Egan v O'Toole

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Finnegan,Denham J.
• Judgment Date: 15 November 2007
• Neutral Citation: [2005] IESC 53
• Docket Number: Appeal No. 424/04
• Date: 15 November 2007

[2005] IESC 53

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J

Appeal No. 424/04

Egan v. O'Toole

Between

Shane Egan

Plaintiff/Appellant

and

Patrick O'Toole

Defendant/Respondent

Abstract:

Practice and procedure - Discovery - Privilege - Public interest - Inter-state communications - Confidentiality - Extradition - Plaintiff requesting documentation relating to his arrest and request for extradition - Plaintiff seeking stay on extradition proceedings until documentation furnished - Whether public interest in non-disclosure of inter-state communications outweighing public interest in disclosure of such communications for purposes of fair disposal of extradition proceedings - Whether production of documents should be ordered - Stay - Whether stay should be granted in interests of justice until documents discovered - Extradition Act 1965, section 50

Facts: the extradition of the plaintiff was sought by the authorities in England for various offences allegedly committed there. He was arrested by the gardai and brought before the District Court which ordered his extradition. He then appealed that decision to the High Court pursuant to section 50(2)(bb) of the Extradition Act 1965. By notice of motion, the plaintiff then requested discovery of various documents relating to the issuing of a warrant for his arrest in England and the subsequent request for his extradition which had been communicated between the English and Irish authorities and sought a stay on the extradition proceedings until the said documents were furnished to him. The High Court refused his application and the plaintiff appealed to the Supreme Court. The Defendant objected to the discovery of ht documents on the basis that they were confidential and privileged.

Held by the Court in dismissing the appeal that the substantive (criminal) proceedings occur in the requesting State. The jurisdiction of the courts, subject to constitutional rights, under the Act of 1965, was limited to meeting the requirements set out in the Act. Accordingly, the common law principle that a foreign party on whose behalf litigation was being conducted in the State was amenable to discovery should not be extended to the sui geneus proceedings under the Extradition Act 1965, as amended, which enabled rendition between Ireland and England and Wales, once the formalities of the Act had been met and which were not the equivalent of shadow litigation. In determining whether or not to order production of communications which were claimed to be privileged, the court had to balance the public interest in maintaining the confidentiality of documents furnished in the extradition request against the public interest in all the relevant evidence being before the court for the purposes of litigation. Moreover, documents sought which had not been produced were not ‘deployed’ in the proceedings and so privilege was not waived.

Reporter: P.C.

1 Judgment delivered on the 29th day of July, 2005 by Denham J.

2 1. This is an appeal by Shane Egan, the plaintiff/appellant, hereinafter referred to as the plaintiff, from the judgment and order of the High Court (Kelly J.) delivered on the 15th day of June, 2004. Patrick O'Toole, Assistant Commissioner of An Garda Síochána, being the person who endorsed the warrant, is named as the defendant/respondent in his official capacity.

3 2. The plaintiff and Desmond Guerins are alleged to have conspired dishonestly to obtain money transfers by deception by allegedly making false representations that certain companies would provide training in England for which they obtained or attempted to obtain government grants.

4 3. It is alleged that the offences took place between 18th day of December, 1996 and the 22nd day of January, 1999.

5 4. A warrant for the arrest of the plaintiff was issued by the authorities in the requesting state on the 10th day of December, 1999, and that warrant was received by the Garda Síochána on or about the 17th day of December, 1999. On the 8th day of June, 2000 the Attorney General (pursuant to his powers under s.44 of the Extradition Act, 1965, as amended) declined to intervene to prevent the rendition, and on the 21st of June, 2000 the Minister for Justice, Equality and Law Reform indicated his intention not to intervene. The warrant was endorsed by the defendant, Patrick O'Toole, Assistant Commissioner of the Garda Síochána, on the 11th day of July, 2000. The plaintiff was arrested on the 21st day of December, 2000.

6 5. On the 30th day of July, 2001, the District Court ordered the delivery of the plaintiff into the hands of the Devon and Cornwall police.

7 6. The plaintiff has appealed the decision of the District Court to the High Court pursuant to s.50 of the Extradition Act, 1965, as amended, and in particular s.50(2) (bbb), on the grounds:

8 (a) That the offence specified in the warrant does not correspond with any offence under the law in the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum of at least six months;

9 (b) That by reason of the lapse of time since the alleged commission of the offence specified in the warrant, and the other exceptional circumstances set forth in the affidavit of the plaintiff, that it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up in accordance with the order of the learned Judge of the District Court.

10 7. However, this is not an appeal on that application. This is an appeal from a decision of the High Court in relation to reliefs sought by the plaintiff by way of a Notice of Motion.

11 8. By Notice of Motion the plaintiff sought the following reliefs:

12 (i) An Order restraining the defendant from taking any further step in these proceedings until such time as those documents referred to in a request by the plaintiff to the Devon and Cornwall Constabulary dated 15th February, 2002, or an account of any such documents production of which is properly objected to or impossible, are furnished to the plaintiff or his solicitors.

13 (ii) An Order disallowing the defendant's objection to producing the following documents:

14 (a) the documents in Schedule One, Part Two, Section Two, of the Affidavit of Discovery sworn by Christopher Doyle on the defendant's behalf on the 28th May, 2003;

15 (b) the documents in Schedule One, Part Two, of the Affidavit of Discovery sworn by Michael Heffernan on the defendant's behalf on 4th June, 2003 and requiring the defendant to produce them for the Plaintiff's inspection;

16 (iii) Further or in the alternative, an Order requiring the defendant to produce those documents for the inspection of this Honourable Court, and its determination whether the objections maintained by the defendant to producing these documents for the plaintiff's inspection are valid.

17 (iv) An Order debarring the defendant from relying on the Affidavit of Peter Kilpatrick sworn herein on 29th June, 2002, unless the following documents referred to therein are furnished to the plaintiff:

18 (a) Statements of complaint in relation to the allegation against the plaintiff taken in 1998;

19 (b) Papers sent by the Plymouth Branch of the Crown Prosecution Service to the Crown Prosecution Service Casework Directorate;

20 (c) An information on Oath laid by Detective-Constable Kilpatrick.

21 (v) Such further or other order as may to this Honourable Court seem meet and just.

22 (vi) An Order providing the costs of this application.

23 9. The High Court gave an ex tempore ruling on the 15th day of June, 2004.

24 10. Against that order the plaintiff has appealed to this Court on the following grounds:

25 (i) That the learned Judge of the High Court erred in law in ruling that the Court's power to restrain a party from taking a step in proceedings until that party had obtained documents from a non-party and made them available to another party to the proceedings did not extend to permitting the Court to restrain the State or its representative (such as the Defendant/Respondent) from taking any further step to defend proceedings under Section 50 of the Extradition Act, 1965, as amended, until it obtained from the requesting State under that Act documents sought by the plaintiff in the Section 50 proceedings in support of his claim therein:

26 (ii) That the learned Judge of the High Court erred in law in failing to apply by analogy the decision of this Honourable Court by which it has been held that the claim of a plaintiff in personal injuries proceedings may be stayed until he has submitted to a medical examination by the defendant's experts; and has furnished the defendant or his experts with sufficient information to enable a meaningful examination to take place:

27 (iii) That the learned Judge of the High Court erred in law in supposing that that decision could be distinguished by reason of the difference in facts between it and this case and/or that it could be distinguished in principle:

28 (iv) That the learned Judge of the High Court erred in law in ruling that for the Court to restrain a party from taking a step in proceedings until that party had obtained documents from a non-party and made them available to another party the party to be restrained would have to be the agent stricto sensu of the non-party:

29 (v) That the learned Judge of the High Court erred in law, or in a mixed question of fact and law, in his balancing of the public interest in the due administration of justice against such public interest as was asserted by the Defendant/Respondent to justify his withholding the documents sought at Paragraph 2 of the Notice of Motion f 16th October, 2003, herein, and failed to give sufficient weight to that aspect of the public interest which favoured disclosure:

30 (vi) That the learned Judge of the High Court erred in...