclosed a genuine and plausible cause of action against the authors of the WhatsApp material in terms both of identification of the plaintiff and the defamatory meaning of that material, having regard to his specific life and family circumstances disclosed by the evidence. Collins J held that, on the particular facts, the allegedly wrongful transactions (the circulation of the WhatsApp messages and other allegedly defamatory material) were so intimately connected with the affairs of AGS (of which the Commissioner was the representative) that it could fairly be said that such transactions would not have taken place in the manner that they did (or indeed at all) without the involvement of AGS. Collins J noted that the plaintiff explained his position on affidavit and was not challenged on it and, in complaining that its investigation had been frustrated by the non-cooperation of the plaintiff, the affidavit evidence filed by AGS was noticeably lacking in specifics; the Judge was, in the circumstances, entitled to conclude that AGS had failed to demonstrate that there was some other practicable means by which the plaintiff could obtain the information necessary to commence his intended proceedings. Collins J held that the order made was limited to material of the same nature as the material identified by the plaintiff and which was in the possession of the Commissioner; there was a real prospect that there was additional material, whether in the group chats of which the plaintiff was aware and/or in other similar group chats and, in the circumstances, it was not unreasonable to go beyond the already identified material. Regarding the costs of making disclosure, the general rule was that the applicant should be liable for such costs and in Collins J’s view there were no grounds for departing from that general principle.
Collins J held that the Commissioner’s appeal must be dismissed, both as regards the substantive order made by the Judge and the manner in which he dealt with costs (other than as regards the costs of making disclosure).
Appeal dismissed.
JUDGMENT of Mr. Justice Maurice Collins delivered on 23 October 2023
In what circumstances and within what limits may a court order a party against whom no claim of wrongdoing is made to make disclosure to a plaintiff for the purpose of enabling that plaintiff to pursue some form of legal action against a third party? That, at the level of principle, is the issue raised by this appeal. 1
That the courts – or at least the superior courts – have jurisdiction to make such orders (commonly referred to as Norwich Pharmacal orders, after the decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133) is clear. That such a jurisdiction exists as a matter of Irish law was confirmed by the Supreme Court in Megaleasing UK Ltd v Barrett [1993] ILRM 497 and again in Doyle v Commissioner of An Garda Síochána [1999] 1 IR 249.
Culleton, “ The Law Relating to Norwich Pharmacal Orders” 2 offers a useful overview of the Norwich Pharmacal jurisdiction, as follows:
“A Norwich Pharmacal Order is a particular type of disclosure order where the only cause of action is discovery. Essentially, the order compels a defendant, who has become mixed up in the alleged wrongdoing of a third party in some manner, either knowingly or innocently, to disclose information that would assist to identify this third party wrongdoer to the plaintiff. The purpose of the order is therefore to place a plaintiff in a position to identify and seek redress against a previously unknown wrongdoer.
The authority to grant Norwich Pharmacal relief is founded on the court's equitable jurisdiction, derived from a ‘contemporary incarnation of the equitable bill of discovery’.
Therefore, it is a versatile remedy, granted at the discretion of the court, when deemed to be a proportionate and necessary response in all of the circumstances of a matter.” (at 20–21; footnotes omitted)
Even so, as the author goes on to discuss, there remains significant uncertainty as to the scope and purpose of the disclosure jurisdiction, the threshold conditions for its exercise and the factors to be considered in assessing whether or not to make a disclosure order in any given case. As in many other areas of the law, significant tensions arise between the desire for flexibility and the values of certainty and predictability – the age-old struggle between equity and law. The parameters of the disclosure jurisdiction have expanded significantly in England and Wales but it is not clear whether developments there can or should be followed here. Many of those areas of uncertainty are highlighted by this appeal.
The Appellant is the Commissioner of An Garda Síochána (hereafter “ the Commissioner”). He appeals from an Order made by the High Court (Humphreys J) on 18 September 2019 directing him to disclose certain information to the Plaintiff. It will be necessary to consider the precise form of the Order in due course but at this stage it is sufficient to note that the Order was made in proceedings brought against the Commissioner for the sole purpose of obtaining that relief – as it is sometimes referred to, an action for “ sole discovery.”
The plaintiff (“ the Plaintiff” or “ Mr Blythe”) was, until July 2019, a member of An Garda Síochána (“ AGS”), holding the rank of garda. In 2017, he applied for promotion to sergeant as part of a large competition involving a number of promotions from garda to sergeant and from sergeant to inspector. He was interviewed but was subsequently informed that he had not qualified for the second round of interviews. He sought an administrative review of that decision. He says that nothing happened by way of review and, in September 2018. in circumstances where the competition was about to conclude and the successful candidates announced, he brought proceedings against the Commissioner in the High Court. It appears that there were concerns within AGS that the proceedings would put all promotions arising from the competition on hold and there appear to have been some suggestions to that effect in the media.
Mr Blythe says that, around the time that he instituted those proceedings against the Commissioner, but before the proceedings had reached the public domain (a point emphasised by him as indicating that the fact that he had brought proceedings was inappropriately “ leaked” within AGS), he became aware that “ grossly defamatory and scandalous comments and photographs” relating to him were circulating on WhatsApp and Facebook. It appears that these objectionable messages (some consisting of images) circulated on WhatsApp groups comprised of members of AGS and were brought to Mr Blythe's attention by friends within AGS who had received or seen them. Screenshots of such messages and posts were sent to the Plaintiff.
In turn, Mr Blythe provided that material to AGS (redacted so as to avoid disclosing the identity of the persons who had sent it to him). The material, or at least some of it, was subsequently exhibited by him in the affidavit grounding his application to the High Court in these proceedings. The material also includes a number of public Facebook posts which he says refer to him. The persons posting those posts were named but I shall refer to them simply as AB and CD.
Mr Blythe was distressed by this material, which he says not only...
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