O'Connor -v- Commissioner of An Garda Síochána & ors, [2018] IEHC 223 (2018)

Docket Number:[2006 No.3340 P]
Party Name:O'Connor, Commissioner of An Garda Síochána & ors
 
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THE HIGH COURT[2006 No. 3340 P]

BETWEEN

NOEL O’CONNOR PLAINTIFFAND

COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL DEFENDANTSNO. 2Judgment of Ms. Justice Baker delivered on the 27th day of April, 2018

  1. This judgment concerns the application by the plaintiff to be released from his implied undertaking regarding documents discovered by the defendants in the course of the proceedings and/or that that undertaking be modified insofar as to permit the discovered documents to be referred to, exhibited, or otherwise relied upon in the European Arrest Warrant (“EAW”) proceedings currently before the City of Westminster Magistrates’ Court and listed for hearing on 25 June 2018.

    Background

  2. The plaintiff claims damages against the defendants for negligence, breach of duty, breach of contract, in quasi-contract, misrepresentation and for breach of constitutional rights, and under the European Convention on Human Rights. The claim arises from the role engaged by the plaintiff at the material times as a Garda informant. The plaintiff claims that he entered into an agreement with the first defendant in July 1999 that he would so act as informant in relation to the activities of certain persons thought to be engaged in drug trafficking activities believed to be criminal in nature. The plaintiff claims that it was an express term of the agreement and/or that it was represented to him that the first defendant would take all necessary steps to safeguard his safety, keep his identity confidential and protect him from criminal prosecution in the State, or abroad.

  3. The events in respect of which these proceedings are brought arose following the detention in custody of the plaintiff in France on 7 August 2000 and his conviction and sentence in the courts of France for drug trafficking offences. The plaintiff claims that the first defendant failed to take such steps as were agreed, or which were reasonably to be expected, to protect his rights including direct intervention with state authorities in France.

  4. It is not denied by the first defendant that the plaintiff did perform some surveillance role or role as a person providing information, nor is it denied that payments were made to him in consideration of information that he provided to the first defendant.

  5. The plaintiff was detained in custody in France until his release in November 2000 following a Rogatory Commission between the French and Irish authorities.

  6. The plaintiff was tried in his absence in France in June 2002 and was convicted and sentenced to a term of five years’ imprisonment subsequently reduced to a term of four years after two appeals.

  7. The plaintiff has not served any of the sentence imposed by the French Court, and the present application arises following his arrest in the jurisdiction of England and Wales in January 2018 on foot of an EAW issued on 3 January 2008 by the Head of Prosecution Department at the Court of Appeal of Lyon, the hearing whereof stands adjourned before the City of Westminster Magistrates’ Court in London.

    The present motion

  8. The plaintiff seeks to be released from the implied undertaking and/or that that undertaking be modified in regard to the use of documents discovered in the course of the proceedings, some of which were the subject of a judgment delivered by me on 9 November 2016, O’Connor v. Commissioner of An Garda Síochána (No. 1) [2016] IEHC 634, following a claim by the defendants of public interest privilege over certain of those documents.

  9. Discovery has since been made and the precise documents and the course of the discovery process are not relevant to this judgment.

  10. The defendants resist the application their opposition is both principled and practical.

    The implied undertaking

  11. The law that governs the use of documents discovered in the course of litigation derives entirely from judicial decisions. It has been accepted in the authorities that such documents are disclosed subject to an implied undertaking that the documents not be used other than for the purposes of the litigation concerned. In some cases, a court will require an express undertaking where it considers that greater precision is required regarding the uses to which discovered information may be put: see for example House of Spring Gardens Ltd. v. Point Blank Ltd. [1984] 1 IR 611.

  12. The law was reviewed in this jurisdiction by Clarke J. in Cork Plastics (Manufacturing) v. Ineos Compounds UK Ltd [2007] IEHC 247, [2011] 1 IR 492 and the common law position operative in this jurisdiction is broadly similar to that found in the English Civil Procedure Rules, which replaced former practice in the jurisdiction of England and Wales.

    The power to modify the restriction

  13. The prohibition on the use of disclosed documents is capable of being modified and regulated by the court which may, in the exercise of its inherent jurisdiction, grant permission for the use of documents where there exists “special circumstances” to justify the release of the undertaking, whether in whole or in part, as explained by Kelly J. in Roussel v. Farchepro Ltd. [1999] 3 IR 567, at p. 574.

  14. Kelly J. rejected the contention that as a matter of law he was “devoid of jurisdiction to modify or vary the implied undertaking which exists concerning the documents which have been disclosed on discovery” and considered the argument that no such jurisdiction existed to have “little to recommend it either in law, logic or commonsense”. He rejected “an absolutist approach” as not justified, as it was likely to give rise to injustice and was not always necessary to provide protection for the rights of the parties. He expressly approved the judgment of the House of Lords in Crest Homes Plc. v. Marks [1987] 1 AC 829. He accepted too that, as a matter of practice, the High Court had made orders of the type sought.

  15. The circumstances in which the court may make an order to modify or release the implied undertaking depend on the case at issue, and at p. 574 Kelly J. quoted with approval Oliver L.J. in Crest Homes Plc. v. Marks, at p. 860:

    “[…] the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery.”

  16. The test thus identified is a two-part test: special circumstances have to be shown, and it has to be established that the making of the order would not occasion injustice to the person who had made discovery. The principles engaged are discretionary and must, in the words of Kelly J. at p. 574, involve the court looking:

    “[…] at all of the circumstances, including, if necessary, the circumstances of the original disclosure, the nature and the strength of the evidence, the type of wrongdoing which is alleged to be involved and the interests of both the applicant and the party providing discovery as well as any public interest which may be involved.”

  17. When Kelly J. came to apply the second limb of the test he took the view that the risk that confidentiality which might otherwise be afforded to the documents might be lost was a relevant factor. He held that no urgency could be shown for disclosure of the documents, and for that reason refused to permit disclosure of documents to the Swiss Court.

  18. I would add to these factors the proposition that as the jurisdiction is discretionary, the guiding principles must be the interests of justice and the court must balance in a proportionate way the competing interests of the parties.

    The issues of law arising in the English proceedings

  19. Messrs. Sternberg Reed Solicitors, who act for the plaintiff in the English extradition proceedings, have exhibited in an affidavit of Richard Cooper, a solicitor and partner in that firm, an opinion of counsel, Ms. Rachel Barnes, who acts for Mr. O’Connor. She describes the relevant principles of law relating to the doctrine of abuse of process in English law which are broadly familiar to Irish lawyers and quotes from the judgment of Diplock L.J. in Hunter v. Chief Constable of West Midlands Police [1982] AC 529, at p. 536, regarding the inherent power of a court “to prevent misuse of its procedures” in a way that might “be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.”

  20. Ms. Barnes states that surrender of Mr. O’Connor on foot of an otherwise valid EAW may be refused as an abuse of process by reference to the decision of the UK Supreme Court in Zakrzewski v. Regional Court in Lodz [2013] UKSC 2, [2013] 1 WLR 324, where the Court, having accepted that whilst the underlying purpose of the EU Framework Decision and Part 1 of the UK Extradition Act 2003, created “a simplified and...

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