O'Brien v Ireland

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-HC 3784
• Docket Number: No. 14813p/1989,[1989 No. 14813P]
• Court: High Court
• Date: 01 January 1995

1994 WJSC-HC 3784

THE HIGH COURT

No. 14813p/1989

O'BRIEN v. IRELAND

BETWEEN

MARY O'BRIEN

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL AND THE MINISTER FORDEFENCE

DEFENDANTS

Citations:

BULA LTD V TARA MINES LTD 1991 1 IR 217

O'MAHONY V IRELAND & ORS UNREP BARRINGTON 27.6.89

CULLY V THE NORTHERN BANK 1984 ILRM 683

MURPHY V DUBLIN CORPORATION 1972 IR 215

AMBIORIX V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277

AG V TRIBUNAL OF INQUIRY 1993 ILRM 81

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 S9

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 SCHED 3

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 SCHED 3 ART 2 S4

RYAN V IRELAND 1989 IR 177

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/54 R121

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/54 R122

DEFENCE FORCES REGULATIONS A5 (1982) REG 11(2)

THE CHRISTINA 1938 AC 485

SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 2 IR 469

GOVERNMENT OF CANADA V EMPLOYMENT APPEALS TRIBUNAL 1992 ILRM 325

DEFENCE ACT 1954

RULES OF PROCEDURE (DEFENCE FORCES) 1954 SI 243/1954

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967

Synopsis:

PRACTICE

Documents

Discovery - Production - Objection - Privilege - Claim - Death of soldier in Lebanon - United Nations enquiry - Defence Forces enquiry - Reports of enquiries not discoverable - Privilege from production conferred by statute - (1989/14813 P - O'Hanlon - 26/8/94) - [1995] 1 I.R. 568 - [1995] 1 ILRM 22

|O'Brien v. Ireland|

1 Judgment delivered by O'Hanlon J.,the 26th day of August, 1994.

2 The Plaintiff has instituted proceedings against the Defendants claiming damages in respect of the death of her husband, who was killed by gun-fire in the Lebanon on or about the 6th day of December, 1986, while serving as a member of the Irish Army with the United Nations Peace-Keeping Force which was deployed in South Lebanon at that time. She claims that his death occurred in circumstances involving negligence and breach of duty of the Defendants, their servants and agents. This allegation has been denied by the Defendants in the Defence which has been filed on their behalf in the proceedings.

3 An application was made on behalf of the Plaintiff for an Order of Discovery of Documents against the Defendants, and an Order was duly made, and an affidavit of discovery has been sworn and filed by the Defendants in purported compliance with that Order. The Plaintiff, however, challenges the entitlement of the Defendants to claim privilege in respect of three items which feature at Nos. 5,6 and 7 of the Second Part of the First Schedule to the affidavit of discovery filed on behalf of the Defendants, which is dated the 26th day of February, 1993, and was sworn by Anne O'Neill of the Department of Defence, Dublin 9, a Higher Executive Officer in the saidDepartment.

4 The three items in question are described as follows in her saidaffidavit:-

5 2 "5. United Nations UNIFIL Board of Inquiry Report.

6 6. The United Nations Contingent Book of Inquiry Report.

7 7. The Court of Inquiry Report."

8 An application to the Master of the High Court to order further and better discovery having been refused by him on the 23rd March, 1993, the Plaintiff now moves the High Court for an Order directing the Defendants to make further and better discovery of the documentation in their possession relating to the death of the late Private William O'Brien and to specify by enumeration each and every document with the general classification of privilege claimed in respect of each such numbereddocument.

9 It appears that following the death of Private O'Brien while on active service in the Lebanon an official inquiry into his death was held under the auspices of the United Nations, and a further inquiry was held by a Court of Inquiry operating under our own Defence Acts with particular reference to the Act of 1954; the Rules of Procedure (Defence Forces), 1954,(S.I. No. 243 of 1954), and the Defence Forces Regulations, 1982, No. A.5. Regulation 11.

10 The Plaintiff contends that a large volume of documentation must have been generated in the course of these inquiries; that an obligation exists on the part of the Defendants when an affidavit of discovery is being sworn on their behalf, to enumerate each document with particularity so that the claim to privilege may be considered as a separate issue in respect of each document; and they further contest the applicability of the principle of privilege in respect of the documents in question.

11 I propose to deal first with the general claim to privilege advanced on behalf of the Defendants in respect of the documentation emanating from the two inquiries.

12 Discovery of documents in relation to the UNIFIL type of inquiry has already been considered by Mr. Justice Barrington in the case of O'Mahony v. The Minister for Defence, Ireland and the AttorneyGeneral, (1985 No. 10645P), in which he delivered a short judgment on the 27th June, 1989. The note I have been given of what appears to have been an ex tempore judgment, reads as follows:-

13 I have formed a very clear view on this matter. In relation to the report of the U.N.I.F.I.L. court of enquiry I accept that these were documents given by an international organisation to the Irish government in circumstances of confidence. The Irish government rightly take the view that it should observe that confidence. I think that this is a reasonable attitude. In respect of the proceedings of the Irish court of inquiry, there seems to be little doubt that as a result of Regulation A5, no. 11, that thoseproceedings enjoy the same type of statutory privilege identified by Mr. Justice O'Hanlon in the case of Cully v. The Northern Bank, (1984) ILRM 683. The only question which arises is whether the regulations 121 and 122 of the Rules of Procedure (Defence Forces) 1954, are ultra vires. Under the Defence Act, the Minister for Defence has the power to make regulations. Having regard to the nature of the work, and the security implications of the obligations of the defence force I do not consider that the regulations are unreasonable. Accordingly, I am not satisfied that they are ultra vires the powers of the Minister. Therefore it appears to me that the privilege claimed by the Defendants is correctly claimed.

14 In the affidavit of Anne O'Neill, sworn on the 29th July, 1993, on behalf of the Defendants, she makes the following averments:-

15 With regard to the privilege claimed in respect of the United Nations Reports I say and believe that U.N.I.F.I.L. is the United Nations interim force in the Lebanon. I say and believe that the United Nations is accorded privileges and immunities under the Diplomatic Relations and Immunities Act, of 1967and in the circumstances these privileges and immunities (including immunities of documents from legal process) applies to the documentation compiled in the two United Nations' Reports. I say and believe that it has always been the policy of the United Nations to maintain the policy of non-disclosure of these documents in such circumstances and that the United Nations are not prepared to waive this policy or privilege in the instant case. I further say and believe that it is in the public interest that this privilege be maintained and protected. The proceedings and reports of the United Nations Board of Inquiry into incidents such as the one complained of have always been treated as strictly confidential and have only been advanced to the Defendants on the strict understanding that such confidentiality is maintained. Inquiries which are held in respect of such incidents are held in circumstances which will allow the participants to give the fullest information possible. In addition, these reports often almost of necessity deal with matters of security the breach of which may endanger not only the Irish battalion, but the United Nations peace-keeping force generally. The United Nations considers these documents to be inviolable and will not permit the disclosure of information contained therein. In the circumstances the Defendants consider that they are obliged to assert that confidentiality in which to claim privilege in respect of the reports.

16 She then goes on to deal as follows with the further topic of the domestic inquiry held under the auspices of the Irish DefenceForces:

17 Aside from the issue of diplomatic privilege I say that essentially similar matters of public interest apply to the report of the Court of Inquiry held by the Defence Forces. In addition, as already indicated by me, I say and believe that the matters relating to this Report are protected by statute and by the Defence Forces regulations from publication or production and in the circumstances the claim to privilege in respect of the documentation contained in that Report is also made.

18 (par.5).

19 The Diplomatic Relations and Immunities Act, 1967, (No. 8 of 1967) to which she refers, provides as follows in sec. 9 of the Act:-

20 9. - The Organisation ( the United Nations Organisation) and its property and a person in relation to whom the Convention applies and the property of such a person shall have and enjoy inviolability, exemptions, facilities,...