Duncan v The Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judgment Date: 23 January 1997
• Date: 23 January 1997
• Docket Number: [1996 No. 1958 SS]
• Court: High Court

High Court

[1996 No. 1958 SS]

Duncan v. The Governor of Portlaoise Prison

In the matter of an application for an inquiry pursuant to Article 40, s. 4 of the Constitution of Ireland and in the matter of an application pursuant to the Habeas Corpus (Ireland) Act

1781.

Anthony Duncan

Applicant

and

The Governor of Portlaoise Prison

Respondent

The Minister for Justice, Ireland, The Attorney General, The Commissioner of An Garda Síochána and The Director of Public Prosecutions, Notice Parties

Cases mentioned in this report:—

Ambiorix Ltd. v. Minister for the Environment [1992] 1 I.R. 277; [1992] I.L.R.M. 209.

Berkley Administration Inc. v. McClelland (1990) F.S.R. 381.

Re Grosvenor Hotel, London [1964] Ch. 464; [1963] 3 W.L.R. 955; [1964] 1 All E.R. 92.

Jones v. Monte Video Gas Co. (1880) 5 Q.B.D. 556.

Lonrho plc v. Fayed (No. 3) [1993] T.L.R. 347.

Application of Maguire [1996] 3 I.R. 1.

Maher v. Attorney General [1973] I.R. 140; (1973) 108 I.L.T.R. 41.

Murphy (a minor) v. J. Donohue Ltd. [1995] 2 I.L.R.M. 509.

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

R. v. Derby Magistrates' Court, ex p. B. [1995] 3 W.L.R. 681; [1995] 4 All E.R. 526.

Practice and procedure - Discovery - Legal professional privilege - Executive privilege - Whether applicant entitled to cross-examine deponents in order to determine whether claim to privilege validly made - Whether applicant entitled to cross-examine deponents as to adequacy of discovery - Further and better discovery.

Privilege - Legal professional privilege - Documents directed to or emanating from legal advisor written for purpose of obtaining legal advice - Executive privilege - Application to inspect documents so that oral hearing might be held on claim of privilege - Whether documents might be examined to determine whether, in addition to containing legal advice they might also contain factual matter to which legal professional privilege would not extend - Whether such matter might be severed from otherwise privileged document.

Motion on notice.

The facts have been summarised in the headnote and are summarised in the judgment of Kelly J., infra.

The motions were heard by the High Court (Kelly J.) on the 13th December, 1996.

The applicant was detained in custody in Portlaoise Prison on foot of a committal warrant issued by the Special Criminal Court on the 7th November, 1996. He had previously been detained on foot of a purported order of that court dated the 8th October, 1996. That order was made when one of the judges who sat on the Special Criminal Court was in fact ineligible to do so and, as a result, the purported order was invalid. The applicant was released from custody on the night of the 6th/7th November, 1996 and re-arrested immediately.

The High Court (Carney J.) directed an inquiry pursuant to Article 40, s. 4, sub-s. 2 into the lawfulness of the applicant's detention. In the course of that inquiry an order was made by the High Court (Kelly J.) on the 22nd November, 1996, directing the first, third and fifth notice parties to make discovery relating to:

• (a) the circumstances of the removal of the applicant from the custody of Portlaoise Prison on the night of the 6th November, 1996, and the early morning of the 7th November, 1996, into the custody of An Garda Síochána;

• (b) the nature of the irregularity, said by counsel for the Attorney General, in addressing the Special Criminal Court on the 7th November, 1996, to exist in relation to the detention of the applicant in custody on or before the 6th November, 1996, and

• (c) the date and circumstances in which the irregularity referred to at (b) above and/or the facts constituting or giving rise to the same, came to the attention of the respondent and/or the notice parties, including all notes, correspondence or memoranda constituting or reflecting the means by which said matters came to their attention.

The first, third and fifth notice parties claimed legal professional privilege in respect of certain documents. In addition, the first notice party asserted a claim to executive privilege in respect of one of those documents because, it was claimed, it was a communication that in the public interest required confidentiality for the proper functioning of the public service. Similarly, the third notice party claimed executive privilege in respect of several of the documents which were the subject of the claim to legal professional privilege on the grounds that they were:—

• (i) confidential communications between, on the one hand, a Minister of Government or a Department of Government and, on the other, the Attorney General and his officials, or between officials of the Attorney General in relation to affairs of State; and

• (ii) confidential communications between the Chief State Solicitor and the Department of the Taoiseach for the purpose of supplying information for Dáil debates and questions.

The applicant sought a series of orders, including an order directing the first, third and fifth notice parties to produce for inspection by the court and by the applicant the documents in respect of which privilege had been claimed so that an oral hearing on the claims of privilege could be held and an order for further and better discovery. The applicant did not contest the existence of legal professional privilege in respect of the documents in question but argued that, in addition to containing legal advice they might also contain factual matter to which legal professional privilege would not extend.

The applicant also served on the notice parties a notice to cross-examine the deponents on their affidavits of discovery in relation to the privilege which was claimed by them and also to establish whether or not there were documents in the possession, power or procurement of the respective notice parties which ought to have been discovered but had not been.

The applications were opposed by the notice parties.

Held by Kelly J., in refusing the reliefs sought and in making an order for the exchange of pleadings between the parties, 1, that there was no rule in Irish law that an affidavit of discovery was to be considered as conclusive and incapable of ever being the subject of cross-examination. The administration of justice, vested by the Constitution in the courts, required that the courts have the ability to adjudicate fully upon the adequacy of an affidavit of discovery. In exceptional circumstances, this might involve cross-examination of the deponent of such an affidavit. To hold otherwise would mean that the court would be prevented from investigating the accuracy or adequacy of an affidavit of discovery and would have to accept at face value whatever was averred therein.

Maher v. Attorney General [1973] I.R. 140 applied.

2. That this rule applied a fortiori where the court was engaged in an inquiry pursuant to Article 40, s. 4 and the court must be astute to ensure that the remedy therein provided could be obtained efficasiously.

Application of Maguire [1996] 3 I.R. 1 considered.

3. That cross-examination on an affidavit of discovery was permissible only in extremely rare circumstances where it was both necessary and where other remedies provided, such as orders for further and better discovery, delivery of interrogatories and inspection by the court of documents referred to in an affidavit of discovery, proved inadequate.

4. That legal professional privilege was a fundamental condition on which the administration of justice as a whole rested. The proposition that the court should direct the production of the documents in respect of which legal professional privilege was claimed and, in effect, edit them so as to make matter in them disclosable to the applicant was unprecedented and, apart from being impractical, would amount to a serious interference with the whole notion and effect of legal professional privilege.

• R. v. Derby Magistrates' Court, ex p. B. [1995] 3 W.L.R. 681 considered.

5. That, as regards the claim to executive privilege, it was clear that in an appropriate case the court could direct the production of a document for the purpose of examination by the court and, upon inspection, the court would decide whether it was exempt from production or not.

Ambiorix Ltd. v. Minister for the Environment [1992] 1 I.R. 277 and Murphy v. Dublin Corporation[1972] I.R. 215 applied.

6. That, in this case, each of the documents in respect of which executive privilege was claimed was also the subject of a valid claim to legal professional privilege and, therefore, it was inappropriate for the court to direct their production for the purposes of examination by it. Furthermore, even if the court, having examined the documents in question, were to hold that executive privilege did not attach to them, they could not be disclosed to the applicant by reason of the existence of a valid claim to legal professional privilege.

7. That, similarly, the application to cross-examine in relation to the claim to executive privilege must also be dismissed.

8. That, having regard to the detailed affidavits of discovery made by the notice parties, the applicant had not demonstrated the likelihood of the existence of further or other documents relevant to the issues in the proceedings. Accordingly, it was neither necessary nor appropriate to allow the applicant to cross-examine as to the adequacy of the discovery made by the notice parties.

Cur. adv. vult.

Kelly J.

Introduction

The applicant is detained in custody on foot of a committal warrant issued by the Special Criminal Court on the 7th November, 1996. He had previously been detained by a purported order of the same court dated the 8th October, 1996. It is common case that the order of the 8th October, 1996, was made by the Special Criminal Court in circumstances where one of the judges who sat on it was ineligible so to do. That judge was His Honour Judge Lynch. He...