Edward Keating v Raidió Teilifís Éireann and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 29 July 2013 |
| Neutral Citation | [2013] IEHC 393 |
| Court | High Court |
| Date | 29 July 2013 |
[2013] IEHC 393
THE HIGH COURT
BETWEEN
AND
AND
RSC O.31 r29
KEATING v RADIO TELEFIS EIREANN UNREP KEARNS 2013 2 ILRM 145 2013 IESC 22
AMBIORIX LTD v MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 277
MURPHY v DUBLIN CORPORATION 1972 IR 215
BREATHNACH v IRELAND 1993 2 IR 458 1992 ILRM 755
LIVINGSTON v MIN FOR JUSTICE UNREP MURPHY 2.4.2004 2004/28/6494 2004 IEHC 58
FOLEY v BOWDEN 2003 2 IR 607
KEATING v RADIO RELEFIS EIREANN 2013 2 ILRM 145 2013 IESC 22
GIBB v MIN FOR JUSTICE UNREP O'MALLEY 16.5.2013 2013 IEHC 238
Practice and procedure – Non-party discovery – Defamation – Privilege – An Garda Síochána – Allegations regarding the importation of drugs – Legal professional privilege – Whether discovery of documents detrimental to public policy and public interest – Rules of the Superior Courts, Order 31.
Facts The plaintiff had initiated proceedings seeking damages regarding claims for defamation and negligence. The proceedings arose out of a television programme broadcast by the defendant (RTE) in which it was claimed that the plaintiff was identified in connection with the importation of drugs. As part of the proceedings the defendant sought the discovery of certain documents from An Garda Síochána. The Gardaí sought to assert a claim of privilege over a number of the documents in question.
Held by Kearns P in refusing the defendant”s application: The court was obliged to have regard to the fact that the Garda Síochána was a non-party to the proceedings. The court was satisfied that it was not in the public interest to grant the defendant”s motion as to do so would undermine the protection, preservation and integrity of the State”s Witness Protection Programme. To grant inspection of the documents already discovered would not be in the public interest and would result in the disclosure of information of a confidential nature relating to the practices of An Garda Síochána.
JUDGMENT of Kearns P. delivered on the 29th day of July, 2013
This is the defendant's motion for inspection of discovery against the first named non-party, the Commissioner of An Garda Síochána, arising out of proceedings initiated against the defendant by the plaintiff seeking damages for defamation, negligence, breach of duty and breach of both Constitution and Convention rights on foot of a Prime Time programme broadcast on the 19 th July, 2001, investigating the importation of drugs into this jurisdiction and their subsequent possession for sale and supply, in which the plaintiff asserts, inter alia, that he was clearly identifiable.
On the 19 th July, 2001, the defendant broadcast an episode of the current affairs programme, "Prime Time", investigating the importation of drugs into this jurisdiction in the years 1995 and 1996, their subsequent possession for sale and supply and the persons allegedly involved in such criminal activities.
As the plaintiff's identity was clearly visible in the promotional "trailers" publicising the programme which were aired prior to the programme's transmission, An Garda Síochána requested the defendant to remove images and references to the name of the plaintiff. Consequently, on the night the programme was broadcast, the following announcement was made immediately prior to its airing:
a "[f]or reasons of security it has been deemed necessary to remove at late notice images and references to the name of one of the key individuals named in tonight's programme".
Arising from this broadcast, the plaintiff initiated proceedings against the defendant seeking damages for alleging that the programme had inferred that, not only was he a Garda informer and "criminal insider", but also participated in unlawful criminal activities for his own benefit and, therefore, had "served two masters". The plaintiff further alleged that the programme had identified him by name, with his image partially visible, notwithstanding the fact that the defendant had received a request from the first non-party to remove images of and references to the name of the plaintiff.
The defendant has admitted the broadcast in question, but has pleaded, inter alia, justification for the aforementioned allegations.
By notice of motion dated the 22 nd October, 2007, the defendant sought non-party discovery pursuant to O. 31, r, 29, from both non-parties, but specifically from An Garda Síochána of the following documents:
i "(i) All documents in the possession of An Garda Síochána concerning the plaintiff's involvement in the unlawful importation of controlled drugs into the State, or his possession for sale, distribution or supply of such controlled drugs."
On the 23 rd July, 2008, the High Court (McCarthy J.) made an order for discovery (following an appeal against the refusal of the Master of the High Court, dated the 18 th December, 2007, to grant discovery in the terms sought) against the Commissioner of An Garda Síochána in the above terms but limited its scope to documents created prior to but not after, the 19 th July, 2001, the date the Prime Time programme was broadcast. The second named non-party appealed the order as it pertained to them to the Supreme Court, in which McKechnie J. gave judgment of the court on the 9 th May, 2013. In Keating v. Radio Telefis Eireann [2013] IESC 22, the court held that the contention that disclosure would be detrimental to public policy and the public interest was a matter for the judiciary to evaluate, only they alone could weigh up the tension which may arise between the public interest in the administration of justice and any other competing public interests. The court ultimately dismissed the appeal, finding that the disclosure granted was not oppressive and rejected the argument for non-disclosure based futility as the motion for privilege was bound to succeed as the court was not convinced that such an argument would inevitably succeed and held that should an issue of privilege arise, it could be dealt with in the normal way.
The Assistant Commissioner of An Garda Síochána, Kevin Ludlow, swore an affidavit of discovery on the 22 nd December, 2008, in which he listed six categories of documents over which privilege is asserted, two of which on the grounds of legal professional privilege and the remaining four categories of documents over which privilege is claimed as follows:
1) Letter from Deputy Commissioner Conroy to the Assistant Commissioner Eastern Region dated the 26 th March, 1999 enclosing a 1 page report of Deputy Commissioner Conroy dated the 18 th March, 1999 in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork and a 4-page Report of Assistant Commissioner T.A. Hickey dated the 4 th January, 1999 to Deputy Commissioner, Operations also in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork.
2) 1 page printout from Cor_Reg (computerised correspondence register) from Private Secretary, Commissioners Office in respect of a fact finding mission concerning allegations of serious improprieties in the course of drugs and firearms cases in Cork.
3) 12 pages of diary entries from Detective Chief Superintendent T.A. Quilter.
4) 13 pages of notebook entries from Detective Chief Superintendent T.A. Quilter.
Public interest privilege is claimed in respect of each category of documents and is in the following identical terms:
"Public Interest Privilege is claimed in respect of this document on the basis that it concerns sensitive and confidential activities and practices of An Garda Síochána in the prevention and detection of crime and its disclosure would disclose key Garda intelligence and the sources of same potentially putting at risk the lives and wellbeing of the individuals referred to therein."
The defendant served a notice to produce documents, pursuant to O. 31, r 18, dated the 28 th April, 2009, to produce for inspection the four categories of documents referred to above. The first named non-party replied by letter dated the 1 st May, 2009, stating that it was not prepared to waive its claim of privilege over the said documents. Consequently, by notice of motion, dated the 24 th September, 2009, the defendant issued a motion for inspection of the above categories of documents.
In the affidavit grounding the above motion, Ms. Anne McManus, solicitor for the defendant, submitted that the following factors were relevant to the balancing exercise now facing the court. Firstly, that as the events, the subject of which the documents relate, occurred over a period of two years in 1995 and 1996, some thirteen years prior to the issuing of the motion for inspection, "both the confidentially and sensitivity of any given activities or practices of An Garda Síochâna in the prevention and detection of crime must decrease as the conduct of those activities or practices recedes further into the past".
Secondly, she contended that no person was ever charged or tried with any offence arising out of the investigation of those events and questioned whether any investigation of same remained open.
Thirdly, she submitted that, in the absence of any reprisal against the plaintiff in the intervening period, the possibility of disclosure of documents from 1995 and 1996 leading to such recourse must be regarded as nonexistent.
Fourthly, she further contended that the only suggested source of Garda intelligence was the plaintiff himself who had already publicly identified himself as a Garda...
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