Corcoran v Commissioner of an Garda Siochana

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date04 January 2020
Neutral Citation[2021] IEHC 11
Docket Number2019 No. 200 J.R.
Date2020
CourtHigh Court
BETWEEN
EMMETT CORCORAN
ONCOR VENTURES LIMITED T/A “THE DEMOCRAT”
APPLICANTS
AND
COMMISSIONER OF AN GARDA SÍOCHÁNA DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

[2021] IEHC 11

Garrett Simons

2019 No. 200 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered on 4 January 2021
INTRODUCTION
1

The principal judgment in these proceedings was delivered on 11 September 2020, Corcoran v. Commissioner of An Garda Síochána [2020] IEHC 382. This supplementary judgment addresses a number of consequential matters, including (1) the precise form of order, (2) the allocation of costs, and (3) the form of stay pending an appeal. These issues are addressed in sequence under separate headings below.

2

The parties filed submissions on these issues on 6 November 2020, and 14 December 2020, respectively.

2
(1) FORM OF ORDER
3

The form of order proposed in the principal judgment had been a declaration to the effect that the examination of the content of the journalist's mobile telephone is to be limited to specified content created during the period 11 th – 17 th December 2018 (both dates inclusive). However, it now appears from the written submissions filed on behalf of An Garda Síochána that the actual logistics of accessing the content of a mobile telephone are more complex than I had appreciated. In particular, it seems that it is not technically possible to download part only of the content of a mobile telephone. Instead, it will be necessary to download and decode the full file system. A separate report will then be prepared identifying the relevant content over the period 11 th – 17 th December 2018.

4

For the avoidance of any doubt, the report is not to include contact details (such as names, telephone numbers, email addresses etc.) saved on the mobile telephone.

5

This report will be transferred on an encrypted drive to a nominated member with the rank of Chief Superintendent. The Chief Superintendent is independent from, and not connected to, the Garda investigation into the events at Falsk, Strokestown, Co. Roscommon on 16 December 2018. The report will be supplied by the Chief Superintendent to the investigating team. A copy of the report is also to be supplied to the applicants' solicitor.

6

The downloaded version of the mobile telephone's full file system will next be deleted from the computer system in Garda Headquarters, with the consequence that the only data retained by An Garda Síochána will be that on the encrypted drive. It is also proposed that An Garda Síochána will retain the mobile telephone device itself; presumably this is because it may be necessary to produce the device as evidence in the pending criminal proceedings. The device is to be held by the Chief Superintendent.

7

Given that the process of examining the mobile telephone is more involved than had been appreciated at the time the principal judgment was delivered, it is necessary to revise the proposed order. The order will take the form of an injunction, restraining An Garda Síochána from accessing and examining the content of the mobile telephone other than in accordance with the procedure outlined above. Both parties will have liberty to apply. As discussed presently, the order will be stayed pending appeal. If the appeal is unsuccessful, the parties will have liberty to apply to the High Court to finetune the precise form of the order in the light of any technological advances in the interim.

8

In circumstances where the order will take the form of an injunction, and is thus subject to enforcement by the court, the order will not recite that the judicial review proceedings have been dismissed.

(2). ALLOCATION OF COSTS
9

The submissions of both parties approach the question of costs by reference to Part 11 of the Legal Services Regulation Act 2015 (“ the LSRA 2015”). This pragmatic approach makes it unnecessary for the court to make a formal determination on the extent, if any, to which the new costs regime has retrospective effect, i.e. applies to costs incurred prior to the commencement of the relevant provisions of the Act on 7 October 2019. As it happens, most of the costs the subject of this judgment were incurred after this date: the three-day hearing took place in July 2020; and thus the issue of retrospective effect might well be academic in this case.

10

Part 11 of the LSRA 2015 draws a distinction between a party who is “entirely successful” in proceedings, and a party who has only been “partially successful”. The default position is that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court, in the exercise of its discretion, orders otherwise. The reasons for such an order must be stated. A non-exhaustive list of the factors to be taken into account by a court in exercising its discretion are enumerated under section 169(1).

11

No such default position applies in respect of a party who has only been “partially successful”. As explained by Murray J. in Higgins v. Irish Aviation Authority [2020] IECA 277 (at paragraph 10), such a party may nevertheless be entitled to recover all of their costs in an appropriate case.

“[…] it is particularly important to bear in mind that whether a party is ‘entirely successful’ is primarily relevant to where the burden lies within process of deciding how costs should be allocated. If a party is ‘entirely successful’ all of the costs follow unless the Court exercises its discretion to direct otherwise having regard to the factors enumerated in s.169(1). If ‘partially successful’ the costs of that part on which the party has succeeded may be awarded in its favour, bearing in mind those same factors. Indeed, having regard to the general discretion in s.168(1)(a) and O.99 R.2(1) a party who is ‘partially successful’ may still succeed in obtaining all of his costs, in an appropriate case.”

12

The judgment in Higgins goes on to explain that in determining whether a party has been “entirely successful” for the purposes of section 169(1), the correct approach is to look beyond the overall result in the case and to consider whether the proceedings involve separate and distinct issues. If so, it is appropriate to determine which side succeeded on those issues.

13

The Court of Appeal has confirmed in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183 that even where a party has not been “entirely successful”, the court should still have regard to the matters set out in sub-section 169(1) when deciding whether to award costs.

14

Applying these principles to the circumstances of the present case, the applicants certainly cannot be said to have been “entirely successful” in the proceedings. The objective of the proceedings had been to restrain An Garda Síochána from examining any of the content of the journalist's mobile telephone. This relief was refused in the principal judgment.

15

It is less clear-cut whether the applicants might be said to have been “partially successful”. The institution of the proceedings appears to have conferred some benefit upon the applicants in that An Garda Síochána, by letter dated 10 May 2019, offered to limit their examination of the mobile telephone to activity over the course of a specified period spanning the date of the incident at the repossessed property on 16 December 2018.

16

I am satisfied that the applicants would be entitled to their costs up and until the date of that offer. But for the institution of the proceedings, the applicants could have had no assurance that a more extensive examination of the mobile telephone would not have taken place.

17

The question then becomes whether it was reasonable for the applicants to continue to pursue the proceedings after receipt of the letter of 10 May 2019. For the reasons which follow, I have concluded that it was, and that the applicants are entitled to recover their costs of the proceedings.

18

These proceedings raise important issues of principle in relation to freedom of expression, and, in particular, the protection of journalistic sources. More specifically, the proceedings required consideration of the difficult question of how the public interest in the proper investigation and prosecution of criminal offences is to be balanced against the public interest in a free press. Notwithstanding that the applicants were ultimately unsuccessful in obtaining all of the relief sought, the taking of the proceedings was nevertheless in the public interest. The issues of principle presented by these proceedings transcend the facts of the case and are of general public importance. These proceedings appear to have been the first proceedings in which the question of the seizure of a journalist's mobile...

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